text:
    Dorothy TERRANOVA, Plaintiff-Appellant, v. WESTERN AUTO, a corporation, Defendant-Respondent.
    No. KCD 30424.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Timothy H. Bosler, Liberty, for plaintiff-appellant.
    James W. Benjamin, John R. Loss, Field, Gentry, Benjamin & Robertson, Kansas City, for defendant-respondent.
    Before DIXON, P. J., and TÜRNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Dorothy Terranova brought this action against Western Auto under § 290.140, RSMo 1969, alleging the service letter furnished her did not state the true cause for her discharge. At the conclusion of Dorothy’s evidence presented to a jury, the court sustained Western Auto’s motion for a directed verdict.

On this appeal Dorothy contends her evidence made a submissible case. Affirmed.

Dorothy was employed permanently in 1969 as an office clerk. Part of her duties required her to make payout slips by which customers were given refunds. In 1975 Dorothy’s supervisor and a company official talked with Dorothy about a discrepancy in the amount shown as refunded on the payout slips and the amount the customer said he received. The company had sent letters to the customers to verify the amount received by the customer and in at least two instances the customers stated they had not received the amount entered. Dorothy was allowed to continue working after the conference about this problem, but about two months later she was informed by her immediate superior that she was being fired.

Dorothy requested a service letter under § 290.140 and Western Auto responded. The only portion of that letter in question here stated:

Her discharge was caused by apparent irregularities in cash payout slips prepared by her showing receipt by customers of certain sums of money in cash and the customers’ denials of the receipt of the full amount shown.

Dorothy testified that she handled the payout slips but her only instruction as to procedure was given by the previous employee holding her position.- She admitted a number of slips showed an amount as being refunded with this amount altered and a new amount inserted. She stated she did not have any explanation for this because she did not know the customers by name and could not remember each transaction. She did offer some explanation that customers obtained a refund and later came back for a refund on another returned item and she simply changed the slip instead of making a new one.

Dorothy denied on direct examination that she had improperly taken any money from Western Auto. On cross-examination she stated she did not know of any other reason for her termination except for the problem about the payout slips.

Dorothy contends her denial that she improperly took money constituted substantial evidence from which the jury could infer that the cause of her dismissal stated in the letter is false. A case on all-fours with this case is Williams v. Kansas City Transit, Inc., 339 S.W.2d 792 (Mo.1960). In Williams, transit company inspectors rode the street car and bus operated by Williams and observed him collecting fares without properly depositing them in the fare box. The company wrote him a service letter stating that as a result of investigations, it believed that he had mishandled fares by failing to properly deposit them in the fare box and he had misappropriated the fares belonging to the company. Williams’ evidence consisted of his denial that he had stolen any money. The court held this did not constitute substantial probative evidence that the reason for his termination stated in the letter was false.

In this case Dorothy contends Western Auto was in fact accusing her of stealing money and contends that her denial of any theft constituted substantial evidence. Under the holding in Williams her denial that she stole money does not constitute substantial evidence that the reason stated in the letter is not true. The issue before the jury was not whether Dorothy had stolen any money but was whether the company had stated the true cause of her dismissal in its letter. Dorothy had the burden of proving the negative, i. e. that the reason stated in the letter was not the true reason she was dismissed. Potter v. Milbank Manufacturing Company, 489 S.W.2d 197, 203[1] (Mo.1972).

Dorothy did not offer any evidence to show the reason stated for her dismissal was false. In fact, she testified she knew of no other reason than that stated in the letter. As in Williams, Dorothy failed to produce substantial probative evidence to show the reason stated in the letter for her dismissal was false and the court was correct in sustaining Western Auto’s motion for a directed verdict.

Dorothy attempts to argue for the first time that the reason given in Western Auto’s letter is unclear and vague in violation of the requirements stated in Cumby v. Farmland Industries, Inc., 524 S.W.2d 132 (Mo.App.1975). This ground of relief was not pleaded nor was it mentioned in the evidence or in the motion for new trial, thus, this was not the theory on which Dorothy tried her case. It is beyond question that a ease may not be tried on one theory in the trial court and on a different theory in this court. Contour Chair-Lounge Company v. Laskowitz, 330 S.W.2d 817, 822[1, 2] (Mo.1959).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Chief Judge.

license: Public Domain

text:
    Thurman R. LUCKY and Madeline J. Lucky, Appellants, v. AVON PRODUCTS, INC., Respondent.
    No. KCD 30470.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Austin B. Speers, Kansas City, for appellants; John C. Milholland, Harrisonville, of counsel.
    Steven G. Emerson, Morris, Larson, King, Stamper & Bold, Kansas City, for respondent.
    Before WASSERSTROM, C. J., and WELBORN and BARNES, Special Judges.
   WASSERSTROM, Chief Judge.

Suit by an employee against his employer for personal injuries and by the employee’s wife for loss of consortium. The jury found for the defendant and plaintiffs appeal. Their sole point on appeal relates to the propriety of Instruction No. 5 under which defendant submitted the issue of contributory negligence.

A preliminary matter requires disposition. Defendant has moved to dismiss the appeal on two grounds. First, it points out that plaintiffs’ notice of appeal specified that the appeal was being taken from the circuit court’s order denying their motion for new trial. That order was nonap-pealable, and the appeal should have been taken from the judgment in favor of defendant. Nevertheless, appellants who have made this same mistake in the past have received reluctant indulgence and have not suffered the harsh penalty of dismissal. Empire Gas Corp. v. Randolph, 552 S.W.2d 82 (Mo.App.1977). A similar indulgence will be extended here.

