author: HERBERT C. CASTEEL, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Joseph COOK, Defendant-Appellant.
    No. 10339.
    Missouri Court of Appeals, Springfield District.
    Oct. 21, 1977.

      John D. Ashcroft, Atty. Gen., Robert M. Sommers, Frank J. Murphy, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Scott B. Tinsley, Anderson & Tinsley, Springfield, for defendant-appellant.
    Before TITUS, P. J., and PARRISH, CASTEEL and HENRY, Special Judges.
   HERBERT C. CASTEEL, Special Judge.

Appellant (hereafter defendant) was charged with the second degree murder of William Anthony Sater, an infant of 18 months, and after a jury-waived trial was found guilty and sentenced to a term of 25 years in the Missouri Department of Corrections. On this appeal he asserts 5 points of error which may be summarized as follows: (1) that the evidence was insufficient to support the conviction because of the lack of any evidence of premeditation and intent to kill; (2) that defendant’s verbal and written statements were erroneously admitted because they were given in an environment of psychological coercion; (3) that the testimony of two medical experts was erroneously admitted because they had no previous experience with the type injury received by decedent; (4) that defendant’s verbal and written statements were erroneously admitted because no corpus delicti was established; and (5) that the testimony of one medical expert as to the time of the injury and as to possible injury from a previous blow was erroneously admitted because it was based on hearsay.

In State v. Rose, 535 S.W.2d 115, 116-117[1 — 3 and 4] (Mo.App.1976), the guidelines for appellate review of a court-tried criminal case are set forth as follows:

“Since this case was submitted to the court without a jury, the provisions of Rule 26.01(b), Rules of Criminal Procedure, are applicable and, thus, the court’s decision of guilty ‘shall have the force and effect of the verdict of a jury’. The scope of appellate review is not to weigh the evidence, but rather, to conclude whether or not the court’s decision is supported by substantial evidence. If so, such finding and decision should be affirmed. State v. Daniels, 487 S.W.2d 465, 469[4] (Mo.1972); State v. Lane, 475 S.W.2d 91, 94[1] (Mo.1971). It is the basic function of the trial court in such a case to judge the credibility of the witnesses and to resolve any conflicts or inconsistencies in their testimony. State v. Styles, 476 S.W.2d 591, 592[3] (Mo.1972); State v. Landess, 485 S.W.2d 140, 142[5] (Mo.App. 1972).
“In determining the sufficiency of the evidence, this court accepts all evidence tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom. State v. Harris, 485 S.W.2d 612, 613-614[2] (Mo. 1972); State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo.1972); State v. Lemon, 504 S.W.2d 676, 679[1] (Mo.App.1973). Further, all inferences which could be drawn contrary to the result reached by the finder of the facts must be disregarded. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975).”

With these principles in mind, we consider defendant’s first point — that the evidence was insufficient to support the conviction. The necessary elements of second degree murder are willfulness, premeditation, and malice aforethought. State v. Randolph, 496 S.W.2d 257, 260[1] (Mo. banc 1973). In the context of murder, willfulness means “ ‘intentionally’ ” or “ ‘knowingly’ ”; premeditation means “ ‘thought of beforehand for any length of time, however short’ ”; and malice means “ ‘ “the intentional doing of a wrongful act without just cause or excuse” ’ ”. State v. Woodard, 499 S.W.2d 553, 556 (Mo.App.1973). A brief statement of the facts will show that the trial court did hear substantial evidence supporting all necessary elements of the crime.

In late January of 1975, Sue Ann Safer, the mother of Tony, the infant victim, met the defendant and approximately two days later permitted him to move into her apartment. Defendant was 19 years old, 6 feet 2 inches tall, and weighed 285 pounds. He was unemployed but Sue was working as a nurse’s aide. On February 7, 1975, Sue terminated the services of a babysitter she had been using for Tony because Tony had been coming home dirty and with scratches and “a few bruises on his arms and shin.” After this, defendant took care of Tony most of the time that Sue was at work. After defendant started caring for Tony, Sue noticed more and larger bruises on the child’s body. Tony was an active child and appeared to suffer more falls than average. However, one large bruise on the child’s buttocks was in the shape of a hand and was much larger than the hand of either of two women who examined the child on February 13 and February 14.

On March 14, 1975, defendant and Sue moved from the apartment to a mobile home. Defendant’s parents kept Tony during the move, and in the late afternoon defendant and Sue took Tony to the mobile home and, because he had missed his nap and was sleepy, Sue put him to bed with his clothes on. Later, while defendant and Sue were eating their supper, Tony got out of his bed and came to the table, and Sue then changed him to his pajamas for the night and put him back to bed. During this time defendant told Sue to get back to the table as her supper was getting cold, but she stayed with Tony until he was asleep. She testified that Tony appeared to be in good health.

The small bedroom occupied by Tony contained three pieces of furniture, a bed, a dresser, and a chest of drawers. The bed consisted of a twin-sized mattress and box springs with legs affixed into the bottom of the box spring. It was 19 inches from the floor to the top of the mattress. One side of the bed was against the south wall, and one end of the bed was against the west wall. The dresser was against the west wall with a distance of approximately 8 inches between the bed and the side of the dresser. The dresser was 2½ feet tall, and the corners on the top and front of the dresser were rounded. The chest of drawers was against the north wall several feet from the bed.

After supper defendant and Sue watched television; and about 9:00 o’clock, after checking on Tony, Sue went to bed. Defendant was also lying on the bed watching television and Sue was “half asleep” when they heard a “thump” from Tony’s room and defendant got up to check on him. Sue was not sure whether she- heard a second “thump” or not because she had dozed off again, but a few minutes after defendant left her room she heard Tony crying, and then defendant came in carrying Tony who was crying, holding his head to one side, and holding his clenched fist against his abdomen. After some discussion they took Tony to a hospital.

Dr. Robert L. Coscia, a surgeon with special training in trauma and shock, operated on Tony the following morning. He found several injuries in the abdominal area, the most significant being a “complete disruption” of the duodenum. This portion of the small intestine was torn completely in two, allowing the intestinal contents to escape into the abdominal cavity, causing a “sepsis” or infection, which resulted in Tony’s death on the morning of March 16, 1975. An autopsy was performed later that day by Dr. Robert L. Lovett, a physician and pathologist. Both doctors testified that Tony’s injuries were caused by an external force applied generally from front to rear and that a great deal of force was required. They stated the injuries were consistent with the child’s being thrown with considerable force against the rounded corner of the dresser and were inconsistent with the usual childhood falls.

The defendant gave an oral statement to law officers on March 19 and then gave a written statement on March 25, 1975. On both occasions he was advised of his rights before he was questioned. The key portion of his written statement follows: “I heard something in Tony’s room. I went into Tony’s room and he was playing in the floor. I sat him upon the bed and Tony jumped back down. It made me mad. I picked him up and told him to lay down and threw him bodily toward the bed and Tony didn’t hit the bed, he hit the corner of the dresser which was flush against the wall and fell back onto the bed and Tony started crying.”

There is little question as to the element of malice. The court could and did find that defendant threw the child with great force — “ ‘ “the intentional doing of a wrongful act without just cause or excuse” ’ ”. State v. Woodard, supra, 499 S.W.2d at 556. This supplies the element of malice aforethought. There was substantial evidence from which the court could find that defendant became angry at the child and picked him up and threw him with great force and thus his wrongful act was “ ‘thought of beforehand for any length of time, however short’ ”. Woodard. This supplies the element of premeditation.

There remains the element of willfulness — did the defendant act “ ‘intentionally’ ” or “ ‘knowingly’ ”? Woodard at 556. An intent to kill or to cause serious bodily harm is an essential element of murder in the second degree. State v. Hudson, 521 S.W.2d 43, 46[6] (Mo.App.1975); see also . MAI-CR 6.06. Defendant is held to have intended all the natural consequences of his acts. State v. Lamborn, 452 S.W.2d 216, 218[l-4] (Mo.1970). In that case, a conviction of second degree murder of a 6-year-old child was affirmed upon evidence showing that defendant, a woman, had previously mistreated the child and on the night of the child’s death had beaten her head against a window and the bottom of the window.

