author: DORMAN L. STEELMAN, Special Judge.

text:
    Morgan R. WALKER and Anna F. Walker, Plaintiffs-Respondents, v. MULTI-WOOD PRODUCTS, INC., Defendant-Appellant.
    No. 10540.
    Missouri Court of Appeals, Southern District.
    May 14, 1979.
    Gerald D. McBeth, Ewing, Ewing, Carter, McBeth & Smith, Nevada, for defendant-appellant.
    Joseph B. Phillips, Phillips & Phillips, Stockton, for plaintiffs-respondents.

      Before HOGAN, P. J., STONE, J., and GRIMM, MeHANEY and STEELMAN, Special Judges.
   DORMAN L. STEELMAN, Special Judge.

This case arises from a petition for damages filed in the Circuit Court of Cedar County, Missouri, on April 19, 1974. The petition alleged that plaintiffs-respondents’ lake had been contaminated by a leakage of pentachlorophenol from defendant-appellant’s place of business. Service of process was had by timely delivery of the petition and summons to Mr. Larry Tittle at his place of business in El Dorado Springs.

Appellant filed a Motion to Dismiss for failure to state a cause of action on the ground the Court did not have jurisdiction over the parties nor the subject matter. Said Motion was overruled and appellant filed its Answer on June 21, 1974.

On March 24, 1975, a Stipulation of Compromise and Settlement was filed and judgment entered accordingly. Said Stipulation was signed by respondents and appellant (represented by Larry Tittle, agent), and both parties’ legal counsel.

On June 18, 1976, appellant filed its Petition to Set Aside Judgment, Petition to Quash Execution and Motion to Expedite. Respondents filed their Motion to Strike on August 23,1976. The cause was tried without a jury on September 10, 1976. The Court took the matter under advisement and on October 27, 1976, entered judgment for respondents. In due time the appeal was perfected to this Court.

Appellant’s brief has one “point” relied on. Rule 84.04(d), V.A.M.R., says the points relied on shall state briefly and concisely what actions or rulings of the Court are sought to be reviewed. The purpose of this rule is to focus a beam of light on claimed errors in order that litigants and appellate courts may visibly know, by a concise summary, the issues sought to be reviewed. Cavaness v. Armstrong, 525 S.W.2d 446 (Mo.App.1975). The appellant’s “point” relied on is worded as though the appellant was not served with process on its own Petition to Set Aside the Judgment. It is not the province of this Court to attempt to read the minds of appellant’s attorneys, but as best as we can determine, appellant is complaining about the service of process of the original petition.

On this basis, we have the right to summarily dismiss appellant’s brief from our consideration. In State Highway Commission v. City of Sullivan, 520 S.W.2d 186 (Mo.App.1975), the Court said the “points” raised by appellant failed to comply with Rule 84.04, V.A.M.R., governing appellate briefs and, therefore, did not warrant discussion or consideration by the Court of Appeals. See also Kerr v. Ehinger, Inc., 515 S.W.2d 763 (Mo.App.1974).

It is patently obvious that the “point” purportedly raised by appellant in its brief violates both the letter and the spirit of Rule 84.04, V.A.M.R. However, for purposes of this case the Court will assume appellant is referring to the service of process of the original petition.

The issue at the trial was mutually agreed to be the authority of Mr. Tittle to: (1) receive the service of process on behalf of appellant; (2) retain an attorney, then authorize him to enter an appearance on behalf of appellant; and (3) stipulate to the aforementioned judgment on behalf of appellant.

Mr. Ray N. Fowler, the attorney who appeared on behalf of the corporation, Mul-ti-Wood Products, Inc., filed pleadings and stipulated to the judgment, was called as a witness by appellant. He testified to the following: that he represented Multi-Wood Products, Inc., with regard to a criminal pollution charge arising out of the leakage of pentachlorophenol out of which this civil action arose; that in the criminal charge he dealt with Kenneth T. Hanson of Forest City, Iowa, President of Multi-Wood Products, Inc. Mr. Fowler stated that when the appeal on the criminal matter was started he dealt exclusively with Larry Tittle. He testified that he was told by Mr. Hanson in the process of working on the criminal matter that he could deal with Mr. Tittle, use him in any way that he wanted. He understood that Larry Tittle had full authority to dispose of the criminal matter. Mr. Fowler also testified on cross-examination that he felt the settlement of the civil case, which he negotiated, was fair and reasonable under all the circumstances of the case as he understood them.

The existence of an agency relationship is a question of fact for the trier of facts and this finding of the trial court will not be set aside unless clearly erroneous. Labor Discount Center, Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407 (Mo.App.1975). However, in this case, where there was conflicting testimony as to the actual authority of Larry Tittle to receive service of process on behalf of appellant, due weight should be given to the trial court’s determination. It is not necessary for this Court to reach the question of whether there were sufficient facts for the trial court to find that Larry Tittle had actual authority to receive service of process, because Mr. Tittle had implied authority to receive service of process. Implied authority is proved by deductions or inferences from other facts and circumstances in the case. This may be prior habits or as in this case, dealings of a similar nature between the parties. Dudley v. Dumont, 526 S.W.2d 839 (Mo.App.1975). Implied authority arises from the concept of where one party has so acted that others are led to believe in the right of a third person to act as agent. If any loss occurs by reason of the acts of the supposed agent, the loss must fall upon the person whose conduct caused the mistake. City of Springfield for Use and Benefit of Horton v. Koch, 228 Mo.App. 511, 72 S.W.2d 191 (1934). Furthermore, the existence of an agency relationship is a question for the trier of fact. Labor Discount Center, Inc. v. State Bank and Trust Company of Wellston, supra, 526 S.W.2d 407. The scope of appellate review of a case tried by a court without a jury is to find by Rule 73.01, V.A.M.R., that: (a) the Court shall review the case upon both the law and the evidence as in suits of an equitable nature; (b) due regard shall be given to the opportunity of the trial court to have judged the credibility of the witnesses. Under the decision of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), this rule means that the judgment of the trial court must be sustained by the appellate court unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) it erroneously declares the law, or unless it erroneously applies the law. We have reviewed the record and conclude that there was sufficient evidence for the court to make its findings that service of process on Larry Tittle as agent for appellant, Multi-Wood Products, Inc., was proper and valid. We conclude that service of process on Tittle was within the realm of implied agency and accordingly affirm the findings of the trial court.

All concur.


source: Caselaw Access Project

author: BILLINGS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Dwight CHILDERS, Defendant-Appellant.
    No. 11041.
    Missouri Court of Appeals, Southern District, En Banc.
    May 17, 1979.

      John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Richard L. Parker, Asst. Public Defender, Vienna, for defendant-appellant.
   BILLINGS, Judge.

Defendant James Dwight Childers was convicted by a Maries County jury of stealing property of a value of at least $50 [§§ 560.156, 560.161, RSMo 1969] and sentenced as a habitual criminal to a three-year prison term. Claiming he was entitled to an instruction submitting the offense of stealing property of a value less than $50 defendant has appealed. We affirm.

Defendant’s single point is not preserved for review because the refused instruction, tendered by defendant, is not set forth in the argument portion of his brief as required by the rules. Rules 28.18 and 84.04(e), V.A.M.R.; State v. Stuebinger, 552 S.W.2d 338 (Mo.App.1977). Furthermore, defendant’s motion for new trial failed to indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction and fails to comply with Rule 27.20(a), V.A.M.R. State v. Cheek, 413 S.W.2d 231 (Mo.1967).

The judgment is affirmed.

All concur.

      . The only evidence of the value of the stolen television set was $100 by the owner and $60 by a television dealer. .. [A]n instruction on stealing less than $50 need not be given where the only evidence of value is that the stolen property is worth over $50.” State v. Davis, 544 S.W.2d 600 (Mo.App.1976).


author: PONES, Justice. FONES, Justice.

text:
    CITY OF MASON, Tennessee, Petitioner, v. Albert Gene BANKS, Respondent.
    Supreme Court of Tennessee.
    March 12, 1979.
    Rehearing Denied June 4, 1979.

      James S. Wilder, III, Wilder, Wilder & Johnson, Somerville, for petitioner.
    Marshall Gerber, Memphis, for respondent.
   OPINION

PONES, Justice.

In a previous opinion, Banks v. City of Mason, 541 S.W.2d 143 (Tenn.1976), we held that T.C.A. § 6-640, which requires a municipal corporation to indemnify any employee of a police department against whom judgment is recovered for conduct, other than “wilful wrongdoing,” committed within the scope of his employment, was available to a judgment creditor of the employee by direct suit. Reversing the dismissal of the cause by the trial court, we remanded for a trial on the merits, allowing defendant, City of Mason, an opportunity to litigate its nonliability on the basis of the statutory defense of “willful wrongdoing” by its employee.

The case was heard by the trial judge, sitting without a jury, and the court ruled that respondent had not carried his burden of proof to show that the deputy, against whom respondent had obtained an unsatisfied judgment in federal court, was not engaged in willful wrongdoing when he inflicted injury on respondent. The intermediate court reversed, holding that the City of Mason had the burden of proof to show that its employee’s acts were willful but that the proof preponderated in favor of a finding of negligence. We granted certio-rari to address the areas of disagreement between the two courts.

On April 2, 1973, respondent obtained a $40,000 judgment against Arnell Freeman, a part-time deputy on the Mason police force, in an action brought in federal district court in Memphis arising under 42 U.S.C. § 1983. Although the jurisdictional prerequisites for a § 1983 action apparently were met, the underlying nature of Freeman’s liability to respondent, the focus of the inquiry here, as determined in that action has not been included in the record presented to this Court.

The entire evidence upon which respondent seeks to establish that Arnell Freeman engaged in conduct within the course of his employment which entitles respondent to indemnification is the trial transcript of the proceedings in the § 1983 action. Thus, by stipulation, the parties chose to forego a trial of the indemnification issues and incorporated the proceedings that resulted in a judgment under the federal civil rights laws.