Defendant’s second ground for asking dismissal is that Point Relied Upon I B. was not raised in plaintiffs’ motion for new trial and therefore should not be considered on appeal. This objection becomes moot in light of the fact that we conclude that this case must be reversed because of Point I A., without regard at all to Point I B. Accordingly, defendant’s motion to dismiss is overruled.

Plaintiffs’ Point I A. objects to Instruction No. 5 in that it instructed the jury to find for defendant if it believed that “Plaintiff Thurman R. Lucky failed to keep the truck under control * * *.” The nature of the basic argument between the parties is delineated by the pleadings which are contained in the record. Plaintiffs’ petition alleges that defendant was negligent in improperly loading the trailer being hauled by plaintiff Thurman R. Lucky so that the material within the trailer would shift and cause the trailer to overturn. Defendant’s answer, on the other hand, charges Lucky was negligent in certain specific respects, including driving the truck at an excessive rate of speed and failing to properly brake and properly steer the truck. The parties are in complete agreement that the truck did go out of control and because of that, overturned. The issue between them was why the truck went out of control — whether that happened by reason of the fault of defendant or because of the fault of plaintiff Thurman Lucky.

By submitting a disjunctive charge that the jury should find for defendant if Lucky “failed to keep the truck under control,” the trial court failed to confine the jury’s consideration to the factual issues and gave the jury a roving commission. Such a submission of general negligence has been frequently condemned. McIntyre v. Whited, 440 S.W.2d 449, 451 (Mo.1969); Evans v. Landolt, 389 S.W.2d 15, 18 (Mo.1965); Coit v. Bentz, 348 S.W.2d 941, 945 (Mo.1961); and cases cited in those opinions.

Defendant virtually concedes error in Instruction No. 5 but contends that such error was immaterial because plaintiffs failed to make a submissible case. However, defendant’s effort to argue the facts of the case runs into the insurmountable obstacle that no evidence has been included in the record on appeal. The transcript shows the reason for this omission as follows: “By agreement of counsel the evidence at the trial is eliminated with the exceptions of the Court’s instructions which are the basis of the appeal.” That statement by the court reporter is substantiated by the following stipulation which is contained in the transcript and signed by counsel for all parties:

“This partial Transcript on Appeal is hereby approved. The parties hereby stipulate that the transcript shall include the Amended Petition, Amended Answer, Instructions 1 through 11, Judgment, Plaintiffs’ Motion for New Trial, the Court’s Order overruling said motion, Notice of Appeal, Order Extending Time for filing Transcript, Receipt of Transcript, Approval and Stipulation.”

Absent presentation here of a proper evi-dentiary foundation, defendant’s argument against sufficiency of the evidence fails.

The judgment is reversed and the cause remanded for new trial.

All concur.

      . Instruction No. 5 in full was as follows:
      “Your verdict must be for defendant on the claims of both Thurman R. Lucky and Madeline Lucky for damages whether or not defendant was negligent, if you believe:
      Plaintiff Thurman R. Lucky failed to keep the truck under control while entering the curve at 4400 East 87th Street; or plaintiff Thurman R. Lucky failed to properly brake and properly steer the truck and trailer he was operating after the rear wheels went off the surface of the roadway at or near 4400 East 87th Street; or plaintiff Thurman R. Lucky was driving his truck at an excessive rate of speed under the circumstances then and there existing; and Second, plaintiff Thurman R. Lucky in any one or more of the respects submitted in Paragraph First, was thereby negligent; and Third, said negligence of plaintiff Thurman R. Lucky directly caused or directly contributed to cause any damage plaintiff Thurman R. Lucky may have sustained.
      The term ‘negligent’ or ‘negligence’ as used in this instruction means the failure to use the highest degree of care. The phrase ‘highest degree of care’ means that degree of care that a very careful or prudent person would use under the same or similar circumstances.”


author: TURNAGE, Judge.

text:
    SEGA ENTERPRISES, INC., Respondent, v. Thomas R. BENGIMINIA d/b/a Video-Disco of Mid-America, Appellant, and Video-Disco of Mid-America, Inc., Defendant.
    No. KCD 30471.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Carl E. Laurent, Independence, for appellant.
    James B. Deutsch, Dowell, McNearney, Desselle & Calton, Independence, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Sega Enterprises, Inc., brought suit against Thomas Bengiminia and Video-Disco of Mid-America, Inc., on account. Attached to the petition and made a part thereof was a statement of the account showing the dates of the various transactions, the debits, credits and the balance. The balance due at the time suit was filed was $53,119.29. Bengiminia and Video-Disco failed to file any pleading and the court entered a judgment against Bengiminia for the full amount prayed and also entered judgment against Video-Disco and Bengi-minia, jointly and severally, in the full amount prayed, in effect making a total judgment of $106,238.58. Bengiminia appeals from the judgment.

On this appeal Bengiminia contends there was not sufficient evidence introduced to prove the account; the return of service was improper; and the judgment is for twice the amount due. Affirmed as modified.

When Bengiminia and Video-Disco failed to file any pleading or make any appearance after being served with summons, Sega Enterprises appeared and presented testimony to prove their account. Bengimi-nia later filed a petition for review in the circuit court and the court dismissed that petition. No appeal has been filed from that ruling. Thereafter Bengiminia filed, with leave from this court, a late notice of appeal from the judgment in the total sum of $106,238.58.