The intent to kill may be inferred from the circumstances; and when an assault is by a means likely to produce death, and death ensues, the actor is presumed to have intended the death. State v. Allen, 530 S.W.2d 415, 420[9-ll] (Mo.App.1975). In that case, a conviction of second degree murder of an 18-month-old infant was affirmed upon evidence that defendant, a young man, had hit the child in the stomach with his fist some 3 or 4 days before its death, causing a rupture to the pancreas. Evidence of prior mistreatment of a child may be considered in establishing the intent required for murder in the second degree. State v. Hudson, supra, 521 S.W.2d at 45[4].

In the present case, there was substantial evidence from which the trial court could find the following relevant facts: that defendant had previously mistreated Tony, indicating animosity or jealousy; that on the night in question the defendant was irritated when Tony interrupted the evening meal; that he was further irritated by the later interruption, and became so angry when Tony jumped off the bed the second time that he picked him up and threw him with great force toward the bed. Ordinarily this would not be a means likely to produce death or serious bodily harm and thus would not be a means from which the necessary intent may be inferred. But different standards are applied where there is great disparity in physical strength and ability. State v. Allen, supra, 530 S.W.2d at 420. The assault in this case, by a 6 foot 2 inch, 285 pound man upon a 25 pound infant, involved such force that it was likely to produce death or serious bodily harm; and since death did result, the defendant is presumed to have intended the death. We find there was substantial evidence to support all of the necessary elements of second degree murder.

By his second point of error, defendant claims that his oral and written statements were involuntary and, therefore, should not have been admitted. He insists that he was frightened by “swear words” and threats of a first degree murder charge and misled by promises of leniency and misinformation as to the elements of second degree murder to the point of rendering his statement involuntary. The defendant testified in support of these claims and in addition repudiated the written statement claiming that it contained the officers’ words and not his. Two officers testified that no threats or promises were used, that very few “swear words” were used and these were not used in anger, and that the statement was typed word for word as defendant gave it. They agreed, however, that one officer did tell defendant that the difference between first and second degree murder was the element of intent.

We give due deference to the opportunity of the trial court to judge the credibility of witnesses; and where the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion. State v. Blankenship, 526 S.W.2d 78, 82[6, 7] (Mo.App.1975). As to the misinformation pertaining to the elements of second degree murder, we agree with the trial court that this did not render the confession involuntary. Since this led defendant to believe that even an accidental killing amounted to second degree murder, it seemingly would have discouraged rather than encouraged a statement. We find no error in the admission of defendant’s oral and written statements.

The third point attacks the qualifications of the two medical experts to testify as to the cause of death. Neither doctor had ever seen this precise injury before in a child less than two years of age. Dr. Coscia testified this was only the second such case in medical literature. However, Dr. Coscia testified that he had performed surgery on 13 to 15 patients who had traumatic injuries to the duodenum and that in a recent 18-month period he had performed approximately 75 operations involving injuries to the abdominal area. When Dr. Lovett took the stand, defendant admitted his qualifications as a pathologist.

Qualification of an expert witness in a criminal case is a matter resting primarily in the sound discretion of the trial court and is not reversible on appeal absent a clear showing of abuse of that discretion. State v. Harvell, 527 S.W.2d 445, 447[1] (Mo.App.1975). Clearly there was no abuse of the trial court’s discretion in this case. We find no merit in defendant’s third point of error.

Point four claims that defendant’s oral and written statements were inadmissible because no corpus delicti was established in that there was no evidence of a criminal agency causing the death of the child. This point rests on point three — defendant claiming the testimony of the medical experts as to cause of death should have been excluded and therefore the corpus delicti was not established. We have ruled point three against defendant, and it follows that he must fail on this point, too.

By his final point, defendant claims error in the admission of Dr. Coscia’s testimony as to the time of the injury and as to the possibility of two separate injuries to the duodenum because this was based on a tissue report made by Dr. Lovett but not testified to by Dr. Lovett. Defendant relies on State v. Johnson, 504 S.W.2d 334 (Mo. App.1973), where it was prejudicial error to permit the coroner to testify from the autopsy report of a doctor who did not appear at the trial.

In the present case, Dr. Lovett was called as a witness. Furthermore, the statement by Dr. Coscia to which defendant objects was found in the second redirect examination. Prior to this, he had testified that he saw no evidence of two injuries, that in his opinion the injuries were not more than 24 hours old, and that defendant’s theory of two injuries to the child’s duodenum was “unlikely.” Only after continued probing by the attorneys, did Dr. Coscia volunteer the information that his findings were supported by the tissue report. When Dr. Lovett took the stand, he stated the two injury theory was “impossible.” Thus, Dr. Coscia’s hearsay reference to Dr. Lovett’s report was cumulative and harmless. State v. Coker, 534 S.W.2d 80 (Mo.App.1976). We rule point five against defendant.

The judgment is affirmed.

TITUS, P. J., and JOHN E. PARRISH and GEORGE HENRY, Special Judges, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John GRAY, Plaintiff-Respondent, v. Berbage BRYANT and Charlotte Bryant, his wife, Defendants-Appellants.
    No. 10753.
    Missouri Court of Appeals, Springfield District.
    Oct. 24, 1977.
    Donald R. Rhodes, Bloomfield, for plaintiff-respondent.
    James E. McGhee, Parsons & Mitchell, Dexter, for defendants-appellants.
   PER CURIAM.

This is an appeal from an action on a promissory note. On April 21,1977, a Stod-dard County jury returned a verdict in favor of plaintiff in the amount of $4,333.27.

On the same day, the following entry was made:

“Judgment in favor of plaintiff and vs. defendants in total sum of $4333.27 in accordance with jury verdict. Cost taxed vs. defendants.”

The quoted material may suffice as a minute or docket entry but fails to constitute a judgment from which an appeal may be taken, notwithstanding its cognomination as a “judgment.” Cochran v. DeShazo, 538 S.W.2d 598, 601[6] (Mo.App.1976).

The appeal is dismissed.

All concur.


text:
    Laveda Newcomb WHITEAKER, Plaintiff-Respondent, v. CITY OF SALEM, Missouri, Defendant-Appellant.
    No. 10673.
    Missouri Court of Appeals, Springfield District.
    Oct. 24, 1977.

      Jerry B. Schnapp, Fredericktown, for plaintiff-respondent.
    J. Max Price, Salem, for defendant-appellant.
   PER CURIAM.

On February 25, 1977, a Dent County jury returned a verdict favoring the plaintiff in an action to recover for injuries allegedly sustained as the result of driving her automobile into a depression in a city street. Appellant filed an after-trial motion. Thereafter, appellant initiated the present appeal by filing a notice of appeal. However, the appeal is premature as the transcript filed with this court demonstrates that no judgment has been entered in this case.

In Missouri, a final judgment forms the basis for appellate review. Section 512.020, V.A.M.S.; Rule 74.01, V.A.M.R. The absence of a final judgment deprives this court of appellate jurisdiction and would convert any purported review into a meaningless act.

The appeal must be, and is, dismissed for lack of a judgment.

All concur.


author: BROCK, Judge.

text:
    The CROWN ENTERPRISES, INC., Appellant, v. Jayne Ann WOODS, Commissioner of Revenue of the State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    Oct. 31, 1977.
    James W. Bradford, Jr., Hunter, Smith, Davis, Norris, Treadway & Hadden, Kings-port, for appellant.
    David S. Weed, Asst. Atty. Gen., Nashville, for appellee; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Judge.

This is a suit for the refund of corporate franchise taxes paid under protest for the tax years 1972 and 1973. Plaintiff, Crown Enterprises, Inc., is a Tennessee corporation engaged in the business of acquiring, developing and selling property. One aspect of plaintiff’s business is the construction and development of “Crown Colony,” a planned unit development (PUD) located near Kingsport.

For the years 1972 and 1973 the plaintiff-taxpayer excluded from its franchise tax base $1,406,493.83 (for 1972) and $2,432,-683.6S (for 1973), amounts representing the value of property being used during the course of construction of the residential units comprising Crown Colony. The Commissioner of Revenue determined that the amounts excluded during the years in question should have been included in the franchise tax base and, therefore, made demand for payment of additional taxes, plus interest, in the total amount of $6,577.04. Plaintiff paid this additional assessment under protest, and sued to recover the sums paid.

The trial court dismissed the taxpayer’s complaint, finding that the corporate taxpayer made “actual utilization” of the properties within the meaning of T.C.A. § 67-2909 (recodified in 1976 as § 67-2908) and, therefore, was not entitled to the franchise tax exemption provided by that Section.