Undisputed testimony attested that respondent had been visiting his family in Mason, had been drinking beer at local bars on the evening of November 26, 1970, and became embroiled in a scuffle in front of Boyland’s Cafe. Though steadfastly denied by respondent, there was some testimony that respondent’s actions inside the cafe, “cutting-up” and “pouring beer on people”, precipitated the incident. Officer Arnell Freeman almost immediately arrived at the scene and, as he testified, placed respondent, Jerry Bond and Lawrence Hays under arrest and ordered the participants in the disturbance into his car. By this time a crowd had gathered and, at some point, Freeman summoned his partner, officer T. J. Henning.

The primary factual issue material to respondent’s entitlement to relief under T.C.A. § 6-640 is whether Freeman engaged in willful wrongdoing when he arrested respondent, or whether he was justified, although negligent, in using force that ultimately blinded respondent in his left eye. According to Freeman’s testimony, Hays and Bond peacefully went to the car, but respondent, “Fought me all the way over there to the car . It was a

scuffle and tussle all the way from the time I got there and until the time I got him in the car.” Though Freeman finally placed respondent in his car, according to Freeman’s testimony, respondent repeatedly attempted to escape, threatening, “You are going to make me kick your ass,” and trying to get at the other arrestees. Freeman hit respondent in the head with a blackjack (“slapstick”), the only weapon he carried other than a can of mace. According to Freeman’s testimony, at the time he used his blackjack,

“Well, he [respondent] was coming to me, well, actually, what I mean by coming to me, was just scuffling and I had hold of him with one hand and I was trying to tell him to get back into the car. He said: ‘I’m not going nowhere. You are going to make me kick you so and so.’ So I shoved him back and he turned back like this and I just hit him (indicating). He thrust his hand back.”

Respondent’s testimony, and that of his two uncles who witnessed the incident, advanced a radically different version of the arrest. Respondent contended that Freeman “came up and . . . yanked me by the back of my collar and he picked me up and he hit me in the back” and that at no point had he resisted arrest. Respondent testified the blackjack blow was unprovoked.

A neutral bystander, David Cartwright, provided testimony, however, that tended to substantiate Freeman’s version of the arrest. Cartwright stated respondent had been resisting arrest, and in describing the circumstances under which the blow was struck, said,

“Now, he was jumping back and up and he started having words and started having words with Dip [Freeman], and he did that, Dip hit him then.
And he was crawling out of the car when this blow, he was out of the car now, he was standing, he, he had his arm over the door.”

Lawrence Hays, one of those also arrested, testified that respondent had been resisting arrest, but Hays had not witnessed the blow struck with the blackjack. He did testify, nevertheless, that Freeman did not use excessive force in placing respondent into his car, thus lending credibility to Freeman’s version of the arrest.

Based upon this evidence, the trial court ruled respondent had not carried his burden of proof to establish the conduct of Freeman was not willful wrongdoing. On appeal to the intermediate court, it was held that defendant City had the burden of proof on the issue, yet the evidence supported a judgment for respondent. The Court reasoned that defendant had the affirmative on the issue, and hence the risk of nonpersuasion, because the § 1983 judgment rendered the “issues of negligence and the burden of proving negligence . moot.”

We find the Court of Appeals erred in holding defendant had the affirmative of the issue. In City of Memphis v. Roberts, 528 S.W.2d 201 (Tenn.1975), this Court, inter alia, held:

“[T]he intent of § 6-640 T.C.A. [was] that the governmental entity indemnify the employees enumerated therein by paying [and defending] any judgment for compensatory damages awarded against them for any negligence committed in the performance of their official duties.” (Emphasis supplied) 528 S.W.2d at 205-06.

Albeit the statute does not mention the word “negligence,” it is clear from our construction of the statute in Roberts that T.C.A. § 6 — 640 contemplated indemnification for a policeman’s or fireman’s breach of a duty owed to an indemnitee arising out of his employment, except for conduct involving willful wrongdoing. The burden of proof, in the sense of the risk of nonpersuasion, should rest on the party who seeks to establish his entitlement to the benefits of the legislative enactment. Cf. Pack v. Royal-Globe Ins. Cos., 224 Tenn. 452, 457 S.W.2d 19, 25 (1970); Chisholm v. Billings, 220 Ga. 870, 142 S.E.2d 781 (1965); see 71 C.J.S. Pleading § 86 at 205 (1951).

One of the statutory requirements for recovery is the absence of willful wrongdoing. If willful wrongdoing is made an issue by the pleadings, its nonexistence must be established or plaintiff cannot recover. The confusion arises because, generally, the plaintiff must prove the affirmative of an issue, and here, the statute requires the negative to support the cause of action.

In 1 Gibson’s Suits in Chancery § 451 at 512 (5th ed. 1955) the author states:

“This burden rests on that party against whom, on the state of the pleadings, the issue would be decided if no proof in regard to it was introduced."

The burden of proving an affirmative of an issue “may sometime carry with it a responsibility of proving the negative of a fact or proposition, like the burden of the plaintiff in negligence cases in some states to prove freedom from contributory negligence.” 1 Jones, Evidence §§ 5.5 at 533 and 5.8 (6th ed. Gard 1972); see Maury Nat’l Bank v. McAdams, 106 Tenn. 404, 408, 61 S.W. 773, 774 (1901). We hold, therefore, respondent had the burden to prove that the employee had not engaged in “willful wrongdoing.” Accord, Shaw v. Industrial Safety Supply Co., 23 Conn.Sup. 149, 178 A.2d 284 (1962); see Annot. 71 A.L.R.3d 90 § 14 (1976).

The Court of Appeals held that the judgment in federal court, which it characterized as a “judgment for injuries resulting from a tort committed upon the plaintiff,” rendered “[t]he issues of negligence and the burden of proving negligence . moot.” We find that such a conclusion must be based on a misapplication of the doctrine of collateral estoppel. At the outset, as will be more fully developed infra, respondent’s former adjudication was not a tort judgment, but rather a judgment based on the federal civil rights laws. Respondent has included neither the actual judgment nor the pleadings in that cause in the record, but he relies entirely on the trial transcript. It has not been shown that the issue decided in the § 1983 action was identical to the one presented in the case at bar, i. e., whether Freeman’s conduct was “willful wrongdoing.” It is elementary that es-toppel by judgment only applies to those issues actually litigated. E. g., Shelley v. Gipson, 218 Tenn. 1, 400 S.W.2d 709 (1966); A. L. Kornman Co. v. Metropolitan Government of Nashville and Davidson Co., 216 Tenn. 205, 391 S.W.2d 633 (1965); accord, Duverney v. State, 96 Misc.2d 898, 410 N.Y.S.2d 237 (N.Y.Ct.Cl.1978) (§ 1983 judgment in federal court not binding in state court action against State arising out of conduct of police officers in arresting plaintiff). It has not been shown that the issue of whether Freeman’s conduct was willful wrongdoing was actually, or necessarily, adjudicated in the § 1983 suit.

Since we hold respondent had the burden of proof, as properly determined by the trial court, it is necessary to determine whether, under the facts adduced in the federal trial transcript, respondent met his burden of proof to establish that Freeman’s conduct was not “willful wrongdoing.” Under T.C.A. § 27-303, the cause comes before this Court for review de novo, with a presumption of correctness of the judgment of the trial court, law or equity, when the Court of Appeals does not concur in that judgment. See City of Columbia v. C. F. W. Constr. Co., 557 S.W.2d 734 (Tenn.1977). It is incumbent upon the respondent to show that the evidence preponderates otherwise.

The trial court ruled that the evidence made out a case of excessive use of force by Freeman in effecting the arrest of respondent. The court’s order recited that “any injuries inflicted upon the plaintiff were done through willful or intentional acts on the part of Arnell Freeman and, therefore, that the cause of action against the City of Mason should be dismissed.” In contrast, the intermediate court concluded as to this issue:

“The total evidence establishes to the satisfaction of this Court that the policeman was attempting to place a resisting person, lawfully arrested for fighting on the public streets of the city, in the officer’s automobile. The force used may have been excessive under the circumstances. The blow to the head may have been a negligent act on the . part of the officer, the use of that force in that degree may have been bad judgment, but the evidence does not establish willful wrongdoing on the part of the officer.”

We think that the intermediate court’s version of the incident, also urged by respondent, does not find support in the law or under the facts of the case. T.C.A. § 40-808 provides, “If, after notice of the intention to arrest the defendant, he either flee[s] or forcibly resists, the officer may use all the necessary means to effect the arrest.” The basic principle, as codified in the statute, is that an officer may only use the force reasonably necessary to accomplish the arrest, with due regard to other attendant circumstances, such as his own safety or that of others present. See An-not.: Peace Officer’s Liability For Death Or Personal Injuries Caused By Intentional Force In Arresting Misdemeanant, 83 A.L.R.3d 238 (1978). It is familiar law that a policeman has less privilege to use force in apprehending an alleged misdemeanant than an alleged felon. We think it is well settled in Tennessee, as expressed by this Court in Human v. Goodman, 159 Tenn. 241, 18 S.W.2d 381 (1929), that:

“Except in self-defense, an officer cannot resort to the extremity of killing, or shedding blood, in arresting or in preventing the escape of one charged with an offense less than felony, even though the offender cannot be taken otherwise.” 159 Tenn. at 243-44, 18 S.W.2d at 381.