Bengiminia first contends the judgment was entered without the presentation of substantial evidence as to the proof of the correctness of each item of the account and there was no evidence presented to show Video-Disco was liable for any part of the account. With reference to the judgment against Video-Disco, it is sufficient to say that corporation has not appealed from the judgment. Thus, there is no error preserved on behalf of Video-Disco as to the judgment against it.

Bengiminia’s contention that insufficient evidence was introduced to support the account against him lacks any merit. There was evidence produced prior to the entry of the judgment showing the account and each item contained therein and evidence that Bengiminia was indebted to Sega in the amount of $53,119.29. Further, Bengiminia’s default in failing to file any answer or make any appearance confessed the petition. Sumpter v. Sieben Construction Company, 492 S.W.2d 150, 153[8—11] (Mo.App.1973). The exception stated in Sumpter to the general rule as to unliqui-dated damages does not apply in this case since there was no claim for unliquidated damages.

Bengiminia next contends the court did not have personal jurisdiction over him because the return of service was not proper. Under Rule 55.27(g)(1)(B) this defense was waived when it was not raised by motion or included in a responsive pleading. In re Marriage of Bradford, 557 S.W.2d 720, 729[17—18] (Mo.App.1977). Not only was there a failure to raise this defense in the petition for review but the petition affirmatively stated that Bengiminia was personally served and counsel admitted as much in the hearing on the petition. Thus, there can be no doubt of a waiver of any question concerning the court’s personal jurisdiction over him.

Bengiminia finally contends the judgment is erroneous because it gave judgment against Bengiminia for $53,119.29 on Count I, and against Video-Disco and Ben-giminia, jointly and severally on Count II, for $53,119.29, or a total judgment against Bengiminia of $106,238.58, when only the amount of $53,119.29 was due. Sega confesses this error.

This cause is remanded with directions to correct the judgment by providing a single judgment in the amount of $53,119.29 against both Bengiminia and Video-Disco. As modified, the judgment is affirmed. Costs are to be divided equally between Sega and Bengiminia.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Larry Ray BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30479.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, C. J., Presiding, WELBORN, Special Judge, HOUSER, Senior Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of relief, after hearing, on proceeding under Rule 27.26.

Larry Ray Brown was convicted, upon a jury trial in the Jackson County Circuit Court, of two counts of narcotics possession. He was sentenced to concurrent five-year terms. On appeal, the judgment was affirmed. State v. Brown, 543 S.W.2d 796 (Mo.App.1976).

Brown filed a motion under Rule 27.26 to set aside the judgment. The sole ground stated in the motion, in any manner supported at the 27.26 hearing, was that he received inadequate assistance of counsel because trial counsel had failed to file a motion for new trial within the required time, with the result that the only assignment of error reviewed by the court on his appeal was considered under the plain error standard of review (Rule 27.20(c)). (Appellant’s motion alleged that this dereliction on the part of trial counsel was intentional. He also alleged that trial counsel “did intentionally sabotage” his case. No evidence to this effect was produced. The trial court found nothing to support the allegations and such conclusion is not contested.)

The reported opinion in Brown shows clearly what happened at the trial level and the court’s approach upon the review. The alleged error lay in the failure of the trial court to give MAI-CR 2.70. That instruction emphasized to the jury that it must consider each count against the defendant separately. Giving of the instruction was mandatory. Rule 20.02(a). This court reviewed the error under State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), which required a finding of “manifest injustice” before error in failing to give a mandatory instruction could produce a reversal under plain error review. Rule 27.20(c). This court found no “manifest injustice” and affirmed the conviction.

The trial court in its findings on the 27.26 motion concluded that, under the facts of his case, the failure to give MAI-CR 2.70 at the trial was not prejudicial and the instruction error was harmless. It concluded that counsel’s failure to file the motion for new trial within time did not deny movant a fair trial.

In this court, appellant’s brief does not address the trial court’s finding on this issue. Instead, counsel point to the statement in Sanders that, had the issue there presented been properly preserved for review and not been considered under the plain error rule, reverse and remand would then have been likely “as a matter of policy.” 541 S.W.2d 533[5].

The instruction not given in Sanders was one covering the defense of excusable accident in a homicide case. That the comment there did not presage a per se rule of reversal for failure to give a mandatory MAI-CR is shown by State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), where failure to give 2.70 had been properly preserved for appellate review. The court, finding no prejudice, refused to reverse the conviction because of the trial court’s error.

In this case, the trial court on the 27.26 hearing followed the process employed in Minor and concluded that failure to give MAI-CR 2.70 was not prejudicial to appellant. That finding has not been shown to have been erroneous.

Prior to the 27.26 hearing, appellant’s counsel replied negatively, when the court asked whether or not he wished to amend the 27.26 motion. Then, although the motion made no reference to such matters, appellant in his testimony asserted that his charge of inadequate assistance of counsel was based in part upon trial counsel’s handling of a motion to suppress evidence. Specifically, he complained of the failure on the part of counsel to subpoena as a witness a police department employee to testify that at the time of appellant’s arrest there was no warrant outstanding for the arrest of a person named Fields. The officer who arrested appellant testified that he originally approached appellant because of his resemblance to the description of Fields whom he had been directed to arrest on a peace disturbance charge. 27.26 counsel in his summation in the trial court added the complaint that trial counsel had not preserved the illegal search issue by objection at the trial or by including it in the motion for new trial.