I

This Court has held that the corporate franchise tax is a privilege tax on the net worth or capital of the corporation. Memphis Peabody Corp. v. MacFarland, 211 Tenn. 384, 365 S.W.2d 40 (1962). T.C.A. § 67-2909 (recodified in 1976 as § 67-2908), the particular provision here in dispute, is as follows:

“The measure of the tax hereby imposed shall in no case be less than the actual value of property owned, or property used in Tennessee. Provided, however, there shall not be included within the meaning hereof the value of any property while construction of same is in progress and, in addition thereto, there is no actual utilization of such property by the corporation either in whole or in part.”

This provides the method for determining the minimum net worth of the capital of the corporation. Memphis Peabody Corp. v. MacFarland, supra. Thus, the minimum measure of the corporate franchise tax is “the actual value of the property owned, or property used in Tennessee.” But, the proviso exempts from inclusion in the minimum measure the value of any property which is (1) under construction and (2) is not being utilized, in whole or in part, by the corporation. Both of these two conditions must exist before property can be excluded from the minimum measure.

The Commissioner agrees that the residential units in question were under construction, but she insists that the statutory requirement that there be “no actual utilization of such property by the corporation” has not been met under the facts presented here. She argues that since the very business of this taxpayer is to develop land into housing units it follows that corporate property that is in the process of such development is being “utilized” within the meaning of this statute.

The taxpayer, however, contends that the statute clearly and unambiguously exempts property (1) under construction and (2) not actually utilized and points out that, during the years in question, the taxpayer neither occupied, advertised, leased or otherwise derived income from the property. The taxpayer advocates as a test of “utilization” a factual determination of when the taxpayer obtains the economic value of its capital investment, pointing out that Webster’s Third New International Dictionary (1965 unabridged edition) defines the word “utilize” as “[t]o make useful: turn to profitable account or use: make use of: convert to use.” Taxpayer buttresses its interpretation of the phrase by the dictionary definition of “actual”: “Something that is actual or exists in fact: reality: something actually received or at hand (as a cash receipt or a market commodity) as distinct from estimated or expected.”

Judge Learned Hand, whose wisdom has enriched most branches of jurisprudence, has said of statutory interpretation:

“ * * * It does not follow that Congress meant to cover such a transaction, not even though the facts answer the dictionary definitions * * * the meaning may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear and which all collectively create.” Helvering v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934).
“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish where sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945), aff’d 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945).

Taxpayer relies upon the most frequently cited canon of construction of tax statutes, i. e., laws imposing taxes must be construed strongly against the taxing authority. See, e. g., White v. Roden Elec. Supply Co., Inc., Tenn., 536 S.W.2d 346 (1976). Often an elaboration is added to this basic canon of construction that if there are doubts or ambiguities contained in the statute, they must be resolved in favor of the taxpayer.

When, however, the issue under consideration is whether a particular taxpayer is exempt from a tax, the opposite rule has developed. “Exemption provisions are most strongly construed against the person claiming the exemption.” J. Hellerstein, State & Local Taxation 33 (1969). The claimant must clearly fall within the exemption; the courts will not grant special preferences.

The most fundamental rule of statutory construction, however, and the rule applied by this Court is to ascertain and give effect to the intention or purpose of the legislature as expressed in the statute. See, e. g., State ex rel. Rector v. Wilkes, 222 Tenn. 384, 436 S.W.2d 425 (1968). Such intent must, of course, be derived from a reading of the statute in its entirety and within its statutory context.

II

The corporate franchise tax imposed by Chapter 29 of Title 67 of Tennessee Code Annotated is a tax upon the privilege of engaging in business in the corporate form in Tennessee. Mid-Valley Pipeline Co. v. King, 221 .Tenn. 724, 431 S.W.2d 277 (1968). R. J. Reynolds Tobacco Co. v. Carson, 187 Tenn. 157, 213 S.W.2d 45 (1948). It is undisputed that the plaintiff-taxpayer is a corporation engaged in the business of acquiring, developing and selling property. As such, the corporation clearly is subject to the taxing authority of the State of Tennessee.

In our opinion the legislature, by exempting from the minimum measure of the corporate franchise tax the value of any property under construction and not actually utilized by the corporation, intended to exclude only property which has not yet become a part of the capital employed in the particular business of the corporation. For example, manufacturing facilities while under construction and not otherwise utilized, would be exempt from the corporate franchise tax liability of a corporation whose business was manufacturing. The determination of the utilization issue depends, in large part, upon the particular nature of the business of the taxpayer.

A corporation that is engaged in the business of building and selling houses is utilizing the homes that it has under construction in conducting that business. The property represented by the homes under construction is a part of the capital employed in doing the corporate business in Tennessee and thus represents a part of the measure of the use of the corporate franchise. Accordingly, it is property includable in the minimum measure of the franchise tax. See People ex rel. Fifth Ave. Bldg. Co. v. Williams, 198 N.Y. 238, 91 N.E. 638 (1910).

Accordingly, we affirm the judgment of the trial court and hold that the $6,577.04 paid under protest by the taxpayer was properly assessed by the Commissioner. Costs incurred on appeal are taxed against appellant.

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

      . Mr. James R. Bowles, the corporate secretary of Crown Enterprises, testified that the sums excluded represented the following expenditures. The discrepancy between the total sums for 1973 is not explained by the record.
      1972 1973 $ 488,814.21 $ 543,949.11 318,263.94 604,872.33 90,320.23 217,423.70 Land irrprovsnents {site preparation) Materials inventory
      1972 1973 Structures (residential units, outbuildings, recreational facilities) 383,289.85 629,684.79 Miscellaneous overhead (cost of master plan, depreciation of equipment, property taxes, management fees, supervisory wages) 125,805.01 424,475.52 $1,406,493.84 $2,420,405.45


author: HENRY, Justice.

text:
    STRATTON-WARREN HARDWARE and Continental Insurance Company, Appellants, v. Harold W. PARKER, Appellee.
    Supreme Court of Tennessee.
    Nov. 7, 1977.
    James F. Eggleston, John R. Johnson, III, Buchignani & Greener, Memphis, for appellants.

      Ben Todd, Memphis, for appellee.
   OPINION

HENRY, Justice.

This is a workmen’s compensation action. The defendants, Stratton-Warren Hardware Company and Continental Insurance Company, appeal from a decision of the Shelby County Circuit Court awarding benefits for 100% total and permanent disability to the plaintiff, Harold W. Parker, an employee of Stratton-Warren. Mr. Parker suffers from emphysema, pulmonary fibrosis and bilateral bronchiectasis, all allegedly caused by the environment in which he worked.

Three issues are presented upon this appeal: (1) whether there is any material evidence that plaintiff gave timely notice to his employer as required by Section 50-1107, T.C.A.; (2) whether the conditions from which plaintiff suffered are compen-sable occupational diseases under the facts of this case; and (3) whether there is any material evidence that the conditions of plaintiff’s job caused his illness.

I.

Plaintiff began to work for defendant Stratton-Warren in 1951. He had been suffering from asthma since early childhood. Despite asthmatic attacks once or twice a month, however, plaintiff enjoyed general good health at the time of his employment and was not disabled by his disease. Plaintiff had smoked cigarettes since his late teens.

Prom 1951 to 1975, plaintiff worked on the third floor of Stratton-Warren’s warehouse, an old brick building without air conditioning or heat on the plaintiff’s floor, except for a small heater beneath his desk. As a result, plaintiff was subjected to extremes of temperature in the winters and summers.

The air on the third floor was contaminated with a black dust that visibly covered the building’s beams, ledges and shelves. This dust would be picked up and circulated by exhaust fans in the ceiling and by vacu-urns and brooms used to clean the building. The origin of this dust was unclear although plaintiff’s evidence attempted to connect it with railroad engines on two tracks running near the building. The air was also contaminated by gas and exhaust fumes, which drifted up from lower floors of the warehouse where forklifts were operated.

Over the years, plaintiff’s respiratory condition gradually worsened until, in 1972, he went to Dr. B. E. McLarty to be treated for “shortness of breath.” Dr. McLarty eventually diagnosed plaintiff’s condition as emphysema, pulmonary fibrosis, bilateral bronchiectasis and “life-long asthma,” all of which, except for the asthma, had developed sometime in the past five to ten years.