Accord, Day v. Walton, 199 Tenn. 10, 281 S.W.2d 685 (1955); Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938); Reneau v. State, 70 Tenn. 720 (1879); State v. Dunn, 39 Tenn.App. 190, 282 S.W.2d 203 (1955); Garner v. State, 37 Tenn.App. 510, 266 S.W.2d 358 (1953); see Model Penal Code § 3.07, Comments (Tent.Draft No. 8, 1958); Annot. 42 A.L.R. 1200 (1926); Annot. 3 A.L.R. 1170 (1919). There is no consensus in the case law as to whether the use of a blackjack, or similar club-like weapon, amounts to excessive force as a matter of law when used to effect a misdemeanor arrest. Most jurisdictions construe the issue of whether a policeman’s use of force is excessive to be a jury question. Although he attacks the trial judge’s ruling, respondent has not presented any evidence to suggest that Freeman’s conduct was in response to like force on the part of his arres-tee; actually, Freeman’s uncontradicted testimony was that he was “trying to keep [respondent] under control.” Respondent has not presented any evidence to suggest that Freeman was reasonably in danger of his life or great bodily harm when he used such force by means of a weapon as to maim his arrestee for the rest of his life. In fact, respondent and his two uncles’ testimony, constituting plaintiff’s entire proof, presents the proposition that Freeman’s conduct in clubbing respondent was an unjustified, unprovoked and brutal act. We think that when an arrestee is resisting arrest for a mere misdemeanor, a policeman is not privileged to use a weapon in such a way as to create a high degree of probability of serious injury to the arrestee, when other avenues are available to effect the arrest while maintaining his own personal safety and that of others present. We recognize the general rule that a presumption of good faith attaches to an officer’s use of force in effecting an arrest and that he is not liable for damages unless the means he uses are “clearly excessive.” See Restatement (Second) of Torts § 132, Comment a (1965). Under the facts of this case, however, we find that the respondent has not shown the evidence preponderates against the decision of the trial court that Freeman used excessive force in effecting the arrest.

A finding that Freeman did not have reasonable grounds to effect the arrest by the force employed does not mean that Freeman was negligent, as the intermediate court held. It is clear from the record that Freeman intended to hit respondent in the head with his blackjack; it was his voluntary and conscious act. He was privileged to use only that force necessary to effect the arrest and was liable for the amount of the force that was excessive. See Restatement (Second) of Torts §§ 71, 133. Hence Freeman was liable for the damages caused by his excessive and unprivileged use of force under the intentional tort of battery. It is irrelevant that Freeman did not “intend” to maim respondent, for his use of that force, in an exercise of a conscious and volitional act, was an unprivileged intentional tort. See Restatement (Second) of Torts § 8A.

No authority has been cited before this Court that, under the circumstances of this case, Freeman’s acts could be considered negligent. In Baranowski v. City of Milwaukee, 70 Wis.2d 684, 235 N.W.2d 279, 282 (1975), the court considered a similar complaint but concluded, “In this case the allegations couched in negligence go only to whether the police officers had a privilege and whether they exceeded the reasonable use of the privilege.”

This conclusion is supported not only from a reading of the record, but by the fact, as conceded by all parties, that respondent has recovered judgment under a § 1983 cause of action. Respondent claims that the proof shows a “negligent act” and that the judgment in federal court, based upon the proof before us, rested upon a finding of negligence. Our analysis of the relevant case law persuades us that respondent’s contention is wholly incongruous with a § 1983 judgment based on the very proof before the Court.

The essential requirements of a § 1983 action are that the conduct complained of was engaged in under color of state law and that such conduct deprived plaintiff of rights, privileges or immunities secured by the federal constitution and laws. E. g., Jones v. Hopper, 410 F.2d 1323, 1326 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1970). In Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492, 505 (1961), the United States Supreme Court held that a plaintiff bringing a claim under § 1983 need not establish defendant’s specific intent to deprive the plaintiff of a constitutional right and indicated that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” The Supreme Court has referred to the § 1983 action as a “species of tort liability.” Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128, 136 (1976). More recently, however, the Court has said, speaking through Mr. Justice Marshall, “The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.” Robertson v. Wegmann, 436 U.S. 584, 590, 98 S.Ct. 1991, 1995, 56 L.Ed.2d 554 (1978). It is clear, therefore, that whatever the nature of the conduct complained of, it must amount to a deprivation of a federal right under the color of state law. See Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), cert. denied, Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

The Supreme Court of the United States has not addressed specifically whether an isolated act of negligence simpliciter can support a finding that the negligent act caused a § 1983 deprivation, though the Circuit Courts of Appeals are in disagreement. Cf., e. g., Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976), rev’d on other grounds, sub nom., Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) with Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978). But in Puckett v. Cox, 456 F.2d 233, 235 (6th Cir. 1972), the Sixth Circuit Court of Appeals, following the majority rule, held that an isolated incident of ordinary negligence would not amount to a deprivation of federal rights cognizable under § 1983. In reaching a similar result, the federal panel in Bonner v. Coughlin, supra, found support under Paul v. Davis, 424 U.S. 693, 699, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405, 412 (1976), in which the Supreme Court refused to allow § 1983 to “make actionable many wrongs inflicted by governmental employees which had heretofore been thought to give rise only to state law tort claims.”

Assuming, arguendo, that Freeman’s actions were negligent, as argued now by respondent, we fail to see how such conduct would support a § 1983 judgment that respondent was denied a federally protected right when the Sixth Circuit, whose construction of the applicable law would be binding on the federal court sitting in Memphis, has held that isolated incidents of negligence are not cognizable under § 1983. On the other hand, numerous decisions have allowed recovery under § 1983 based on a policeman’s use of excessive force in effecting an arrest when the policeman’s conduct was conscious, volitional and purposeful. See, e. g., Bellows v. Dainack, 555 F.2d 1105 (2d Cir. 1977); McArthur v. Pennington, 253 F.Supp. 420 (E.D.Tenn.1963); Arroyo v. Walsh, 317 F.Supp. 869, 870 (D.Conn.1970). But see Smith v. Jones, 379 F.Supp. 201, 205 (M.D.Tenn.1973), aff’d, 497 F.2d 924 (6th Cir. 1974), holding that, under Tennessee law, defendant policeman had reasonable grounds to believe the degree of force used was necessary for the apprehension of the deceased, a felon.

It is obvious that these decisions were based on the willful, but unprivileged, acts of a policeman in effecting an arrest in a manner that amounted to a misuse of his power under the color of law. See Robertson v. Wegmann, supra. Consequently, it is clear from the law and the evidence in the record, that Freeman’s conduct was an intentional and willful act, as found by the trial court. It follows that such a volitional, unprivileged and abusive act falls within the definition of “willful wrongdoing” under T.C.A. § 6-640. An evaluation of the proof and an analysis of the applicable law lead inevitably to this result.

Respondent relies on City of Kingsport v. Quillen, 512 S.W.2d 569 (Tenn.1974). In that case we said that “willfulness” requires the inclusion of the elements of intentional, deliberate and purposeful conduct, to the exclusion of accident, negligence and even errors of judgment. Id. at 573. We are satisfied that Freeman’s conduct was willful, tested by that definition. The last paragraph of the Quillen opinion, observing that exceptions to the legislative purpose must be strictly construed, was dicta. As a general proposition, the principle stated is correct, but we do not think that it can be used to alter or change the meaning of “willful wrongdoing.”

The judgment of the Court of Appeals is reversed and the suit is dismissed. Costs are adjudged against respondent, Banks.

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

OPINION ON PETITION TO REHEAR

FONES, Justice.

The Petition to Rehear relies upon factual contentions and legal authorities heretofore considered by the Court, and therefore does not comply with the requirements of Rule 32. See Louisville & Nashville R. R. Co. v. United States F. G., 125 Tenn. 658, 148 S.W. 671 (1911). Nevertheless, this is an unusual and difficult case, and we have thoroughly considered the arguments advanced in the petition, but have reached the same conclusion heretofore announced.

The Petition to Rehear is denied.

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

      . In Procunier v. Navarette, supra, rev’g, Navarette v. Enomoto supra, the Supreme Court held that state prison officials were entitled to a qualified immunity from damages under § 1983 and could not be held liable under allegations of negligent interference with a state prisoner’s outgoing mail in violation of his constitutional rights under the first and fourteenth amendments. Writing in dissent, Chief Justice Burger would have held that “one who does not intend to cause and does not exhibit deliberate indifference to the risk of causing the harm that gives rise to a constitutional claim is not liable for damages under § 1983” and observed, “Neither the language nor the legislative history of § 1983 indicates that Congress intended to provide remedies for negligent acts.” 434 U.S. at 568, 98 S.Ct. at 863.


author: ALLISON B. HUMPHREYS, Special Justice.

text:
    STATE of Tennessee ex rel. Barbara MORETZ et al., Appellants, v. CITY OF JOHNSON CITY, Tennessee, et al., Appellees.
    Supreme Court of Tennessee.
    March 26, 1979.

      Kent Herrin, Johnson City, for appellants.
    James H. Epps, III, Powell & Epps, Johnson City, for appellees.
   OPINION

ALLISON B. HUMPHREYS, Special Justice.

Petitioners brought suit under T.C.A. §§ 6-309, 310, in the nature of a quo war-ranto proceeding, T.C.Á. § 23-2801, et seq., to test the validity of a Johnson City ordinance annexing a contiguous area of land on which petitioners resided. The primary contention, which we shall notice first, is that annexation is not necessary for the health, safety, and welfare of the residents and property owners of the territory and the municipality as a whole, and so is contrary to the authorizing code sections and is void.

The city interposed defenses, challenging the right of petitioners to sue and the sufficiency of the petition to state a cause of action. These defenses were coupled with an answer denying the allegations of the petition and affirming the legality of the ordinance.

At the trial, a jury was assembled as prayed and one of the issues submitted to it was whether or not the annexation ordinance was reasonable for the overall well-being of the communities involved taking into consideration the health, safety, and welfare of the citizens and property owners of the territory proposed to be annexed and the citizens and property owners of the municipality itself.

At the conclusion of the introduction of proof, the city moved to withdraw the issues from the jury and that the court direct a verdict on the ground that the reasonableness of the ordinance was fairly debatable. City’s counsel cited State ex rel. Wood v. City of Memphis, 510 S.W.2d 889 (Tenn. 1974), and State ex rel. Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968).