In this court, appellant complains of the trial court’s failure to make findings on this aspect of his claim. Inasmuch as the motion might have been considered amended according to the proof, the court could have addressed this issue specifically. However, the court’s view is clear from his statement to 27.26 counsel in the course of his argument that “the state’s evidence indicated no prohibited search and seizure whatever, unless it were the contention that for some reason, the initial inquiry asking this defendant for his identity was improper.”

In his appeal, appellant offers nothing to demonstrate that a valid search and seizure question existed in the case. He here advances no basis for arguing that the motion to suppress had merit and that the trial court’s ruling on it should have been preserved for appellate review. He does suggest that the production of evidence of the nonexistence of the Fields warrant might have so impeached the testimony of the arresting officer that the trial court would have disbelieved that officer’s testimony about the circumstances of the arrest. However, he offered no evidence to show that the claimed proof of the nonexistence of the Fields warrant was in fact available. Only the offers of proof at the original trial were presented.

No demonstration has here been made that the court’s view that there was no prohibited search and seizure in this case was clearly erroneous. Absent a valid issue, counsel cannot be charged with inadequate assistance for failing to preserve the issue. Tollison v. State, 556 S.W.2d 455, 458[7] (Mo.App.1977).

Judgment affirmed.

All concur.


text:
    Michael FROST, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30550.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.
    James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Hope E. Thur-rott, Special Asst. Atty. Gen., Kansas City, for respondent.
    Before WASSERSTROM, C. J., Presiding, WELBORN and MURPHY, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of relief, without hearing, under Rule 27.26.

On January 7, 1976, Michael Frost entered a plea of guilty to a charge of sale of a controlled substance (heroin) and was sentenced by the Jackson County Circuit Court to eight years’ imprisonment. A second count for a similar offense was dismissed.

On February 16, 1977, Frost filed, pro se, a motion under Rule 27.26 to set aside his conviction, alleging that his counsel failed to investigate his case properly, that counsel promised him a bench probation and dismissal of the second count in return for a guilty plea, that the prosecutor threatened him with 20 years’ imprisonment and promised him “bench probation,” that he was under the influence of drugs at the time he entered his guilty plea, that he was denied effective assistance of counsel “because he could not produce any more money for the said counsel,” and that counsel ordered him to answer the court’s questions affirmatively at the plea proceedings so that the plea would be accepted.

On February 17, 1977, the sentencing court entered an order, denying the motion on the grounds that the files and records conclusively showed movant was not entitled to relief.

Movant filed a motion for rehearing which was overruled March 4, 1977. The order then entered appointed the public defender to represent movant on appeal from denial of the 27.26 motion.

On August 15, 1977, Frost filed a “Petition for Change of Counsel” in which he stated that, although he had tried to get in touch with the public defender regarding his appeal, the public defender had not answered his letters. The “petition” requested the court to relieve the public defender and appoint another attorney to assist on the appeal. The motion was overruled August 16, 1977.

On July 5, 1978, Frost filed a second pro se 27.26 motion, complaining of the failure of the public defender to assist on appeal from the earlier rejection of his motion. He incorporated his prior motion by reference and added the allegation that counsel had him lie in response to the court’s questions regarding deals, threats or promises as inducing the guilty plea.

On August 23, 1978, the court denied the motion, reciting that the record, file and transcript revealed that movant was not entitled to relief.

On October 6, 1978, Frost filed a motion for appointment of counsel on appeal. Counsel was appointed. He sought and obtained an order of this court to permit filing of appeal out of time and this appeal followed.

In this court, appellant first contends that the trial court erred in summarily overruling his motion “ * * * for the reason that the movant alleges inadequate assistance of counsel at the plea and failure of counsel at the plea to investigate the matter, * *

Insofar as appellant’s second motion is concerned, these matters are contained therein only by incorporation by reference of his first motion. However, the determination of these matters adverse to appellant on the first motion was not appealed from. The judgment on the first motion became final and is res judicata of the matters therein alleged. Hamilton v. State, 548 S.W.2d 267 (Mo.App.1977). Therefore, the trial court did not err in summarily overruling the motion insofar as such allegations are concerned. Haynes v. State, 552 S.W.2d 284, 285[1] (Mo.App.1977).

Insofar as the second motion asserted the failure of the public defender to assist on the appeal from the first motion, Rule 27.26 may not be employed as a procedure to attack the result of a prior 27.26 proceeding. McCormick v. State, 502 S.W.2d 324, 326[2, 3] (Mo.1973); Haynes. Therefore, the allegation in the second motion in this regard did not require appointment of counsel and a hearing on that motion. The trial court did not err in summarily rejecting this ground of relief.

Judgment affirmed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    HUB STATE BANK, Appellant, v. John WYATT and Patricia Wyatt, Respondents.
    No. WD 30697.
    Missouri Court of Appeals, Western District.
    Oct. 29, 1979.

      Carl E. Laurent, Independence, for appellant.
    Robert L. Shirkey, Kansas City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   SHANGLER, Presiding Judge.

This appeal is by the Hub State Bank from an order to set aside a default judgment against the wife Wyatt taken on a promissory note against both Wyatts, husband and wife.

The subject matter of the litigation, the promissory note, was executed by the husband and ostensibly by the wife. The signature of the wife was for an unlimited guaranty of the obligation. The note was not paid as due and the Bank sued for collection. The petition went without answer and in July, 1977, a judgment by default was entered against the Wyatts. No appeal was taken.