During the time that Dr. McLarty treated plaintiff, no mention was made of plaintiff’s work conditions until March 19, 1975, when Dr. McLarty asked plaintiff about his work environment. As a result of this conversation, Dr. McLarty and plaintiff became aware of a connection between plaintiff’s respiratory problems and his working conditions, and the doctor advised plaintiff to leave his job.

Dr. McLarty then wrote a letter, addressed “To Whom It May Concern,” in which, after summarizing plaintiff’s treatment, he noted:

Mr. Parker has been employed as a warehouse supervisor and has found it increasingly difficult to do his work because of increasing age, worsening of his respiratory symptoms, and a heavier work load due to a decrease in personnel at his place of employment.
Diagnoses: 1. pulmonary fibrosis and emphysema; 2. bilateral bronchiectasis; 3. life-long bronchial asthma. . Prognosis: it is a certainty that with pulmonary fibrosis and emphysema, bron-chiectasis and bronchial asthma, Mr. Parker is much more likely to get worse than better. It is my feeling that his prognosis will be much better if he can get away from the dust and exertion involved in his warehouse job.

The next day, plaintiff gave this letter to his employer and asked for “all benefits receivable under disability.” Although his employer told him that he was not “eligible for anything,” plaintiff still requested and completed forms for disability insurance and retirement benefits. On these forms plaintiff checked the box indicating that he did not expect to receive workmen’s compensation, although he placed a question mark at the head of the column in which this check was written, opposite the blank for Federal Social Security Benefits.

When plaintiff received no disability or retirement benefits, his attorney contacted his employer concerning these benefits and vacation pay. It was not until October 16, 1975, that Stratton-Warren received a letter expressly stating that plaintiff was seeking workmen’s compensation.

II.

Defendants complain that there is no material evidence to support the trial judge’s finding that “the plaintiff gave timely notice within the intent of the Tennessee Workmen’s Compensation Act and that plaintiff reasonably complied with such provisions of the Act.” They argue that there is nothing in the letter written by Dr. McLarty or the statements made by plaintiff to his employer that would have indicated that plaintiff was claiming that his respiratory ailments arose from conditions at Stratton-Warren.

In workmen’s compensation cases, this Court, no matter what its opinion may be regarding the weight of the evidence, must affirm the findings of the trial court when they are supported by any material evidence. Kingsport Press, Inc. v. Van Huss, 547 S.W.2d 572 (Tenn.1974). Also, those sections of the Workmen’s Compensation Act relating to occupational diseases are to be given a liberal construction. Brooks v. Gilman Paint Co., 208 Tenn. 595, 347 S.W.2d 665 (1961).

With these considerations in mind, this Court must uphold the trial judge’s finding that the plaintiff reasonably complied with the notice provisions of the Act. Upon being informed by his physician of a connection between his respiratory problems and his working conditions, plaintiff timely presented Dr. McLarty’s letter to his employer. In this letter Dr. McLarty indicated that there was a relation between plaintiff’s condition and his working environment, that dust, exertion and increasing work load had contributed to plaintiff’s disability.

Plaintiff gave his employer notice of every fact that he himself had in his possession at that time regarding the connection between his pulmonary condition and his work environment. Dr. McLarty’s letter reasonably suggested that plaintiff’s disease arose out of plaintiff’s employment at Stratton-Warren and that compensation liability was possible. See Powers v. Beasley, 197 Tenn. 549, 276 S.W.2d 720 (1955); A. Larson, Workmen’s Compensation § 78.-31(a) (1976).

Defendants’ first assignment of error is overruled.

III.

The other assignments of error raised by defendants complain of the trial court’s findings that plaintiff was suffering from a compensable occupational disease. Defendants assert that there is no material evidence to support the finding that plaintiff’s disease originated in his work environment.

As was stated in Brooks v. Gilman Paint Co., 208 Tenn. 595, 600, 347 S.W.2d 665, 667 (1961):

[I]t has long been the rule in this State that the employer employing a workman takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal healthy person and, if injury is the proximate cause of disability and excites and aggravates a previous weakened condition, the employer is liable. . . . [W]e can see no reason why the same principle should not apply by analogy to aggravation, acceleration or exacerbation of a pre-existing condition or disease brought about by an occupational disease.

Despite testimony that asthmatics may eventually show some signs of the conditions disabling plaintiff and that other factors, including smoking, could also contribute to the development of emphysema and fibrosis, there was ample testimony by Dr. McLarty that the dust and other work factors were causally related to plaintiff’s condition. Dr. McLarty indicated that trauma associated with plaintiffs work excited and aggravated plaintiff’s asthma, a pre-exist-ing condition, with the result that plaintiff was prematurely, if he would ever have been, crippled by emphysema and fibrosis.

Defendant argues that, in the absence of any sensitivity tests to determine what type of dust irritated plaintiff, any medical opinion that the work environment caused plaintiff’s condition is “mere speculation and without foundation.”

Absolute certainty on the part of a medical expert is not necessary to support a workmen’s compensation award, for expert opinion must always be more or less uncertain and speculative. American Insurance Co. v. Ison, 538 S.W.2d 382 (Tenn.1976); Great American Indemnity Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908 (1955). Although no tests had been made, Dr. McLarty was still able to state that he believed that the diseases in question were caused by the “particular hazards” of plaintiff’s employment.

For the above reasons, we hold that there was material evidence to support the trial judge’s findings that plaintiff suffered from a compensable occupational disease.

Affirmed.

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

      . Defendant employer in this case had elected to be covered under the alternate plan provided in Section 50-1103, T.C.A.


author: COOPER, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Thomas A. MELLONS, Respondent.
    Supreme Court of Tennessee.
    Nov. 7, 1977.

      Robert L. Jolley, Jr., Asst. Atty. Gen., Brooks McLemore, Jr., Atty. Gen., State of Tennessee, Nashville, for petitioner.
    J. Randall Shelton, Morristown, for respondent.
   OPINION

COOPER, Chief Justice.

Thomas A. Mellons was indicted on two counts of second degree murder in connection with the deaths of Brenda and Carolyn Parker, sisters of fifteen and seventeen years of age, respectively. At trial, evidence was presented that Mellons had arrived at the Parker home at approximately 9:00 p. m. on January 29, 1974, driving his father’s car. The two girls left with him. Shortly after midnight, the police were called to investigate an accident that had occurred at a narrow country bridge. As the accident has been reconstructed, the Mellons’ car approached the bridge at a high rate of speed, crossing over to the shoulder on the left hand side of the road some fifty to one hundred yards from the bridge. It struck the guard rail at the side of the bridge, flipped over, and landed on its roof in the shallow creek flowing under the bridge. Carolyn Parker was dead when the police arrived, and Brenda Parker died on the way to the hospital. Thomas Mel-lons, although seriously injured, was conscious and apparently lucid when the police arrived. While being helped into the ambulance, he was asked who had been driving, and answered, “I was.” At that time, one of the investigating officers smelled alcohol on Mellons’ breath. A test taken at the hospital after Mellons arrived showed a blood alcohol level of .10 percent. Similar tests showed that neither girl had been drinking. In his charge to the jury, the trial judge gave instructions concerning second degree murder, and both voluntary and involuntary manslaughter. Mellons was convicted of two counts of voluntary manslaughter, and sentenced to two years on each, the sentences to run concurrently.

On appeal, the Court of Criminal Appeals reversed on two grounds. First, they held that it was reversible error for the trial judge to instruct the jury on voluntary manslaughter, and then to accept a verdict finding the defendant guilty of that offense, when there was no evidence in the record to satisfy the legal requirements of the crime. Secondly, the court found that the trial judge had denied the defendant the opportunity to testify outside the presence of the jury concerning the circumstances under which a blood alcohol test was taken on the night of the accident in support of his motion to suppress the results of the test.

“A homicide of this character, generally speaking, is either involuntary manslaughter [citing cases] or second degree murder . . . ." Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500, 502 (1957). Rarely will the facts be such as to show that the defendant has committed voluntary manslaughter. In the instant case, there is no question but that the evidence in the record fails to satisfy the legal requirements of the crime of voluntary manslaughter. Manslaughter is defined in T.C.A. § 39-2409 as “the unlawful killing of another without malice, either express or implied, which may be either voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act.” There is no evidence which indicates that the defendant caused the death of the two girls “upon a sudden heat.”