This motion was sustained, the issues were withdrawn from the jury and the trial judge, applying the “fairly debatable” rule, adjudged the ordinance to be valid.

He predicated his holding on State ex rel. Hicks v. City of Chattanooga, 513 S.W.2d 780 (Tenn.1974); State ex rel. Wood v. City of Memphis, supra; State ex rel. Balsinger v. Town of Madisonville, supra; and Morton v. Johnson City, 206 Tenn. 411, 333 S.W.2d 924 (1960). All of these are cases applying the fairly debatable rule.

The case was appealed, and is here on assignments of error challenging this ruling on authority of City of Kingsport v. State ex rel. Crown Enterprises, 562 S.W.2d 808 (Tenn.1978); and Pirtle v. City of Jackson, 560 S.W.2d 400 (Tenn.1977).

Although it- is argued to the contrary by the city, there cannot be any doubt but that the trial judge decided the case on the fairly debatable rule. Nor can there be any doubt that this rule was abrogated by a 1974 Amendment of T.C.A. § 6-310, as recognized in both Pirtle and City of Kings-port.

In City of Kingsport this Court said:

“The municipality shall have the burden of proving that an annexation ordinance is reasonable for the overall well-being of the communities involved, (emphasis supplied) This legislative enactment destroyed all presumptions of validity and demolished the ‘fairly debatable’ rule. As we recently held in Pirtle v. City of Jackson, (Opinion filed December 19th, 1977) a Tennessee municipality ‘has the burden of proving the reasonableness of its annexation ordinance’.” 562 S.W.2d at 812.

Justifying the interment of the rule this Court said: “the demise of the ‘fairly debatable’ rule is not fairly debatable”. Id.

In fairness to the trial judge and counsel for the parties, it should be noted that the present case was tried prior to this Court’s opinion in Pirtle and City of Kings-port but subsequent to the enactment of the 1974 Amendment. So Pirtle and City of Kingsport control the disposition of the law question involved in this appeal.

But this doesn’t dispose of the case. The city argues that the judgment of dismissal should be affirmed on two grounds: first, that as shown by one of the issues made up for submission to the jury and by statements made by the trial judge from time to time, the effect of the Pirtle and City of Kingsport holdings was applied in the trial of the case; second, that in any event the result in the case is in accord with the record and, without any question, the annexation is reasonable and meets the standard enunciated by the Court in City of Kingsport so the judgment should be affirmed. In other words, it is contended that the evidence is not susceptible of but one interpretation, and that is that the ordinance is reasonable.

We cannot follow the first argument. While the record shows that the trial judge made up an issue submitting the reasonableness of the ordinance as a jury question, and from time to time made statements at odds with his ultimate application of the fairly debatable rule, there cannot be the slightest doubt but that he decided the case on authority of Johnson City, supra, and its progeny, and applied with fullest force and effect the fairly debatable rule abolished by the 1974 Amendment.

There is more substance in the city’s second argument, that we should decide the case in its favor on the record. As city’s counsel points out, there are many cases [one of the latest being Cherokee Ins. Co. v. United States Fire Ins. Co., 559 S.W.2d 337 (Tenn.1977)], which hold that a correct result will not be reversed because the trial judge gave an insufficient or wrong reason therefor.

But, these cases are not in point. The point for which these cases stand is simply that when a case has been fully and completely tried, according to applicable jurisdictional and procedural rules, and the right result has been reached, it will not be reversed and remanded because the trial judge gave the wrong reason in reaching the right result. This is not the case we have here. Here, we have a case in which petitioners demanded a jury in accordance with T.C.A. § 21-1011 and Rule 38 T.R.C.P. to try the issue of “reasonableness” of an annexation ordinance, under a statute which puts the burden of proof with respect thereto on the city, only to have the issue withdrawn from the jury and adjudged by the trial judge under an inapplicable rule of law.

When the fairly debatable rule applied, the question whether there was evidence for and against an ordinance was one to be answered by the trial judge. The question whether there is any evidence on an issue is always a law question. So, when a trial judge decided there was evidence for and against the reasonableness of an ordinance, he had to withdraw the case from the jury and uphold the ordinance. This is no longer the situation. Under the amended statute,

. The municipality shall have the burden of proving that an annexation ordinance is reasonable for the overall well-being of the communities involved . Suit or suits, shall be tried on an issue to be made up there, and the question shall be whether the proposed annexation be or be not unreasonable in consideration of the health, safety and welfare of the citizens and property owners of the territory sought to be annexed and the citizens and owners of the municipality. T.C.A. 6-310.

The language of the statute, “issues to be made up”, is so characteristic of that used in discussing preparation for a trial by jury in a chancery proceeding that it had to be the legislative intention that this issue of reasonableness might be tried by a jury, unless this is prevented by a disqualifying condition. Especially is this the case, since the question of “reasonableness” is a mixed question of law and fact and for the jury, where one is demanded. In 75 Am.Jur.2d Trial § 323 it is said, “The ultimate answer to mixed questions of law and fact must come from the jury . . ” This statement is supported by citation of Tucker v. Spalding, 80 U.S. 453, 20 L.Ed. 515 (1872). Tennessee cases holding that mixed questions of law and fact are for the jury are: McElya v. Hill, 105 Tenn. 319, 59 S.W. 1025 (1900); Bodley v. Fidelity & Cas. Co., 1 Tenn.App. 720 (1926).

This being the case, appellants are entitled to have the issue of reasonableness submitted to a jury, unless on remand the proof on the issue brings into play some other rule applying to chancery jury trials which might prevent this. (See T.C.A. § 21-1011.)

T.C.A. § 27-302 controls our disposition of this case on appeal. It provides that issues of fact in chancery made up on demand of either party and tried by a jury according to the forms of law, are not embraced in T.C.A. 27-301, which authorizes this court to re-examine the whole matter of law and fact appearing in the record in a case tried according to the forms of chancery, but shall be reviewed on appeal as law cases are reviewed. So, we can only affirm the judgment, dismissing the petition, if we find as a matter of law that there is no material evidence to support a finding in appellants’ favor.

But, we find, as did the trial judge before us, that there is such material evidence. The trial judge, in taking the case from the jury, said: “I think there can be no real honest disagreement that the reasonableness or unreasonableness of the particular annexation is a fairly debateable question. We have heard some eighteen witnesses yesterday and today, about half for the city, in effect saying that the ordinance is reasonable; some eight or nine witnesses for the Plaintiffs or Petitioners to state, in effect at least, that the ordinance is unreasonable.” At another point the trial judge said, “some think it is reasonable (referring to ordinance) and some think it is unreasonable and there has been good testimony concerning both sides. That being true, the Court is of the opinion that this is a fairly debateable question.”

It is obvious from this, that but for his misunderstanding of the applicable law, the trial judge would have submitted the issue of reasonableness to the jury. And, we can do no less, because there is material evidence supporting appellants’ case. Moreover, the question of any material evidence should be passed on first by the trial judge, and reach us on assignment of error.

The only other assignment we need notice contends the ordinance is void because two of the city commissioners who voted for its passage, actively sought its approval in the statutorily prescribed public hearing held prior to the vote on the ordinance.

Since commissioners exercise only legislative powers, prior or presently held attitudes or opinions in regard to legislation they are to act on are of no consequence in adjudging the legality of their actions. Most legislators seek office on promises of future conduct or action with respect to political issues, and when there, vociferously advocate their enactment. This is their right. It is a part of the political system. While fewer promises and more performance would unquestionably be beneficial, any rule limiting a legislator’s freedom to promise and advocate would violate first amendment rights.

The case is remanded for trial on the issue prescribed by the amended statute. On remand, the present record may be used and any other relevant, competent evidence may be introduced by either party. The cost of this appeal is adjudged against the city.

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

      . Some illustrations of the use of the phrase “issues to be made up” can be found in T.C.A. § 23-2815, a provision in the quo warranto remedy employed in this case where it is said, in recognizing that issues of fact in such proceedings may be tried by a jury, that such issues “shall be made up . . ” T.C.A. § 27-302, dealing with chancery jury cases on appeal, says in part “issues of fact in chancery, made up on demand ...” Gibson’s Suits in Chancery, Section 577 says “[t]he issues of fact, to be determined by the jury, are made up Other illustrations could be given.


author:
HENRY, Chief Justice.
      PONES, Justice, BROCK, Justice, HENRY, Chief Judge.

text:
    STATE of Tennessee, ex rel. Robert CONGER et al. v. MADISON COUNTY et al.
    Supreme Court of Tennessee.
    March 26, 1979.
    Rehearing Denied May 29, 1979.

      Russell Rice, Rice & Rice, Sidney W. Spragins, Jackson, for petitioners.
    Hewitt P. Tomlin, Jr., George R. Fusner, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for respondent Madison County.

      Jack Manhein, Jackson, for respondent Transamerica Ins. Co.
    Thomas E. Fox, Franklin, for Williamson County, amicus curiae.
    Edward G. Kelly, Jr., Cobb, Edwards, Hamlet, Nichol & Woodall, Memphis, for Bd. of Ed., Memphis City Schools, amicus curiae.
    Charles E. Griffith, Robert C. Evans, Griffith & Stokes, Nashville, for Tennessee Municipal League, et al., amicus curiae.
    Charles A. Maner, Jr., Dale C. Workman, Knoxville, for Knox County and Judge C. Howard Bozeman, amicus curiae.
   OPINION

HENRY, Chief Justice.

The principal issue before the Court is whether Federal Revenue Sharing Funds allocated to a county and, by its Quarterly Court, transferred to the County School Fund, must be apportioned with a special school district within the county under § 49-605, T.C.A. The Trial Judge responded in the affirmative; the Court of Appeals in the negative; we agree with the Court of Appeals.

A preliminary issue, but one of pivotal importance, is whether such funds may be used by a county for school purposes.

We hold that they may.

I.