In December, 1978, some seventeen months after judgment, the wife Wyatt brought a motion directly in that proceeding to vacate and set aside the default as to herself on the ground that the accommodation signature on the promissory note guaranty was only a simulation and not truly hers.

At the trial, the wife gave evidence that she did not sign the note, received none of the proceeds of the loan, and was unaware of the transaction until her earnings were garnished on execution of the judgment. The husband gave evidence that he forged the signature of the wife on the loan document and then accepted service of summons and suit papers on her behalf as well as his own, but without disclosure to her. On this proof, the court vacated the default judgment against wife Wyatt.

The Hub Bank contends that the judgment against the Wyatts, final and without appeal, was beyond the power of a court to alter or vacate. As a matter of practice, a court lacks authority to disturb a final judgment after the lapse of. thirty days from rendition, other than as invested by statute or common law procedures. The petition for review [Rules 74.05 et seq.] allows a final default judgment to be set aside for good cause within three years after rendition by a defendant not personally summoned to the action. The nunc pro tunc common law remedy allows a court to continue jurisdiction to correct its record any time after rendition of judgment, but relates only to a misprision of the clerk and not of the court. [See cases cited: Comment, Procedure — Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 282 (1963)]. Another common law remedy, codified by statute and promulgated by Rule 74.32, allows a judgment to be set aside after rendition for irregularity on the face of the record or proceedings. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 136[3-8] (banc 1952). The common law writ of error coram nobis corrects an error of fact, extrinsic to the merits of the adjudication but related to jurisdiction, and unknown to the court at rendition of judgment. Edson v. Fahy, 330 S.W.2d 854, 858[2] (Mo.1960). Also, equity will relieve against a judgment for accident and mistake or fraud in the procurement. [Fadler v. Gabbert, 333 Mo. 851, 63 S.W.2d 121, 129[12] (1933)] but only on further proof that the movant was prevented thereby from a meritorious defense. Patterson v. Fitzgibbon Discount Corp., 339 S.W.2d 301, 306[4-7] (Mo.App.1960).

It is at once evident that the cause of action undertaken by the proof invokes neither Rule 74.05 [since substitute personal service was presumptively made upon wife Wyatt by service upon the husband [Rule 54.13]], nor correction of a record by an order nunc pro tunc, nor — since, on the face, service of summons and the other proceedings were formally correct — a petition for review of judgment for irregularity [Rule 74.32].

Hub State Bank contends that the order to vacate the judgment on the promissory note as to wife Wyatt was in the nature of a writ of error coram nobis, an improvident remedy because there was no proof that the original judgment rested on an error of fact, extrinsic to the merits, which resulted in a failure of jurisdiction. We are not ready to agree that the ostensible correctness of a return which shows substituted personal service upon a defendant by suit papers left at the dwelling house with a person of the family over the age of fifteen years [Rule 54.13(a)(1)] may not be impugned as a matter of fact by evidence that the family member [also a defendant in the suit] not only fabricated the obligation upon which suit proceeds but also never intended to apprise the person summoned of the pendency of the action. In such case, the contrivance by a defendant not to notify the codefendant co-obligor overcomes as a matter of fact the legal presumption of notice Rule 54.13(a)(1) imports. See, for instance, State ex rel. Hudson v. Heinrich, 14 Mo.App. 146 (1883); Craig v. Smith, 65 Mo. 536 (1877). In such case, also, the error affects a fact which, if known to the court of rendition, would have deprived the tribunal of the power to bind the defendant to a valid personal judgment. Edson v. Fahy, supra, 1. c. 858; Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, 676 (1908).

The order of the trial court to set aside the judgment for Hub State Bank on the promissory note as against the wife Wyatt, however, rests on a different ground: that the evidence proved her equity to be relieved from a fraud in the inception of the judgment. The evidence was clear and convincing that the pendency of the suit was concealed from wife Wyatt by her codefendant husband and that this trumpery prevented her from assertion of the defense [admitted by the husband] that her signature to the promissory obligation was a forgery. Fadler v. Gabbert, 1. c. 129, supra; Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, 192[6-8] (1949). A judgment procured by a fraud to trick an adversary out of a defense or conceal the pendency of an action will be relieved by equity. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189, 192 (Mo.App. 1961).

The judgment is affirmed.

All concur.


author: BROCK, Chief Justice.

text:
    Samuel Austin TOTHEROW, Plaintiff-Appellee, v. PENN DIXIE INDUSTRIES, INC., Defendant-Appellant.
    Supreme Court of Tennessee.
    Oct. 29, 1979.
    Rehearing Denied Nov. 26, 1979.
    Thomas W. Graham, Kelly, Leiderman, Cameron, Kelly & Graham, Jasper, for plaintiff-appellee.
    L. Hale Hamilton, Spears, Moore, Reb-inan & Williams, Chattanooga, for defend-an1>appellant.
   OPINION

BROCK, Chief Justice.

In this workmen’s compensation case the defendant, Penn-Dixie Cement Industries, Inc., appeals from a decision in favor of the plaintiff, Samuel Austin Totherow, who was awarded permanent total disability benefits. The defendant contends that there is no material evidence in the record to support the finding of the Chancellor that the plaintiff’s lung condition is an occupational disease compensable under T.C.A., § 50-1101. Supporting its contention the defendant asserts the following propositions: (1) The plaintiff’s condition did not have its origin in a risk connected with the employment which flowed from that source as a natural consequence; (2) the opinions and conclusions of the plaintiff’s medical expert were not supported by pathological findings and medical knowledge; and (3) the plaintiff’s condition is not so closely related to one of the named occupational diseases that it should be considered occupational.