However, that, of itself, does not necessarily require that the conviction of the defendant for voluntary manslaughter be reversed. Under T.C.A. § 40-2520,

[u]pon an indictment for any offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto . Furthermore, under T.C.A. § 40-2518,

[i]t [is] the duty of all judges charging juries in . prosecutions for any felony when two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.

Voluntary manslaughter is a lesser degree of homicide than second degree murder, the offense with which the defendant was charged in this case. Templeton v. State, 146 Tenn. 272,240 S.W. 789 (1922); Bartlett v. State, 1 Tenn.Cr.App. 60, 429 S.W.2d 131 (1968). If the statutes cited are taken literally, they mandate an instruction concerning and sanction a conviction of voluntary manslaughter in all cases in which the jury is properly charged on second degree murder. However, as these statutes have been interpreted, it is not reversible error for the trial judge to fail to give an instruction on a lesser degree of an offense or on a lesser included offense of which there is no evidence in the record. Owen v. State, 188 Tenn. 459,221 S.W.2d 515 (1949); Powers v. State, 117 Tenn. 363, 97 S.W. 815 (1906). To the contrary, the giving of instructions on offenses for which there is no evidence in the record is to be avoided. Whitwell v. State, 520 S.W.2d 338 (Tenn.1975). But the giving of such an instruction, even though it results in conviction of a lesser included offense not supported by the evidence, though error, is not necessarily reversible error. On appeal, a conviction of a lesser degree of the crime charged, or of a lesser included offense, will be upheld, even if there is no evidence in the record to establish the technical elements of that crime, if the evidence demands a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal of the greater crime, or if there is, the verdict of the jury clearly indicates that the evidence in support of acquittal was disbelieved, on the theory that the defendant was not prejudiced by the charge and the resulting verdict. See Reagan v. State, 155 Tenn. 397, 293 S.W. 755 (1927); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1975); Howard v. State, 506 S.W.2d 951 (Tenn.Cr.App.1973). See also 102 A.L.R. 1019, 1026; 4 WHARTON’S CRIMINAL PROCEDURE § 545 at 29-30 (12th ed. Torcía 1976).

In the instant case, there is reason to believe that the giving of instructions on voluntary manslaughter did prove prejudicial to the defendant. This was not a situation in which the defendant was guilty either of the greater crime charged or of no crime at all, so that the jury’s verdict, finding him guilty of the lesser degree of homicide, could best be understood as an act of mercy of which he would not be heard to complain. See, e. g, Green v. State, 512 S.W.2d 641 (Tenn.Cr.App.1974); Smith v. State, 222 Ark. 650, 262 S.W.2d 272 (1953). Here, the jury would have been fully justified, under the evidence, in returning a verdict of guilty of involuntary manslaughter. That the jury chose to sentence the defendant to the statutory minimum for voluntary manslaughter suggests that they would not have found the defendant guilty of second degree murder if given the choice, as they should have been, between that crime and involuntary manslaughter. Under the circumstances, we agree with the Court of Criminal Appeals that the conviction of the defendant of the crime of voluntary manslaughter must be set aside.

In its assignments of error, the State has asserted that the Court of Criminal Appeals erred in placing upon the State the burden of showing that the defendant consented to the blood alcohol test taken after he arrived at the hospital. The Court of Criminal Appeals made no ruling on this issue, but merely held that the defendant was to be afforded the opportunity to give a jury-out explanation of the circumstances surrounding the blood test in support of his motion to suppress the results of the test. We agree with this holding.

The judgment of the Court of Criminal Appeals reversing the convictions and remanding the case for a new trial on the charge of involuntary manslaughter is affirmed.

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


text:
    FIRST AMERICAN NATIONAL BANK, etc., et al., Petitioners, v. Estelle Virginia Strasser CHARLTON, Respondent.
    Supreme Court of Tennessee.
    Nov. 7, 1977.

      Hofstetter & Hofstetter, Nashville, for petitioners.
    Jay C. Evans, Nashville, for respondent.
   OPINION

COOPER, Chief Justice.

We granted certiorari in this case to review an award of attorney’s fees to counsel for an unsuccessful claimant in a suit brought to construe a will. The will in question is that of the late Will Andrew Strasser. The testator left his residuary estate “to [his] nieces and nephews, the children of [his] brothers and sisters, per stirpes.” The respondent, Estelle Charlton, is the adopted daughter of Will Strasser’s deceased brother, Leopold Strasser. Will Strasser died on August 17, 1969, and the petitioner, the First American National Bank, was named executor under the will. Counsel for the bank wrote to the respondent, and to two other adopted children of Leopold Strasser, informing them that, in his opinion, they had no claim against the estate under the will, and asked them to execute waivers. The other two adopted children declined to contest that opinion. On January 4, 1974, the respondent filed suit in chancery court, seeking construction of the will, and contending that she was a beneficiary under the residuary clause. The chancery court found against the respondent, holding that “children” when used in a will is presumed to exclude adopted collaterals absent an indication of a contrary intent on the part of the testator, and that no such intent had been shown in the instant case. On appeal, the Court of Appeals affirmed, but remanded the case so that the chancellor might determine whether it would be appropriate to award attorney’s fees, payable by the estate, to counsel for the respondent. The chancellor awarded attorney’s fees of $5,000.00, and the Court of Appeals affirmed.

As a general rule, when a suit for the construction of a will brought by a prospective beneficiary inures to the benefit of the estate, the attorney for the complainant is entitled to a reasonable fee payable by the estate. Leaver v. McBride, 506 S.W.2d 141 (Tenn.1974). When however, the suit is brought for the benefit of the beneficiary, and has as its objective the defeat of the testator’s intent, the complainant’s attorney has no right to compensation from the estate. In re Eppinger’s Estate, 207 Tenn. 53, 336 S.W.2d 28 (1960).

In the instant case, there is no material evidence in the record to support a finding that the suit filed on behalf of the respondent was brought for, or inured to, the benefit of the estate. The suit did not aid in the determination of the testator’s true intent. See, e. g., Leaver v. McBride, supra. To the contrary, in view of the conclusion reached by the courts below as to the proper construction of the will, it must be said that the executor had already construed the will in accordance with the intent of the testator prior to the institution of this suit, and that the position taken by the respondent was antagonistic to that intent. See Pierce v. Tharp, 224 Tenn. 328, 455 S.W.2d 145 (1970). Nor can it be said that the suit was necessary or beneficial to the estate in that it removed a cloud upon the title of the estate’s real property. Any cloud upon that title was created by the respondent’s groundless claim. Contrary to the contention of the respondent, it was not incumbent upon the executor to bring an action to eliminate a claim against the estate which he believed, and which the courts have found, to be baseless. Cf. Mar ler v. Claunch, 221 Tenn. 693, 430 S.W.2d 452 (1968).

Accordingly, the decision of the Court of Appeals awarding attorney’s fees to counsel for the respondent is reversed, and the case dismissed. Costs will be taxed to the respondent.

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


text:
    James E. ROBERTS, Trustee of Roane County, Tennessee, Appellant, v. STATE BOARD OF EQUALIZATION et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 7, 1977.
    Gerald F. Largen, Kingston, for appellant.
    Everett H. Falk, Deputy Atty. Gen., Brooks McLemore, Jr., Atty. Gen., Nashville, Erma G. Greenwood, Jackson C. Kramer, David L. Oakley, Jr., Kramer, Johnson Rayson, McVeigh & Leake, Knoxville, for appellees.
   COOPER, Chief Justice.

OPINION

James E. Roberts, trustee of Roane County, filed a petition in the Chancery Court of Davidson County to have that court review the action of the State Board of Equalization in ruling on appeals of ten Japanese utilities from (1) back-tax assessments for the year 1974 on enriched uranium owned by the utilities and stored in that part of the Oak Ridge complex located in Roane County, and (2) the assessment on the uranium for the then current year, 1975. On motion of the State Board of Equalization and the Japanese utilities, the chancellor held that Roane County was an indispensable party and allowed petitioner forty days in which to join Roane County as a party petitioner. Subsequently, when Roane County, acting through its quarterly court, resolved not to join in the petition for review, the chancellor dismissed the trustee’s petition for lack of an indispensable party. The question then is: Is Roane County an indispensable party to a petition seeking review of the action of the State Board of Equalization in determining ad valorem tax assessments on property located in Roane County? Or, to put it another way: Can the county trustee, acting independently of the county court, petition for a review of the action of the State Board of Equalization?