History of the Lawsuit

This action was instituted on August 24, 1977 in the Circuit Court at Jackson by the three Commissioners of the City of Jackson, who, by virtue of their office constitute the School Board of the City of Jackson, which maintains its own school system, operating wholly within the city.

Named as parties defendant were Madison County, the County Judge, the County Trustee, and the surety on the Trustee’s official bond.

The complaint alleges, and the trial judge found, that during the early part of 1977 the Quarterly Court of Madison County appropriated to the Madison County General Purpose School Fund, for maintenance and operating purposes, the sum of $201,476.00 from Federal Revenue Sharing Funds, and that this sum was not apportioned with the City of Jackson.

It is further averred and established by the proof that the Quarterly Court, in its budget for the fiscal year ending in 1978, appropriated from Federal Revenue Sharing Funds to the Madison County School System the sum of $565,822.51, accompanied by a stated intention that those funds would not be apportioned in accordance with the City’s view of the mandate of § 49-605, T.C.A. These funds also were appropriated for maintenance and operation.

The trial court held that apportionment was required under § 49-605, T.C.A., and should have been accomplished by using the average daily attendance (ADA) computations. The ADA ratio between the two systems indicated that the City of Jackson’s share was 48.561537% and that of Madison County, 51.438427%.

From these figures, the Trial Judge found that it would have required a total appropriation of $391,683.82 to validate the appropriation to the Madison County System. This would have resulted in an apportionment of $190,207.82 to the City of Jackson. Therefore, he awarded judgment against Madison County in this amount.

He further found that the County Trustee had knowingly failed to apportion the $565,822.51 appropriated for fiscal year 1978 and that the “Defendants in this case openly state that they do not intend to make such apportionment as required by [section 49-605] . . . .” In this connection he held that “the determination not to apportion in both instances was made by the Madison County Quarterly Court and such decision was communicated by the County Judge to the County Trustee.”

Responding to the prayer for a declaratory judgment, the Trial Judge held:

that all funds, including funds derived from Federal Revenue Sharing Grants, lawfully appropriated by the Madison County Quarterly Court for the current operation and maintenance of county schools must be placed in one separate school fund and apportioned between [the two systems] in accordance with the provisions of Section 49-605 Tennessee Code Annotated.

He “strictly and permanently enjoined” the Madison County Quarterly Court, the County Judge and the County Trustee to make such apportionments “now and hereafter.”

To insure the collection of the judgment against Madison County, he ordered the county to levy a tax on all real estate in the county or to provide for payment by 31 December 1978.

The Surety on the Trustee’s official bond was dismissed.

To enforce his decree writs of mandamus, injunction, and execution were awarded.

To summarize, the Trial Judge held that § 49-605, T.C.A. required that Federal Revenue Sharing Funds appropriated for current operation and maintenance of county schools must be apportioned, and ordered the Quarterly County Court, the County Judge, and the County Trustee to make the apportionment now and hereafter. He gave judgment against the county and awarded appropriate extraordinary process.

The record fully supports all factual findings and we concur in them.

The Court of Appeals, in a brief opinion, held that § 49-605, T.C.A. “has no application to funds received by Madison County under the State and Local Fiscal Assistance Act of 1972, as amended.”

We examine these divergent legal conclusions.

II.

Federal Revenue Sharing Act

We think an orderly consideration of this action must start with the Federal Revenue Sharing Act.

This act was designed to return to state and local communities revenue collected by the federal government for use “according to their own perceived demands and objectives and not those of the federal government.” Carolina Action v. Simon, 389 F.Supp. 1244, 1248 (M.D.N.C.1975).

It should be noted at the outset that, in its original form, the act restricted the use of these federal funds to “priority expenditures.” Education was not an enumerated permitted use. See 31 U.S.C. § 1222. This section was repealed by Pub.L. 94 — 488, § 3(a), 90 Stat. 2341, October 3, 1976.

The statutory scheme of distribution is somewhat cumbersome and tends to be confusing. It is not required that we deal with it in detail. The allocation among states is determined by 31 U.S.C. § 1225.

The amount allocated to each state is divided one-third to the state government and two-thirds to local governments, 31 U.S.C. § 1226, on the basis of a formula derived from the Act. The two-thirds allocated to local governments is distributed on the basis of a formula reflected in 31 U.S.C. § 1227. Generally speaking, the local government share is allocated to county areas on the basis of the ratio that the population of the county, multiplied by the general tax effort factor of that county area, multiplied by the relative income factor, bears to the sum of that figure for all county areas in the state. 31 U.S.C. § 1227(a).

The county area share is divided between the county and all municipalities of the county. The allocation to a county government is on the basis of the ratio the adjusted taxes of the county government bears to the adjusted taxes of the county government and all other units of local government located in the county area. 31 U.S.C. § 1227(b)(1).

The remaining funds are then allocated among the municipalities (in Tennessee) located in the county area. 31 U.S.C. § 1227(b)(2). As a result, the municipalities within a county area collectively receive their allocations in the same manner as do counties. The allocation among the municipalities is based upon a formula taking into consideration population, general tax effort, and relative income. 31 U.S.C. § 1227(b)(2).

Attached hereto as an Appendix is a flow chart designed to show generally the distribution of these funds. It is included solely to clarify this opinion, and should only be used for that purpose. The details of the various formulae and other factors not shown in this appendix are set forth in Chapter 24, Title 31, U.S.C.

As will be seen by this narration and by reference to the appendix, the City of Jackson has already received an allocation of Federal Sharing Funds, wholly separate and apart from those received by Madison County. The entitlement of all governmental units is determined by computer and the distributions are made directly to the local governments from the Federal Sharing Office in Washington, D. C. May the City of Jackson receive a portion of the funds allocated to the county?

Federal statutes alone do not provide the answer. In order to qualify for the federal funds, a county or municipality

. must establish ... to the satisfaction of the Secretary that— ******
(4) it will provide for the expenditure of amounts received under subchapter I of this chapter only in accordance with the laws and procedures applicable to the expenditure of its own revenues. 31 U.S.C. § 1243(a)(4)

Thus, the answer to the question presented in this action lies in the statutes of the State of Tennessee.

III.

Source, Use, and Nature of County Funds

Federal Revenue Sharing Funds are not earmarked for any specific purpose. Upon their receipt by a county, they become subject to appropriation and use by the Quarterly Court.

In attempting to clarify the nature and permissible use of these funds, our statutory law is not particularly helpful. For instance, § 5-801, T.C.A., undertakes to inventory all sources of county revenue. It reads:

County revenue is derived from taxes on polls, property, privileges, litigation, merchants, peddlers; from strays, fines and forfeitures, as below [See Section 5-802 through 5-805], and from money remaining unclaimed more than two (2) years in clerks’ offices.

It is obvious that this statute is hopelessly out of date and that Federal Revenue Sharing Funds, now a major source of county revenue, do not fit into any of the listed classifications.

There is, however, another statute, not cited by the principal parties, but relied upon by the Surety on the Trustee’s bond, which we consider to be highly significant. Section 5-924, T.C.A. reads as follows:

All funds from whatever source derived, including but not limited to taxes, county aid funds, federal funds, and fines, which are to be used in the operation and respective programs of the various departments, commissions, institutions, boards, offices, and agencies of county governments shall be appropriated to such use by the county legislative bodies. (Emphasis supplied)

It should be noted that this statute, as originally enacted in 1959 did not include federal funds. By Chapter 615 of the Public Acts of 1976 the original language was changed by adding the words “federal funds.” No other change was made. Section 49-605, however, was not amended.

It would seem clear that the Quarterly Court of Madison County had the authority, under this statute, to appropriate Federal Revenue Sharing Funds to use in the operation and maintenance of the school system. Indeed, independent of this statutory authorization, it would seem that the Quarterly Court had the authority to place these revenues in any of the County’s funds, including the school fund.

There is, however, a line of cases that at least superficially tends to indicate a contrary result.

In State ex rel. Davidson County Board of Education v. Pollard, 124 Tenn. 127, 136 S.W. 427 (1910), the question presented to the Court was whether a county court had the authority to make an appropriation out of the general fund of a county for school purposes. Responding in the negative, the Court held that

county purposes are of two-kinds, general county purposes and special county purposes, and that moneys raised by taxation for special county purposes cannot be used for a general county purpose, and that money raised for general county purposes cannot be used for a special county purpose. 124 Tenn. at 130-31, 136 S.W. at 428.

The Court quoted with approval the following language from Kennedy v. Montgomery County, 98 Tenn. 165, 179, 38 S.W. 1075, 1079 (1897):

The taxpayers of every county have a right to know for what purpose they are being taxed, and also to know that taxes collected from them for any special purpose are applied to such purpose, and not to some other, at the discretion of county officials, and according to their ideas of public policy or expediency. The law does not provide for the mixing of special and ordinary funds, nor the supplementing of one by the other by county officials. (Emphasis in original) 124 Tenn. at 135, 136 S.W. at 429

The Pollard-Kennedy rationale was followed in Board of Commissioners of Union City v. Obion County, 188 Tenn. 666, 222 S.W.2d 7 (1949). In that case it appeared that the county had paid a bonus to teachers in the county schools, and had funded it by a transfer from the “General Fund” to the “School Fund.” Pointing out that the general fund “had been levied and collected for specific county purposes,” the Court held that “[t]he mere fact that the money was passed through the elementary school fund prior to its disbursement . did not change the nature of the money or make it legally a part of the elementary school fund.” Therefore, the Court held it “remained a part of the County’s ‘General Fund’ ” and could not be diverted. 188 Tenn. at 670, 222 S.W.2d at 8.