The facts leading up to this suit are not in dispute. In February of 1968 the plaintiff went to work in the defendant’s cement manufacturing plant where he worked regularly until August 18,1975. On that date, Mr. Totherow became ill on the job and left work early to see his family physician who advised him to stay off work for a while. In September of 1975 the plaintiff consulted a thoracic surgeon, Dr. Spires K. Whit-taker, who discovered a tumor in the upper lobe of his right lung; a pneumonectomy was subsequently performed. Dr. Whittaker’s final diagnosis was anoplastic carcinoma of the right lung and severe pulmonary emphysema. All of the medical experts who testified in this case concurred in Dr. Whittaker’s diagnosis.

The proof revealed that Mr. Totherow was forty-two years of age when his illness was discovered and had smoked approximately a pack of cigarettes per day for 25 years.

The plaintiff filed a complaint on December 12, 1975, asserting that he was “permanently disabled from any type of labor as a result of the disease silicosis, emphysema and pulmonary fibrosis, all akin to silicosis, which condition is traceable to his long employment in the dusty atmosphere in defendant’s plant.” Proof was introduced that the burner floor where the plaintiff worked for six and one-half years was so dusty that it required sweeping several times a day. A study in March of 1972 also established that 50% of the dust emitted from an adjacent smoke stack was of particulate size ten microns or less. A medical expert for the defendant testified by deposition that dust particles of 10 microns or less can be breathed into the upper respiratory pathway and that particles of three microns or less can reach the lower pulmonary airways. The March, 1972, study also revealed that the cement mixture processed at the plant contains 2 to 3% sand. Silica, which is another name for silicon dioxide, is the chief constituent of sand.

Dr. Whittaker testified at trial that he was of the opinion that the plaintiff’s condition developed from working in a highly dusty atmosphere. He stated that the plaintiff’s cigarette smoking made him more subject to the condition but that his lung damage was greater because of the dust. The doctor concluded that cigarette smoking “might have brought it on ten or fifteen years later, but I think that the cement plus the cigarettes brought it on at forty-two years of age.”

Medical testimony on behalf of the defendant asserted that the plaintiff’s condition was mostly attributable to cigarette smoking. The defendant’s witnesses based their medical opinions on x-rays, hospital records, and a specimen from the removed right lung. Dr. Whittaker, however, was the only physician to physically examine and treat the plaintiff.

In a resolution of this case our inquiry is, of course, limited to a determination of whether there was material evidence to support the Chancellor’s finding that the plaintiff suffered permanent total disability from an occupational disease. We conclude that there is material evidence to support such a finding and we, therefore, affirm his decree.

I

The defendant first asserts that there is no medical evidence to support the finding that the plaintiff’s condition “had its origin in a risk connected with the employment and . . flowed from that source as a natural consequence.” We disagree. The highly dusty atmosphere of the cement plant is well documented in the record. Moreover, Dr. Whittaker testified that in his medical opinion this dusty condition caused the plaintiff’s emphysema. Even one of the defendant’s experts did not “rule out” the possibility that the plaintiff’s exposure to dust contributed to his emphysema.

We note that the plaintiff does not contend that cement dust directly causes carcinoma. However, both Dr. Whittaker and one of the defendant’s experts stated that emphysematous lungs are more likely to become cancerous. Upon cross-examination Dr. Whittaker also made the following response when questioned whether it was more likely that the plaintiff’s cancer and emphysema were related to his cigarette smoking:

“He had two agents that brought on his cancer and his emphysema. I think that the cement was the more important agent. Both agents were a factor, but the more important was the cement dust, the dust.”

We regard the foregoing evidence as sufficiently material to support a finding that the plaintiff’s condition originated with and flowed from his employment as a natural consequence.

II

The defendant also argues that Dr. Whittaker’s opinions and conclusions were not supported by pathological findings and medical knowledge. Again we do not agree. Dr. Whittaker has been a thoracic surgeon for forty years and has performed over five thousand lung operations. He was also the only physician to testify in this case who examined and treated the plaintiff. In considering the credibility of expert medical testimony a doctor’s background and his personal exposure to a patient’s condition are, of course, significant factors. Moreover, contrary to the defendant’s position, Dr. Whittaker made reference to three medical writings which at least in part support his conclusion that exposure to high levels of cement dust can cause emphysema and eventually result in carcinoma.

III

The defendant finally asserts that there is no material evidence to support the finding that the plaintiff suffers from an occupational disease as defined in T.C.A., § 50-1101. Under subsection 3 of that provision, silicosis is expressly listed as an occupational disease. Defendant asserts by way of its medical expert on pathology that no evidence of silicosis was found in the specimen of the plaintiff’s right lung. This conclusion was in no way rebutted by the plaintiff’s medical proof. However, the Chancellor agreed with the plaintiff’s contention that his condition is so closely related to silicosis that it should be considered occupational.

In American Insurance Company v. Ison, 519 S.W.2d 778 (Tenn.1975), this Court established the following criteria for determining whether a disease should be considered occupational under the statute:

“[I]f the alleged occupational disease is not one of those named in T.C.A., Section 50-1101, it must be established by medical or other appropriate expert witnesses that it is so ‘closely related’ to one of the named occupational diseases that it too, should be considered ‘occupational.’ By ‘closely related’ we mean (1) that the disease produces pathological effects in the employee which are substantially the same as those resulting from one of the named occupational diseases and (2) the disease in question is caused by the particular hazards of the employment which are known to also cause one of the named occupational diseases.”