It is difficult to determine from the petition and the brief of the appellant whether review of the actions of the State Board of Equalization is being sought under the Uniform Administrative Procedures Act or by common law writ of certiorari. However, under either procedure, review of a final order or judgment of any board of commission functioning under the laws of this state is limited to those “aggrieved” by the decision. See T.C.A. § 4-523 and § 27-901. In our opinion, the trustee is not an “aggrieved” party so as to entitle him, acting alone, to a review of the actions of the State Board of Equalization.

The trustee’s duties are prescribed by statute. T.C.A. § 8-1104. Chief among those duties is the duty to collect all taxes on property. In carrying out this duty, the trustee is authorized to issue citations and to hold hearings for the purpose of back-assessing or reassessing property. T.C.A. §§ 67-1204, 67-1205, 67-1208. The collection of taxes is a ministerial function while the duty to back-assess property takes on the coloration of a judicial action when the trustee is called upon to make a decision on the basis of evidence. Once the back-assessment is made, however, its enforcement is ministerial. See Tennessee Fertilizer v. McFa.ll, 128 Tenn. 645, 163 S.W. 806, 808 (1912), wherein this court pointed out:

The essential judicial feature of the power conferred [upon the trustee under the Act of 1907 (T.C.A. §§ 67-1201 et seq)] was the determination of the value of the property in back-assessment proceedings. That is the only act which involves judicial discretion. Having determined the value of the property, . . . the other duties imposed upon the trustee by the act of 1907 are ministerial or clerical in their nature rather than judicial.

Appeals from back-assessment actions of the trustee are specifically limited by the provisions of T.C.A. § 67-832 to the state, the county, and the party assessed, they being the parties that could be adversely affected by the assessment. In The Redistricting Cases, 111 Tenn. 234, 80 S.W. 750 (1903), this court observed the holding in Maury County v. Lewis County, 31 Tenn. 236, 240 (1851), that;

The county court, or the justices composing that court, represent the civil and political power of the county, its rights and obligations. It is through this medium, therefore, that the county, in its municipal character as a corporation, may act or be acted upon. There is no other court or officer known in its organization that can or should represent it.

And, in Dulaney v. Dunlap, 43 Tenn. 306 (1866), the court held that the county trustee could not bring suit in his own name against the revenue collector of the county for failure or refusal to pay to the trustee tax revenue collected. The court, on noting the existence of a statute declared that “a motion lies in favor of the party aggrieved —State, County, Corporation, or individual; against any tax assessor, revenue collector, or commissioner, for money in their hands officially, and not paid over or accounted for, according to law,” said:

Is the County Trustee a “party aggrieved,” in the sense of the provision of the Statute? We think not. He is the mere fiscal agent of the county, with powers limited by law, which he can not transcend. He can not even call the revenue collector to settlement, but is, himself, bound to settle with, and account to, the Judge or Chairman of the County Court, for all his official conduct. The county is the real party in interest, and the party aggrieved, in cases of official delinquency in the collection of revenue.

In the instant case, the trustee is not an “aggrieved party,” nor does he have statutory authority to question the actions of the State Board of Equalization with respect to assessments on property located in Roane County. The real party in interest, the party that stands to be affected by action of the State Board of Equalization, and the proper party to question the board’s actions with respect to assessments on property in Roane County is Roane County acting through its governing body, the county court. Roane County was not a party to the petition to review, nor did it ratify the action of the trustee in filing the petition, though given time in which to do so. To the contrary, the quarterly court expressly refused to question the accuracy of the assessments set by the State Board of Equalization. It follows, in our opinion, that the chancellor correctly dismissed the trustee’s petition for lack of an indispensable party.

Cases cited by the trustee in support of his contention that he has the right, independent of action by the county court, to petition chancery court for a review of the actions of the State Board of Equalization are inapposite. McKennon v. McFall, et al., 127 Tenn. 393,155 S.W. 158 (1913); Tennessee Fertilizer v. McFall, 128 Tenn. 645, 163 S.W. 806 (1912); Smoky Mountain Land Co. v. Lattimore, Trustee, 119 Tenn. 620, 105 S.W. 1028 (1907), and Hamilton National Bank v. Richardson, Trustee, 42 Tenn.App. 480, 304 S.W.2d 504 (1957), are suits against the trustee to prevent the trustee from carrying out his ministerial function of collecting taxes. They may not properly be read as authority for the proposition that a county trustee may, independently of the county, maintain a petition to review the final action of the State Board of Equalization equalizing back-assessments made by the trustee.

Polk County v. State Board of Equalization, 484 S.W.2d 49 (Tenn.App.1972), also cited by the trustee, stands for the proposition that the taxing authority as well as the taxpayer has a right to seek judicial review of state board actions, not for the proposition that the county trustee, acting independently of the county court, can seek the judicial review.

The decree of the chancellor is affirmed. Costs incident to the appeal are adjudged against James E. Roberts and his surety.

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


author: DROWOTA, Judge.

text:
    STATE of Tennessee, Plaintiff-Appellant, v. Bessie Louise PARKES et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Jan. 31, 1977.
    Certiorari Denied by Supreme Court June 20, 1977.

      Robert J. Ames, Asst. Atty. Gen., George W. Franklin, Nashville, for plaintiff-appellant.
    Boston & Weatherford, Lawrenceburg, for defendants-appellees.
   OPINION

DROWOTA, Judge.

This is an appeal by the State of Tennessee from the jury verdict and judgment in an eminent domain proceeding, in which defendant landowners were awarded $450.00 for the property taken and $11,-200.00 in incidental damages. The State objects to certain testimony introduced at trial by defendants, and asserts that the verdict is not supported by admissible evidence.

On November 4, 1974, the Department of Transportation of the State of Tennessee filed a petition for condemnation in the Circuit Court of Lawrence County. The petition prayed for condemnation of a triangular piece of land located at the southeast corner of a lot which is located at the northwest corner of the intersection of Military Street and Gaines Street in the City of Lawrenceburg. The total area of the property taken is 121 square feet. After notice was served on the several defendants, who are all holders of interests in Parkes Motor Company, which owned the property, an order condemning the property was entered on January 6, 1975. Defendants answered, protesting as inadequate the $415.00 compensation figure set by the State and requesting a jury trial. The trial, held November 25, 1975, resulted in a verdict and judgment awarding defendants a total of $11,650.00.’ The State has appealed.

At trial, the State first showed that the project for which the property was taken involved widening the street by rounding off the corner, as well as constructing curbing along a large part of defendants’ property on each of the two streets. Two entrance ramps were to be provided to defendants' lot. The lot contained a gas station, abandoned at the time of the taking, in this corner portion, as well as two other buildings located farther back from the corner.

James F. Parkes, president of Parkes Motor Co., Inc., and one of the defendants, after noting that the company had conveyed the lot in question since the condemnation date, testified that the best use of the property would be for commercial development, such as an office or bank building. Parkes valued the piece of land taken at $428.50. He then discussed incidental damages to the remainder of the lot, basing his estimate on two elements. First, he noted that if a building were placed on the property after the taking, it would have to be either set in about eight feet from the street on each side or built with a diagonal or other irregularly shaped front in order to avoid encroaching on the corner taken by the State. If a diagonal front were built, the area lost to the building would mean a loss in the rent-producing potential of the property and a corresponding depreciation of its value, estimated at $12,000.00 by Parkes. Parkes then discussed the added cost of constructing a building with a diagonal front on the lot, estimating it at $3,500.00. Thus, Parkes’s testimony was that the taking caused $15,500.00 in incidental damages, which, when added to his figure of $423.50 for value of the land taken, would produce a total award of $15,923.50. He concluded that the property’s original value of $70,300.00 had been reduced by this figure as a result of the taking.

Terry Evans, a real estate broker and appraiser, then testified for defendants. He also thought the best use of the property was as “commercial rental property” in the form of a building of some kind. He valued the property in question, as of the date of taking, at $56,734.00. Due to the necessity of erecting either a square building set in from the street or a building with a diagonal front, he assessed the value of the property remaining after the taking at $42,570.00 for a total loss of $14,164.00, which included $500.00 as value of the land taken. Evans said he used loss of rental value in arriving at his valuation figures.