An equally strong case is State ex rel. Baird v. Wilson County, 212 Tenn. 619, 371 S.W.2d 434 (1963). In that case the County Quarterly Court had diverted money from the county general fund for elementary school purposes. Relying upon Obion County, supra and State, ex rel. Cope v. Davidson County, 198 Tenn. 24, 277 S.W.2d 396 (1955), (fund derived from special tax for teacher transportation was in reality a means for increasing salaries without making a devise with the City of Nashville) the Court said:

Both the Obion County case and the Davidson County case clearly state that funds derived from taxes levied for one purpose, when transferred by the Quarterly County Court to the school fund, do not become a part of the funds to which transferred. The unauthorized and ultra vires resolution of the County Court diverting funds from the legitimate purpose for which the tax to produce such funds had been levied does not change the nature of the fund or make it legally a part of the fund to which it is thus wrongfully transferred. 212 Tenn. at 626, 371 S.W.2d 438.

If we hold these cases to be applicable, it would logically follow that Federal Revenue Sharing Funds may not be used for the maintenance and operation of public schools in the county, and that such a use would be an unauthorized diversion. Pursuant to such a holding the county would have to transfer the funds to the County General Fund and there could be no apportionment.

Such a holding would frustrate the purpose of the act, which is to permit local governments to “spend these funds according to their own perceived demands and objectives.” Further, it would be contrary to § 5-924, T.C.A. which provides, inter alia, that “[a]ll . federal funds . which are to be used [for various county purposes] shall be appropriated to such use by the county legislative bodies.”

Finally, such a holding would contradict common sense and, in effect, make these funds unusable for any purpose. It must be borne in mind that these are not conventional county revenues raised by conventional tax levies. They are Federal Sharing Funds, and their use must lie in the sound judgment and discretion of the county government.

The cases noted above involve the unauthorized diversion of conventional tax revenues raised for specific and itemized purposes. Therefore our courts consistently and correctly have held that tax revenues raised for stated public purposes may not be diverted. Federal Revenue Sharing Funds, however, are not derived from county tax levies and collected for designated purposes.

We, therefore, hold that Federal Revenue Sharing Funds may be allocated for school purposes.

Nothing in our recent case of City of Harriman v. Roane County, 553 S.W.2d 904 (1977) alters this conclusion. In that case we were dealing with conventional county revenues, expenditure of which is governed by state statutory and decisional law. We held that the proceeds of the wholesale beer tax could not lawfully be appropriated to school purposes “without specific statutory authorization,” 553 S.W.2d at 907, and that although the second half of the retail sales tax proceeds could be so used, they must be apportioned in accordance with § 49-605, T.C.A.

Again, in the instant case we do not deal with conventional state or county revenues, but with funds that come to local governments with the restriction that they will be expended “in accordance with the laws and procedures applicable to the expenditure of its own revenues.” 31 U.S.C. § 1243(a)(4). There is no Tennessee law that precludes the use of these funds for any legitimate county purpose.

IV.

Apportionment

The remaining question is whether these funds must be apportioned with the City of Jackson. We respond in the negative.

Section 49-605, T.C.A. provides, in pertinent part as follows:

For each school system there shall be levied for current operation and maintenance not more than one school tax for all such grades as may be included in the local school program. Each system shall place in one separate school fund all school revenues for current school operation purposes received from the state, county, and other political subdivisions, if any. . . . All school funds for current operation and maintenance purposes collected by any county, [except for transportation tax levy funds] shall be apportioned by the county trustee among the county, city, and special school districts therein on the basis of the average daily attendance maintained by each, during the current school year. (Emphasis supplied)

By its very phraseology, this statute cannot be applicable to Federal Revenue Sharing Funds, the source of which is the Federal Government. Money received from the Federal Government obviously is not received from a state, county, or other political subdivision. The political facts of life are that the Federal Government is in no sense a “political subdivision.”

The apportionment provision for “[a]ll school funds for current operation and maintenance purposes collected by any county” simply refers to all funds collected or received from the state, county, or other political subdivision. It adds nothing to the scope and extent of the definition of the funds embraced within the statute.

Section 49-605, T.C.A. embraces all funds received from the state, raised by local taxation, or derived from appropriate bond issues. It is inapplicable to Federal Revenue Sharing Funds, which may or may not be used for school purposes.

We, therefore, hold that a county’s share of Federal Revenue Sharing Funds, allocated to the County School Fund, is not subject to the provisions of § 49-605, T.C.A. and, therefore need not be apportioned among the special school districts of a county.

This result not only is dictated by the language of the statute, but is commanded by considerations of equity and fundamental fairness. Under the formula heretofore discussed, the City of Jackson has already received its fair share of Federal Revenue Sharing Funds. This suit represents an effort to encroach upon the County’s share. If we were to hold in the City’s favor, the County would have to pay the City the sum of $190,207.82 as a result of having appropriated $201,476.00 to the School Fund, leaving a net gain of $11,268.18. This would be unconscionable.

There appears in this record a chart which we think validates the equitable conclusions we reach. This chart is based upon the ninth entitlement period covering the period from 1 October 1977 through 30 September 1978. It shows the result of the application of the various pertinent formu-lae.

[See following illustration.]

The pie has already been sliced; we are not willing to slice it again.

Section 49-605, T.C.A. came into existence long before Revenue Sharing came upon the scene. If the conclusions we reach are not in the public interest, the General Assembly should be requested to scrutinize § 49-605, T.C.A. in the light of the distribution of federal funds to the local governments of Tennessee.

Affirmed.

FONES, J., concurs with opinion.

COOPER and HARBISON, JJ., concur.

BROCK, J., dissents with opinion.

APPENDIX

DISTRIBUTION OF FUNDS

Notes on Distribution to Local Governments

1. First allocation is to county areas on basis of population multiplied by general tax effort multiplied by relative per capita income. This fixes the ratio each of the 95 county areas bears to all 95 such areas.

2. Second allocation is to county government and all municipalities in the county on the basis of adjusted taxes.

3. Third allocation is among the various municipalities on the basis of population x tax effort x relative per capita income.

PONES, Justice,

concurring in result.

The Chief Justice has written an excellent opinion, exploring every avenue that might lead the Court to the correct judicial resolution of this dispute between the City of Jackson and the County of Madison. But the intractable problem presented must, in the final analysis, be answered by an interpretation of T.C.A. § 49-605. The difficulty in finding the correct judicial solution of the problem in that section lies in the fact that there is no express language in the statute that dictates either result, and an attempt to ascertain legislative intent is, in my opinion, inappropriate because the section was enacted prior to the existence of federal revenue sharing.

My brother Brock has written an excellent, well reasoned opinion, but I do not share his conviction that City of Harriman v. Roane Co., supra, and Board of Education v. Shelby Co., infra, control the disposition of this case. Like the dissent, I do not concur in predicating the decision, in whole or in part, on equitable considerations. This record is inadequate to enable me to pass judgment on the equities. In my opinion, the equities of slicing the federal revenue sharing pie are appropriate for the legislative halls only.

I concur in the result reached by the majority only because T.C.A. § 49-605 can be read to say that the expression “all school funds” is modified by the phrase “received from the state, county and other political subdivisions”, and therefore carries no mandate that federal revenue sharing funds be apportioned.

COOPER, J., concurs.

BROCK, Justice,

dissenting.

I respectfully dissent. In my view, the majority has given an erroneous construction to T.C.A., § 49-605, subsection A, which provides:

“All school funds for current operation and maintenance purposes collected by any county, except the funds raised by any local special pupil transportation tax levy as authorized in this subsection, shall be apportioned by the county trustee among the county, city, and special school districts therein on the basis of the average daily attendance maintained by each, during the current school year.”

The language employed by the Legislature is all inclusive. It purports to control “[a ]11 school funds for current operation and maintenance purposes” and requires that they be apportioned by the trustee of the county among all school systems in the county whether operated by the county, city or other special school district. The only exception authorized is such funds as result from a local special pupil transportation levy. It is clear to me that the Legislative intent is evident and that the quoted provision requires apportionment of county school funds which are appropriated for current operation and maintenance purposes, regardless of the source of such funds; so that, Federal revenue sharing funds which are allocated for such school purposes must be apportioned under this provision.

Our recent decision in City of Harriman v. Roane County, Tenn., 553 S.W.2d 904 (1977) supports this view. Speaking for a unanimous Court, Mr. Justice Harbison, after noting that funds raised by a county from a special tax levy for the purpose of “the building, repair and equipment of county schools” were not required by the above quoted statute to be apportioned with other school systems in the county, further stated:

“Where, however, the county does not make such a special purpose levy, but lawfully appropriates funds to current school operations, as has been done here with the portion of sales tax at issue, then those funds become subject to the apportionment provisions of the general school statutes.” 553 S.W.2d at 909.

In the course of that opinion, we also quoted with approval from Board of Education of the Memphis City Schools v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569 (1960) as follows:

“In that ease a private act purporting to authorize a different distribution of funds between the city and county school systems from that provided in what is now T.C.A. § 49-605 was held unconstitutional and potentially disruptive of the uniform system contemplated by the general statu Les.

“In that case, the Court said:

‘The general purpose and plan of the Education Acts passed by the Legislature of Tennessee, beginning with the Act of 1925, referred to hereinabove, was to establish and maintain a uniform system of public education in this State, public education being primarily a State function. The philosophy permeating such general uniform plan, as set out in said General Education Acts, in so far as pertinent to the issues in these causes, provides for a division of all county school funds, with the exception of funds for the transportation of pupils attending the public schools, between the County School System and the School systems operated by municipalities or special school districts, such as the City of Memphis and its Board of Education, within the county, on a proportional basis of the average daily attendance of pupils attending the various schools in a county.’ 207 Tenn. at 345, 339 S.W.2d at 576.

“Further, the Court said:

‘Education of the youth of each county is the primary purpose of our State Educational System as reflected throughout all of its General Education Acts, and the apportionment of local school funds under the general law on the basis of average daily attendance of pupils in the various schools gives to every school system its proportional and fair share of said funds, so, in a sense, each pupil may be afforded the same opportunity to obtain an education, regardless of place of residence.’ 207 Tenn. at 351, 339 S.W.2d at 578.” 553 S.W.2d at 908.