In the case before us, Dr. Whittaker testified that the pathological effects of the plaintiff’s severe emphysema were the same as the effects of silicosis. The first part of the Ison guidelines is thereby satisfied.

However, we now must consider the more difficult question of whether the breathing of cement dust is “known to also cause” silicosis. We have already held there is material proof that the plaintiff’s condition was caused by the dusty atmosphere of the plant. We have also noted that the cement mixture which is processed at the plant is made up at least in part of a silicon based material. While there does not appear to be any direct testimony from Dr. Whittaker stating that he was of the opinion that cement dust is known to cause silicosis, we think it is implicit in his conclusions that the inhalation of silicon based material can eventually cause silicosis. We, therefore conclude that this case also comes within the second guideline set forth in Ison.

For the foregoing reasons, we concur in the finding that the plaintiff’s lung condition is a compensable occupational disease and affirm the Chancellor’s decree. Costs of this appeal are adjudged against the defendant.

FONES, HENRY and HARBISON, JJ., and TODD, Special Justice, concur.

      . When the present claim arose only certain listed occupational diseases were covered by this provision of the Tennessee Workmen’s Compensation Act. In 1977 an amendment extended compensation to diseases of the heart, lung and hypertension arising out of and in the course of all types of employment. See T.C.A., § 50-1001 (Supp.1978); Allied Chemical Corp. v. Wells, 578 S.W.2d 369, 370 at n. 1 (Tenn. 1979).

      . In reaching this conclusion, this writer has not abandoned the position taken in the dissent in Martin Brothers Container and Timber v. Lynch, 551 S.W.2d 687, 690 (Tenn.1977). The case at bar is distinguishable from Lynch for the simple reason that cement dust contains a silicon based material whereas sawdust, the emphysema causing agent at issue in Lynch, does not.


author: EWELL, Judge.

text:
    YEARWOOD AND JOHNSON ARCHITECTS, INC., Plaintiff-Appellee, v. Brown LANGFORD et al., Composing the Gibson County Board of Education, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    June 21, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.

      Hal Holmes, Trenton, for defendants-appellants.
    B. G. Marks, McMinnville, for plaintiff-appellee.
   EWELL, Judge.

Yearwood and Johnson Architects, Inc., sued Gibson County Board of Education on a contract dated April 9, 1969, for the sum of $95,627.00 allegedly due and owing under said contract. The case was heard by the Chancellor who entered judgment for the plaintiff in the amount sued for, and the defendant appealed.

In 1969 the State Department of Education found some deficiencies in the Gibson County school system, and the Gibson County Board of Education in an effort to reduce the deficiencies contemplated a building program. After conducting interviews with a number of architectural firms the Board employed Yearwood and Johnson Architects, Inc., of Nashville, Tennessee. The parties executed an eight page written contract entitled “Standard Form Agreement Between Owner and Architect on a Basis of a Percentage of Construction Costs” drafted by Yearwood and Johnson with some additions and/or modifications suggested by the Board. The portions of the contract material to this litigation are as follows:

made this the 9th day of April in the year of Nineteen Hundred and sixty-nine

BETWEEN

Gibson County Board of Education

the Owner, and

Yearwood and Johnson, Architects, Inc.

the Architect.

It is the intention of the Owner to build a school building or buildings; and to assist the Owner in selection and bidding of furniture. The furniture shall be selected by the architect upon the Owner’s request only.

hereinafter referred to as the Project

The Owner and the Architect agree as set forth below.

I. THE ARCHITECT shall provide professional services for the Project in accordance with the Terms and Conditions of this Agreement.

a. POR THE ARCHITECT’S BASIC SERVICES, as described in Paragraph 1.1, a Basic Fee computed at the following percentages of the Construction Cost, as defined in Article 3, for portions of the Project to be awarded under

A Single Stipulated Sum contract 6% of the first one million dollars of each project and 5% of the cost of each project exceeding one million dollars.

Example: Project #1: Construction Cost $1,500,000.00 Architects Fee 6% of $1,000,000.00 = $60,000.00 5% of 500,000.00 = 25,000.00 total $85,000.00

Project #2: Construction Cost $500,000.00 Architects Fee 6% of 500,000.00 = 30,000.00

Architect Fee for:

Project #1 Project #2 85,000.00 30,000.00

Total Fee $115,000.00

ARTICLE 3

CONSTRUCTION COST

3.1 Construction Cost to be used as a basis for determining the Architect’s Fee for all Work designed or specified by the Architect, including labor, materials, equipment and furnishings, shall be determined as follows, with precedence in the order listed:

3.1.1 For completed construction, the total cost of all such Work;

3.1.2 For Work not constructed, the lowest bona fide bid received from a qualified bidder for any or all of such work; or

3.1.3 For work for which bids are not received, (1) the latest Detailed Cost Estimate; or (2) the Architect’s latest Statement of Probable Construction Cost.

3.2 Construction Cost does not include the fees of the Architect and consultants, the cost of the land, rights-of-way, or other costs which are the responsibility of the Owner, as provided in Paragraphs 2.3 through 2.6 inclusive.