The State’s valuation evidence consisted of the testimony of Norman Hall, a real estate appraiser who had appraised the property in March of 1974 and updated his appraisal to the time of the taking. He put the value of the property taken at $450.00, and explained that his figure was based an on examination of comparable sales in the area. The only possible damage to the remaining land found by Hall was the expense of relocating the gas pumps and “redesigning the site so it could be put back in operation as a service station if so desired,” which he fixed at $11,200.00. The State then concluded with the testimony of W. S. McCrary, an Exxon marketing representative, who explained that the State had paid Exxon $8,400.00 to remove the service station’s gasoline pumps, which belonged to Exxon, from the property and to repave the ground from which the pumps were removed.

Since the dispute in this case does not involve the $450.00 value placed by the jury on the land taken, our discussion will relate only to incidental damages.

Tennessee Code Annotated § 23-1414 provides for award of incidental damages in eminent domain proceedings. These damages include “those relating to the part of the land remaining to a landowner after a part of his land has been taken,” as well as the expenses he incurs in moving his property, for which the statute expressly provides. Knoxville Housing Authority, Inc. v. Bush, 56 Tenn.App. 464, 470, 408 S.W.2d 407, 410 (1966). Just as fair market value is the standard for measuring the value of property actually taken and for fixing compensation therefor, decline in fair market value is the test of compensation for damage to land remaining after a partial taking. City of Memphis v. Hood, 208 Tenn. 319, 345 S.W.2d 887 (1961). In applying the fair market value standard in general, the jury should consider all uses to which the property might reasonably be put as of the time of the taking. McKinney v. City of Nashville, 102 Tenn. 131, 52 S.W. 781 (1899); Alloway v. City of Nashville, 88 Tenn. 510, 13 S.W. 123 (1890).

Although all uses of the property should be considered in such a case, we agree with the State that many uses for which a landowner might contend are “speculative” and “potential” as to his particular property, and that he should not be permitted to present evidence that strays to a consideration of such unlikely contingencies. See L. Orgel, Valuation Under the Law of Eminent Domain (2nd ed. 1953), § 31. But we do not agree that the testimony of Parkes and Evans in the case at bar was “speculative” in this sense simply because it discussed the possible use of defendants’ property for construction of a building for commercial rental purposes. The type of testimony to be avoided is that which discusses uses that are unfeasible or remote in likelihood or in time, given the circumstances and location of the property. In this case, the record shows that the property is located at a busy intersection which contains businesses built out to the street on other corners. There was no evidence to show that a commercial building on defendants’ property was unfeasible for any reason, such as an overabundance of similar uses in the community. The testimony of Parkes and Evans itself was limited to discussion of a one or two story building, which would be not at all unreasonable at the present time in the area in question. We are thus unable to find that the trial judge was in error in overruling the State’s objection to this testimony as speculative.

A related objection to the testimony of Parkes and Evans concerns the rule that a witness in an eminent domain proceeding will not be allowed to state the value of the property for a specific purpose. See Davidson County Board of Education v. First American National Bank, 202 Tenn. 9, 301 S.W.2d 905 (1957); Alloway v. City of Nashville, 88 Tenn. 510, 13 S.W. 123 (1890); Memphis Housing Authority v. Mid-South Title Co., 59 Tenn.App. 654, 443 S.W.2d 492 (1968). This rule, a corollary of the requirement that all uses be considered in determining value, originally was used to protect against an overemphasis on the use for which the property was being taken, and to prevent the jury from valuing it in terms of its particular importance to the condemnor. Alloway, supra; see L. Orgel, Valuation Under the Law of Eminent Domain (2d ed. 1953), § 30, at 149. In Davidson County, supra, however, the rule was applied to uphold exclusion of a map, prepared by the landowners for use in the eminent domain proceeding, which detailed an imaginary plan for subdividing the property taken. Similarly, in Memphis Housing Authority, supra, it was held error to admit plans which were introduced by the owners of the taken property and which graphically depicted placement of a nine story motel on it. These cases, while stating broadly that testimony of value for a single particular purpose is inadmissible, clearly demonstrate that the concern underlying this rule is to prevent overemphasis of any single use of the property, and especially that overemphasis which results from depicting excessive details of a possible use. A broad prohibition against description and valuation of a particular use, however, may conflict with the widely acknowledged privilege of the witness to explain how he arrived at his value for the property, if he has taken the peculiarities of one particular use into account in making his estimate. Obviously, a balance must be struck. Since the major concern of the Davidson County rule is to prevent overemphasis of a particular use and its value, its effect must be to require excluding evidence of a particular use when it reaches the point of being an unreasonable emphasis on that use and not merely an explanation of the witness’s valuation processes. The testimony of Parkes and Evans did not reach that point in the instant case. They discussed their opinions that the property remaining to defendants had suffered a decrease in value in terms of the lessening of the property’s desirability for commercial rental, a perfectly reasonable use. Their testimony did not include plans or maps of any particular possible project, nor did it contain oral descriptions of any such project. In short, their discussion of the problems of constructing a commercial building on the property that remained after the taking was neither outside the bounds of reasonableness as an explanation of their expert valuation testimony nor an undue overemphasis on value for a particular use, and did not run afoul of Davidson County. We are thus unable to find error on this ground in the trial court’s admission of this testimony.

The State places great emphasis on defendants’ having sold the property in question since the date of condemnation, arguing that it renders defendants’ testimony concerning erection of a commercial building entirely speculative because defendants are no longer able to carry out such a project. This argument misses the point. The issue in this case is the fair market value of the property, and various possible uses and their feasibility come into play not in regard to what benefit defendants might derive from them, but in regard to their effect on the property’s value in general. Defendants, as owners of the property on the condemnation date, are the parties entitled to compensation for the taking (see Federal Land Bank v. Monroe County, 165 Tenn. 364, 54 S.W.2d 716 [1932]); if there was a diminution in value, we must assume that the loss was passed on to defendants in the sale of the property in the form of a lower purchase price. That defendants no longer own the property is irrelevant to the valuation problems presented by this case.

A further objection to the testimony of Parkes and Evans concerns their use of rental value in assessing the value of defendants’ property. While it is clear that fair market value is the value to be determined by the jury in fixing compensation in an eminent domain case, it is also true that there is no absolute prohibition against admitting evidence of rental value, at least where it is presented and interpreted by an expert as a criterion in his assessment of the property’s fair market value. Union Railway Co. v. Hunton, 114 Tenn. 609, 88 S.W. 182 (1905); State v. Southerland, (Judge Todd), Tenn.App., Middle Section, March, 1976. Parkes and Evans are both experienced in appraising real estate. While rental value figured prominently in their discussion of the property’s worth, it does not appear that they used it as the sole test of value rather than as a guide to the property’s worth in the market. It follows that this objection to their testimony is also without merit.

Even if the admission of the testimony of Parkes and Evans were error, we would be compelled to find it harmless, for it is clear that the jury adopted none of it. The verdict was $450.00 for the land taken and $11,200.00 in incidental damages, and these figures are identical to those mentioned by the State’s own expert witness, Norman Hall.

The testimony of Hall and that of another State witness, W. S. McCrary, present the final point to be considered on this appeal. Hall’s testimony was that $11,-200.00 would be the total cost of relocating the gasoline pumps on defendants’ property and of other reworking necessary after the taking to enable the property to go back into operation as a service station. McCrary, a marketing representative for Exxon, which owned the gasoline pumps that were on the property at the time of condemnation, testified that the State had paid Exxon $8,400.00 for the expenses of removing its pumps from the property and paving over the damage done by the removal. It would appear as though the removal of the pumps and the attendant repair for which the State has already paid $8,400.00 would also accomplish part of the job of reworking the property for use as a service station, the total cost of which would be the $11,200.00 figure found by the jury as incidental damages. It is not clear, however, to what extent these two jobs and their costs overlap, or how much more money would be required to restore the property to suitability for a service station once Exxon has completed the work for which it has been paid. Since this line of testimony was entirely the State’s, it was up to the State to clarify it by explaining the relationship of these two elements of cost to one another. In the absence of such clarification, the State cannot possibly have cause for complaint in the jury’s selection as incidental damages of an amount to which its own witness testified.