This Court stated further in the City of Harriman case:

“The provisions of T.C.A. § 49-605 are mandatory. They require that all school funds for current operations and maintenance purposes collected by a county, except those used for pupil transportation, ‘shall be apportioned by the county trustee, among the county, city, and special school districts therein on the basis of average daily attendance maintained by each, during the current school year.’ ” 553 S.W.2d at 908.

It appears clear to me that the majority in the case at bar have departed from the liberal and very sound construction of T.C.A., § 49-605, laid down 19 years ago in Board of Education of the Memphis City Schools v. Shelby County, supra, and again only 18 months ago in City of Harriman v. Roane County, supra. In holding that the apportionment mandate of T.C.A., § 49 — 605, does not apply to “Federal revenue sharing funds” although those funds are appropriated by the county for current operation and maintenance school purposes, the majority has engrafted into the statute an additional exception which should read as follows:

“. . . and except for such funds as a county may receive from the Federal government as revenue sharing funds.”

Certainly the language of the statute does not require such an exception. Moreover, I think it clear that the judicially added exception of Federal revenue sharing funds is contrary to the manifest legislative intent, i. e., that the education of every school child in a given county of this state shall be supported by an equal number of dollars without regard to whether the child is a student of the county school system, the city school system or the system of some other special school district within the county and also without regard to the source of such school funds. The majority permits Madison County to appropriate huge sums of money for the education of children of the Madison County school system without apportioning those funds with the City of Jackson school system, merely because the source of those funds was a Federal “revenue sharing” grant.

The result thus reached by the majority is not required by the applicable Federal law, for, as pointed out in the majority opinion, the Federal act merely provides that Federal revenue sharing funds shall be expended . .in accordance with the laws and procedures applicable to the expenditure of its (county’s) own revenues.” 31 U.S.C., § 1243(a)(4). “Its (Madison County’s) own revenues,” once appropriated for current operation and maintenance purposes, as was done by the Madison County court in this case, are required by T.C.A., § 49-605, to be apportioned on the basis of average daily attendance with the City of Jackson school system. As we held in City of Harriman, supra, once the county “. . . lawfully appropriates funds to current school operations, . . . then those funds become subject to the apportionment provisions of the general school statute.” 553 S.W.2d at 909.

The majority notes that to hold that T.C.A., § 49-605, requires the apportionment of Federal revenue sharing funds with other school districts within a county does not comport with its notions of “considerations of equity and fundamental fairness.” Referring to the fact that the city also receives Federal revenue sharing funds from the Federal government, the majority notes that “[t]he pie has already been sliced; we are not willing to slice it again.” However, it should be noted that the “pie” was not doled out by the Federal government to the school system of Madison County or the school system of the City of Jackson; it was doled out to the county of Madison and the City of Jackson each of which was free to expend funds for purposes other than the current operation and maintenance of its school system. Once the county appropriated those funds for the current operation and maintenance of its county school system, however, they became subject to the apportionment required by T.C.A., § 49-605.

I would reverse the judgment of the Court of Appeals and affirm that of the trial court.

OPINION ON PETITION TO REHEAR

HENRY, Chief Judge.

The petition to rehear is respectfully denied.

Much of the petition takes two members of the Court to task for allegedly applying a “balancing of the equities” test. The opinion shows facially that equitable considerations formed no part of the Court’s construction of the statute. After construing Section 49-605, T.C.A., and holding that it was inapplicable to Federal Revenue Sharing Funds, we said:

This result not only is dictated by the language of the statute, but is commanded by considerations of equity and fundamental fairness.

Thus, it is evident that the matter of “balancing equities” formed no part of the statutory construction consideration. Moreover, three members of this Court expressly disapproved these considerations, thus rendering this portion of the opinion dicta and ineffective.

This Court is acutely aware of the financial considerations involved and is not unsympathetic to the problems of the City of Jackson. The City’s prayer for relief must be addressed to the General Assembly. We have construed the appropriate statutes and are satisfied with the conclusions we have reached.

All members of the Court continue to adhere to their previously expressed views.

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

      . The apportionment provision is now codified in § 49-614, T.C.A., which contains new acronyms, e. g., WFTEADA (weighted full-time equivalent average daily attendance), in place of ADA. Section 49-602, et seq. contains the statutory provisions relating to the State Foundation Program, and was derived from Chapter 289, Acts of 1977. References in this opinion are to § 49-605, T.C.A., as it appears in main Volume 9, T.C.A.

      . This action was instituted and all pertinent events occurred prior to the 1978 amendment to Article VII, Sec. 1 of the Constitution of Tennessee, which, inter alia, created the office of County Executive. This amendment was adopted in convention on December 6, 1977, approved by the people on March 7, 1978, and proclaimed by the Governor on March 31, 1978.

      . The correct title of this law is the “State and Local Fiscal Assistance Act of 1972.” We elect to use the popular name.

      . This mandate is re-stated in paragraph “5” of subsection A.


author: BROCK, Justice. FONES, Justice,

text:
    KELLWOOD COMPANY, Appellant, v. Quay GIBSON, Appellee.
    Supreme Court of Tennessee.
    May 7, 1979.
    Rehearing Denied June 11, 1979.
    Sidney W. Spragins, Jackson, for appellant; Spragins & Murchison, Jackson, of counsel.
    Pat H. Mann, Jr., Brownsville, for appel-lee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case. The employer appeals from the decree of the Chancellor awarding to the employee benefits for temporary total disability from May 28, 1975, to August 4, 1975, medical expenses incurred and benefits for 60% permanent partial disability to the body as a whole. The employer contests the Chancellor’s conclusion that the accident arose out of and in the course of the employee’s employment and also the Chancellor’s finding of permanent partial disability. We affirm the decree of the Chancellor.

At the end of the work shift on May 28, 1975, the plaintiff, along with other employees, was leaving the manufacturing plant of the defendant in which she worked when she received the injury. A heavy downpour of rain had just occurred prior to the end of the work shift and surface water from this heavy rainfall had collected on the parking lot owned and maintained by the defendant for the use of its employees. The parking lot was paved but had several deep potholes in the pavement. The heavy accumulation of surface water from the downpour filled the potholes and prevented their disclosure to the plaintiff as she was walking from the building where she worked toward the car in which she was to ride home and which was parked upon the defendant’s parking lot. She stepped into one of the deep potholes causing her to fall with great force to the pavement, thereby receiving the injuries which she alleges have disabled her.

The defendant has sought to avoid liability upon the theory that the plaintiff’s accident did not arise out of and in the course of her employment. This insistence, is without merit; the facts of this case clearly bring the accident within the ambit of liability as set out in Aluminum Company of America v. Baker, Tenn., 542 S.W.2d 819 (1976); Frazier v. Normak International and Chubb-Pacific Indemnity Group, Tenn., 572 S.W.2d 650 (1978); Potts v. Heil-Quaker Corporation, Tenn., 482 S.W.2d 135 (1972). In fact, this case for all practical purposes is indistinguishable from Aluminum Company of America v. Baker, supra.

In the instant case, the parking lot was owned and maintained by the defendant employer expressly for the purpose of providing a parking area for the automobiles used by its employees in going to and from work. A handbook, styled “Welcome! Let’s Get Acquainted,” issued by the defendant employer to its employees, including the plaintiff, contained the following provision:

“Parking Lot—
“At the end of the working day, Southern’s numerous employees are walking through our congested parking lot; so drivers must use extreme care when leaving the plant area. A speed limit of 15 miles per hour in entering and leaving the plant ground is enforced. Spinning of tires, excess speed, etc. are safety hazards and necessitate disciplinary action. Only park in specified areas. Your cooperation in this matter will be greatly appreciated.”

The evidence shows that there was no other place for defendant’s employees to park near its plant other than the parking lot maintained and provided by it for their use. Its parking lot was restricted to use by its employees and there is no way to exit the building in which the plaintiff works without crossing the parking lot where she fell. These facts bring the case squarely within the “required or furnished route” rule and the “special hazard” rule as defined in Aluminum Company of America v. Baker, supra, in which we said:

“We think the plant location and the concomitant unavailability of public parking areas for ALCOA’s employees, the fact that ALCOA built and maintains parking lots for its employees, the location of the parking lots, the restricted access to the parking lots, and the fact that an employee has to pass through the parking lots to gain access to the plant through the guard gate has the practical effect of making the parking lots a part of the premises of ALCOA which the employees are required to use for ingress and egress. Further, we think the evidence supports the conclusion of the trial judge that the use of the north parking lot subjected appellee to a special hazard known to ALCOA, the very hazard that caused ap-pellee’s fall.” 542 S.W.2d at 821.

Clearly, the Chancellor decided the issue of liability correctly.

The other question presented is whether there is any evidence to support the finding of the trial court that the plaintiff received a 60% permanent partial disability to her body as a whole. Shortly following the fall above mentioned, the plaintiff began to suffer pain in the area of her low back. She was treated by a Dr. J. T. Craig, an orthopedic surgeon selected by the employer, who treated her from June 6,1975, to April 13, 1976. Because of the injuries suffered, petitioner was off work from May 29, 1975, through August 4, 1975. After she returned to work, her pain and other symptoms recurred. The plaintiff is a 53-year-old woman with an eighth grade education who worked for the defendant from 1960 through April, 1976, as a sewing machine operator. Since she was injured, the plaintiff has been unable to do her household chores or to assist her husband in his operation of a nursery, as she did prior to the injury. According to Dr. Craig the injuries suffered by her aggravated a pre-existing arthritic condition of her low back.

Dr. Craig, the treating physician and the only medical witness who testified at the trial, stated that, assuming that the plaintiff is experiencing pain as she testified she was, she would be unable to do the type of work required of her employment with the defendant which included “lifting, moving bundles about at work and sitting for a long period of time.” He further stated that he had no reason whatever to disbelieve the plaintiff’s complaints. With respect to the effect of the work upon her symptoms, he stated:

“Mrs. Gibson was off work for a time after her fall, and during that period of time she appeared to have improved. She went back to work, and after she had been back to work for several weeks, she began to have pain and symptoms she was having before, but she did go back to work.”

At another point the doctor testified as follows:

“Q. Is it your opinion that the discomfort that she had was caused by a muscle strain or ligament strain?
“A. I believe it did start this way, yes.
“Q. Do you think that it continued to be caused .
“A. (Interposing) We do know that individuals back strains that are acute can become chronic in nature, yes.
“Q. Pain is, in your judgment, caused by muscle strain?
“Q. Yes.
“Q. Is a muscle strain something you ordinarily expect a patient to recover from?
“A. Normally through the course of time, the pain from a muscle strain does improve, yes.
“Q. Do you have any reason to believe that that won’t be true in Mrs. Gibson?
“A. All I can say is that it has been over a year now, and she is still having some pain, at least she was in April. I couldn’t say that she won’t get better sometime in the future. I can’t foresee the future. * * * * * *
“Q. Well, we are concerned with permanency and the .
“A. (Interposing) Well, as I stated, when she — in talking to her, when she didn’t do prolonged sitting, standing, bending or stooping, she has improved, and when she went back to work, the symptoms of pain came back. Of course, in another year this may improve further. I can’t predict.
“Q. When you stated that you didn’t feel that she had any permanent impairment, is that — do you confine that solely to the impairment of function?
“A. Of function, that’s correct. ******
“Q. When, in your opinion, did she receive maximum improvement from the injury which she described to you?
“A. In July of 1975.
“Q. Would that be July 28, 1975, date that you saw her?
“A. That is correct.”

Although the testimony of Dr. Craig leaves much to be desired, construing it most favorably to the conclusion reached by the trial judge, as we must, it may be considered sufficient to support the conclusion that the plaintiff suffered a permanent partial disability to her body as a whole. Of course, once permanency and causation are established by medical testimony, the extent of such disability may be determined from lay testimony and other evidence as well as from medical evidence. The ultimate determination in this respect rested heavily upon the credibility to be given to the plaintiff, herself, of whom the trial judge stated that he was very favorably impressed with her frankness and apparent honesty. We cannot say that this ultimate conclusion that she suffered a permanent partial disability of 60% of the body as a whole is without foundation in the evidence. Accordingly, we must affirm. Smith v. Hale, Tenn., 528 S.W.2d 548 (1975). We find no error; the decree of the trial court is affirmed. Costs are adjudged against the appellant.

HENRY, C. J., and COOPER, J., concur.

FONES, J., separate opinion concurring in part, dissenting in part in which HARBI-SON, J., concurs.

FONES, Justice,

concurring in part, dissenting in part.

I respectfully dissent.

I agree with the majority opinion on the issue of liability.

I do not agree that Dr. Craig expressed the opinion that plaintiff has a permanent partial disability. See Owens-Illinois, Inc., Forest Products Division and The Aetna Casualty and Surety Company v. Lane, released December 27, 1978, Eastern Division.

There being no other expert medical testimony, I would reverse the award of sixty percent permanent partial disability awarded by the trial judge.

I am authorized to state that Justice Har-bison concurs in this opinion.


author: BROCK, Justice.

text:
    Jayne Ann WOODS, Commissioner of Revenue for the State of Tennessee, Appellant, v. HOLIDAY INN OF MURFREESBORO, a corporation, Appellee.
    Supreme Court of Tennessee.
    May 29, 1979.

      Jim G. Creecy, Asst. Atty. Gen., Nashville, for appellant; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
    Ken Burger, Burger, Fly & McFarlin, Murfreesboro, for appellee.
   OPINION

BROCK, Justice.

The Holiday Inn of Murfreesboro filed this action in Chancery Court seeking a restraining order to prevent the imposition of a privilege tax under T.C.A., § 67-4102, Item U. It subsequently paid the tax of $10,312.32 under protest and amended the complaint to seek its refund. The Chancellor granted the refund plus interest and penalty, $12,639.03, and the Commissioner has appealed from that judgment.

T.C.A., § 67-4102, taxes the privilege of selling “mixed drinks and/or setups for mixed drinks.” The Murfreesboro Holiday Inn under a single roof operates a motel, restaurant and the Bavarian Lounge. The lounge features modern sound and light systems with “disco” music for dancing. It is regularly frequented by local college students, accommodates approximately 75 persons and is usually crowded. Mixed drinks are not served; however, a bar is maintained to serve beer, water and soft drinks. The bartender characterizes the lounge as a “beer bar.” Beer is sold for $0.80 to $0.90; soft drinks and water are sold for $1.00. The Commissioner’s estimate, based upon the taxpayer’s records, is that during the four year period in question, 1974-1977, the sale of soft drinks and water brought in receipts of approximately $68,748.00, which, assuming that sales were made six days per week, amounts to approximately $55.00 per day.

The Commissioner of Revenue asserts that the sales of water and soft drinks were sales of setups within the meaning of T.C.A., § 67-4102, Item U(b)2, which defines “setups” as follows:

“2. ‘Mixed drinks and/or setups for mixed drinks’ shall mean and include any sales of beverages containing any alcoholic content, other than beer, and shall include sales of water, soft drinks, ice or any item capable of being used to prepare a mixed drink at a place of business of a person liable for the tax imposed by this item.”

The Holiday Inn contends that: (1) it has a policy against “brownbagging” and (2) that it charges $1.00 for soft drinks and water only to discourage those patrons who do not buy beer from utilizing its facilities without contributing to the cost of providing entertainment. It had not imposed a cover charge prior to the assessment here at issue.

It is undisputed that brownbagging has occurred. Two employees of the lounge testified that they had mixed drinks from their own bottles while in the lounge. They were reprimanded by superiors and have not done so again. There was also testimony that some persons seen brownbagging were asked to remove the liquor from the lounge or to leave the premises if they refused. The employees admit that there must have been instances of brownbagging that they did not observe. They explained that the lounge was usually very busy and crowded and that they could not watch closely for brownbaggers. Since the assessment was levied, an additional employee has been stationed at the door to watch for brownbaggers.

The Chancellor concluded that the Holiday Inn had not solicited, promoted, nor encouraged the use of its premises for the sale of setups and, thus, was not liable for the “setup” tax because, in his opinion, the tax is applicable only to one who sells water and soft drinks with the clear intent that they be used to prepare mixed drinks of alcoholic beverages.

The Commissioner has appealed and asserts that the intent of the taxpayer is irrelevant and that the fact that the beverages were in fact used by customers .to mix drinks is sufficient to establish the tax liability. We agree.

The facts are not really in dispute; the issue is the proper construction and application of the statute. As applicable to this taxpayer, the Act taxes the privilege of selling “setups for mixed drinks” which include “. . . sales of water, soft drinks, ice or any item capable of being used to prepare a mixed drink at a place of business of a person liable for the tax imposed by this item.” The only “intent” of the seller that is required is the intent to sell items knowing that they are “. . . capable of being used to prepare a mixed drink.” It is not necessary to show that the seller knew of the buyer’s purpose to use the setup for preparation of a mixed drink. Sales of setups by cafes, cafeterias and restaurants which are merely incidental to the principal business are excluded by the statute, provided, no bar, lounge or separate facility is maintained for the purpose of serving or selling mixed drinks or setups for mixed drinks.

The evidence shows that during the taxable period the taxpayer had a substantial volume of sales of water and soft drinks in its “beer bar” and that these items were often used by “brownbaggers” in preparing mixed drinks. This sufficiently shows that the taxable privilege was exercised and the tax liability incurred. Cf. Hound’s Tooth of America, Inc. v. Benson, 223 Tenn. 340, 444 S.W.2d 283 (1969).

We hold that the plaintiff has failed to show that the taxes in issue were unlawfully collected. The decree of the trial court is reversed and the complaint dismissed at the cost of the plaintiff.

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

APPENDIX

“Item U. Establishments selling mixed drinks or setups for mixed drinks — Exceptions. — (a) Each person selling mixed drinks and/or setups for mixed drinks, as hereinafter defined, which aforesaid sale of setups for mixed drinks is hereby declared to be lawful in localities where the sale of packaged alcoholic beverages is lawful, shall for the privilege of doing such business pay to the state for state purposes an amount equal to fifteen per cent (15%) of the gross receipts, as hereinafter defined, in this state. This item shall also include the sale of setups for mixed drinks for consumption by persons supplying alcoholic beverages from their own bottle or other container on the premises of persons holding licenses under §§ 57-152 — 57-164 to dispense alcoholic beverages for consumption on the premises.

“(b) As used in this item the following definitions shall apply:

“1. A ‘person selling mixed drinks and/or setups for mixed drinks’ shall mean and include any person deriving receipts from the sale of mixed drinks and/or setups for mixed drinks or alcoholic beverages whether or not consumed on the premises and shall include any country club, night club or private club in the nature of any social, diner, athletic, or sporting club or organization, and any fraternal society, order, or association making sales and charges for any of these items.

“Provided, however, sales of mixed drinks taxed under provisions of Chapter 211 of the Public Acts of 1967 and sales of alcoholic beverages made by persons licensed under §§ 57-116 and 57-118 shall not be taxed under this item.

“The term shall not include sales of setups by cafes, cafeterias, and restaurants where such sales are merely incidental to the principal business and where no bar, lounge, or separate facility is maintained for the purpose of serving or selling mixed drinks and/or setups for mixed drinks.

“2. ‘Mixed drinks and/or setups for mixed drinks’ shall mean and include any sales of beverages containing any alcoholic content, other than beer, and shall include sales of water, soft drinks, ice or any item capable of being used to prepare a mixed drink at a place of business of a person liable for the tax imposed by this item.”

      . T.C.A., § 67-4102, Item U, is reprinted in part in the Appendix.