To conclude, we find that the testimony of Parkes and Evans was not improperly admitted, and that any error in its admission would have been harmless in any case. The jury, having heard the conflicting contentions of both sides as to the property’s uses and value, was properly instructed and returned a verdict firmly grounded on the evidence. Since all evidence was properly admitted and since the verdict is supported by the evidence, both of the State’s assignments of error must be overruled and the judgment below affirmed.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.


text:
    STATE of Texas, Petitioner, v. Frank O’Neal ADDINGTON, Respondent.
    No. B-6597.
    Supreme Court of Texas.
    Oct. 12, 1977.
    Ronald L. Wilson, Dist. Atty., Charles T. Lambright, Asst. Dist. Atty., Galveston, for petitioner.
    Boston & Brown, Martha L. Boston, Austin, for respondent.
   PER CURIAM.

This case involves the proper standard of proof that is required in indefinite commitment cases under the provisions of the Texas Mental Health Code. Frank Addington was committed to the Austin State Hospital for an indefinite period of time after the jury found that he was mentally ill and required hospitalization for his own welfare and protection, as well as for the protection of others. The trial judge instructed the jury that the State’s burden was to prove each special issue by “clear and convincing evidence.” The court of civil appeals reversed and held that the proper standard of proof was “beyond a reasonable doubt.” 546 S.W.2d 105.

The holding in the instant case conflicts with this court’s decision in State v. Turner, 556 S.W.2d 563 (1977). The facts in these two cases are very similar. In both cases, the jury was instructed that the proper standard of proof was that of clear and convincing evidence. The courts of civil appeals reversed the cases because they held that the stricter standard of beyond a reasonable doubt was required. In Turner, this court held that preponderance of the evidence was the proper standard of proof to be used in civil commitment cases. For the reasons expressed in Turner, we hold that it was error for the court of civil appeals in this case to require the State to prove each issue beyond a reasonable doubt. Since the jury found Addington to be mentally ill under a stricter standard than is required, the instruction given does not constitute harmful error.

Pursuant to Texas Rule of Civil Procedure 483, we grant the writ of error and, without hearing oral argument, reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

      . Tex.Rev.Civ.Stat.Ann. art. 5547-1 et seq. (1958).


author: ODOM, Judge.

text:
    Wayne R. MORGAN, Appellant, v. The STATE of Texas, Appellee. Jesse D. SANDERS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55097 to 55108.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Appellants Motion for Rehearing Denied Nov. 23, 1977.

      John Allen Curtis and Howard G. Wilson, Dallas, for appellants.
    Henry Wade, Dist. Atty., Gary W. Love, Richard G. Worthy and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions for violations of the Securities Act, Article 581-29(C), V.A.C.S. Each appellant initially pled not guilty to each count in each indictment. After the first witness testified on behalf of the state, each appellant changed his plea to guilty to count two of each of the indictments, and upon the state’s motion counts one, three and four of each indictment were dismissed. The cases were tried before a jury on the issue of punishment and both appellants filed an application for probation. The jury assessed punishment for each appellant at six years and six months in the Texas Department of Corrections and a fine of $2,750.00 in each case. Probation was not granted.

The sufficiency of the evidence is not challenged and the testimony indicates that the appellants failed to inform investors of interrelations between companies which affected the financial status of such investments, and that no escrow in fact existed for the investors’ money. These acts were in violation of Art. 581-29(C)(3), V.A.C.S., which makes it an offense for any person “In connection with the sale [or] offering for sale . . of . any security or securities . . . [to] omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, . . . ”

Appellants’ first eleven grounds of error assert reversible error was committed when evidence of extraneous offenses was admitted. The challenged evidence consists of the testimony of seven victims of appellants’ scheme other than the six named in the indictments, and of various documents. Denial of a motion in limine on these matters is also challenged. These grounds of error will be considered together.

Appellants argue that “various parties who had purchased alleged securities in the same tracts of land, but who were not named in the indictment, were allowed, over [their] objections, to testify to the details of such purchases . . . [and] that such evidence was inadmissible in that each constituted an extraneous offense.”

In Asay v. State, 456 S.W.2d 903, the Court held, “The State’s right to introduce evidence is not restricted by entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved.” In Beard v. State, 146 Tex.Cr.R. 96,171 S.W.2d 869, it was stated, “[I]f relevant facts are admissible under a plea of not guilty, then we think they are also admissible under a plea of guilty.” The fact that appellants entered pleas of guilty does not control disposition of this issue.

In Shappley v. State, Tex.Cr.App., 520 S.W.2d 766, a conviction for selling securities without having been registered as a dealer or salesman in Texas, the defendant complained of the trial court’s introduction of evidence of extraneous sales of securities. After acknowledging the general rule that an accused is entitled to be tried on the accusation made in the state’s pleading and not for collateral crimes or for being a criminal generally, we further stated that several exceptions have been established. The exceptions relevant in Shappley and in the present case are those of scienter and common plan, scheme or design. As was stated in Shappley, supra, at 771, “[U]nder the fraud counts, the extraneous sales were admissible to show intent or guilty knowledge on the part of the appellant in fraudulently misrepresenting facts concerning the sale of the bonds.” See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. The extraneous offenses were admissible and the first eleven grounds of error are overruled.

In their twelfth and last ground of error, the appellants contend error was committed when the trial court denied their motions to dismiss the indictments because the statute under which they were prosecuted, Art. 581-29(C)(3), supra, is unconstitutionally vague and indefinite. The motions to dismiss the indictments alleged:

“The law upon which such indictment is founded is in violation of the 5th and 14th Amendments to the Constitution of the United States in that such law is vague, indefinite, contradictory and uncertain as to not inform the Defendant what conduct on his part will render him liable to its penalties, to wit .
“(1) Vernon’s Ann.Civ.St., art. 581-29 fails to define or otherwise advise as to the meaning of the term ‘security or securities’ and is vague and indefinite as to what particular instruments are securities.

“(2) Vernon’s Ann.Civ.St., art. 581-29 fails to define, advise or otherwise make known what constitutes an ‘untrue statement of material fact’ or what constitutes an ‘omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.”

Appellants’ contention that “security or securities” is not defined is without merit. Article 581-4, V.A.C.S., includes “investment contract” in the definition of “security.” Count two of each indictment specifically alleges that the security involved is an investment contract. Regardless of what vagueness may be in the phrase “any other instrument commonly known as a security,” the term is not vague as used in appellants’ cases.

We also find the term “material fact” as used in Article 581-29, V.A.C.S., is not unconstitutionally vague. The standard for determining whether a statute is void for vagueness is whether “it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); McMorris v. State, Tex. Cr.App., 516 S.W.2d 927. A statute will not be struck down as unconstitutional merely because its words or phrases are not specially defined. Powell v. State, Tex.Cr.App., 538 S.W.2d 617. In Papachristou v. City of Jacksonville, supra, Mr. Justice Douglas noted that although the law requires fair notice of the offending conduct, “In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed,” 405 U.S. at 162, 92 S.Ct. at 843.

The meaning of “material fact” is clarified by the context in which it is found: the statute prohibited, and appellants pleaded guilty to, an “omi[ssion] to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.” (Emphasis added.) Although “material fact” standing alone might be vague, any such possible vagueness vanishes in the face of the total context. Compare this with Courtemanche v. State, Tex.Cr.App., 507 S.W.2d 545, in which the inherent vagueness of “lewd” was contrasted with its lack of vagueness when used in certain contexts. Also, regarding the issue of what constitutes a material fact, an issue that is not contested here in view of the pleas of guilty, see TSC Industries v. Northway, 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976).

The ground of error is overruled.

The judgments are affirmed.

      . “Art. 581-4. Definitions.
      “The following terms shall, unless the context otherwise indicates, have the following respective meanings:
      “A. The term ‘security’ or ‘securities’ shall include any share, stock, treasury stock, stock certificate under a voting trust agreement, collateral trust certificate, equipment trust certificate, preorganization certificate or receipt, subscription or reorganization certificate, note, bond, debenture, mortgage certificate or other evidence of indebtedness, any form of commercial paper, certificate in or under a profit sharing or participation agreement, certificate or any instrument representing any interest in or under an oil, gas or mining lease, fee or title, or any certificate or instrument representing or secured by an interest in any or all of the capital, property, assets, profits or earnings of any company, investment contract, or any other instrument commonly known as a security, whether similar to those herein referred to or not. Provided, however, that this definition shall not apply to any insurance policy, endowment policy, annuity contract, optional annuity contract, or any contract or agreement in relation to and in consequence of any such policy or contract, issued by an insurance company subject to the supervision or control of the Board of Insurance Commissioners when the form of such policy or contract has been duly filed with the Board as now or hereafter required by law.” (Emphasis added.)