ARTICLE 4 (deleted)

ARTICLE 5 (deleted)

ARTICLE 6

PAYMENTS TO THE ARCHITECT

6.1 Payments on account of the Architect’s Basic Services shall be made as follows:

6.1.1 (deleted)

6.1.2 Subsequent payments shall be made monthly in proportion to services performed to increase the compensation for Basic Services to the following percentages of the Basic Fee at the completion of each phase of the Work:

Schematic Design Phase.15%

Design Development Phase .35%

Construction Documents Phase .75%

Bidding or Negotiations.80%

Construction Phase.100%

6.2 (deleted)

6.3No deduction shall be made from the Architect’s compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors.

6.4 (deleted)

ARTICLE 7 (deleted)

ARTICLE 8

TERMINATION OF AGREEMENT

This Agreement may be terminated by either party upon seven days’ written notice should the other party fail substantially to perform in accordance with its terms through no fault of the other. In the event of termination due to the fault of others than the Architect, the Architect shall be paid his compensation for services performed to termination date.

Contingency Clause:

It is agreed by both parties of this contract that the Architect shall not be paid for his services if the money for the project is not appropriated. It is further agreed that the working drawings for this project will not be made until all money is appropriated or the Architect is paid for his preliminary design. When the money is appropriated, this condition shall be canceled by a letter to the Architect. It shall be understood that this Architect shall remain the architect of this project until it is completed, or that he be compensated in accordance with this contract for the work done.

Yearwood and Johnson working with the Board first approached the matter contemplating a single project consisting of the construction of a 1200 student school housing grades ten through twelve. After substantial public opposition developed to a single consolidated school, further consideration was given to dual projects including a 700 student school and a 500 student school. Finally, Yearwood and Johnson, upon instructions from the Board, performed further work contemplating an 800 student and a 600 student school. This last alternative was approved by the Board and recommended to the Quarterly County Court of Gibson County for funding. In October of 1970 the County Court rejected the proposal of the Board and declined to provide funding.

There were no substantial developments from the fall of 1970 until 1976. During this time there were regular, periodic contacts between representatives of Yearwood and Johnson and representatives of the Board, but the Board did not call upon Yearwood and Johnson to perform any services in addition to those rendered between April of 1969 and October of 1970. By 1976 the State Department of Education was applying substantial pressure upon the Gibson County Board of Education to take some positive action toward remedying the deficiencies in the school system. Ultimately the inaction of the Board resulted in state funds being temporarily cut off, and the Board under this pressure decided to construct a new consolidated high school on property adjacent to the existing vocational-technical center. Without further consultation with or notice to Yearwood and Johnson, the Board hired the architectural firm of Thomas, Ross, Stanfill and Associates, Inc., of Jackson, Tennessee, and entered into a written contract with that firm dated December 1,1976. No explanation is given for the action of the Board in changing architectural firms, and there is no suggestion that the services of Yearwood and Johnson had not been perfectly satisfactory.

The Board working with the new architectural firm ultimately secured funding through the Quarterly County Court of Gibson County for the construction of an 800 student high school to be constructed adjacent to the vocational-technical center. This location was approximately halfway between the two sites contemplated for the construction of the 800 student high school and the 600 student high school in 1970.

Upon learning of the employment by the Board of a new architectural firm, Year-wood and Johnson met with the Board and insisted upon payment under the terms of its contract. It is uncontroverted that Yearwood and Johnson had performed substantial services through the “Design Development Phase” of the dual projects contemplated in 1969 and 1970. It is also un-controverted that Yearwood and Johnson had received no compensation for these services. The Board insisted that under the contingency clause of the contract all obligations to Yearwood and Johnson had terminated when the Quarterly County Court declined to fund the proposed projects in 1970. Yearwood and Johnson insisted that under that clause it had been employed to see the project to a conclusion unless compensated for the work done as provided under the contract. The Board insisted that the 1976 project was a new and different project unrelated to the 1969-1970 project; and Yearwood and Johnson insisted that the 1976 project was no more than a continuation of the project originally contemplated and begun in 1969.

The Board declined to pay and Yearwood and Johnson filed suit. The Chancellor accepted the theory of Yearwood and Johnson both as to liability and damages, awarding judgment in the amount sued for.

The reasoning of the plaintiff and the Trial Court with respect to damages was based upon the resolution presented to and rejected by the Quarterly County Court of Gibson County in October of 1970. The resolution called for the appropriation of $4,975,643.94 to fund the construction of both an 800 student high school and a 600 student high school. These figures were based upon two separate documents dated May 12, 1970, prepared by Yearwood and Johnson, entitled “Preliminary Statement of Probable Construction Cost”, one of which related to the 600 student high school and the other to the 800 student high school. Under the contract the total compensation payable to Yearwood and Johnson would have been 6% of the first $1,000,-000.00 of the construction costs of each project and 5% of all over $1,000,000.00 of the construction costs of each project as defined under Article 3 of the contract. Since neither of the projects were constructed and bids were not received, the construction costs were based upon the latest statement of probable construction costs as provided in Article 3.1.3(2) of the contract. Also, since the services of the architect did not extend beyond the Design Development Phase, the compensation awarded was 35% of the total compensation as provided in Article 6.1.2 of the contract.

On appeal the Board insisted that the Trial Court erred in entering judgment for the plaintiff because:

(1) Any construction of the contract which will support a judgment renders the contract either void ab initio or unenforceable.
(2) There is no competent or material evidence to support the judgment; and the evidence preponderates against the judgment of the trial court.
(3) Plaintiff’s claim is barred by the six year statute of limitations set forth in T.C.A. 28-309.
(4) Judgment in the amount of $95,627.00 was excessive under the formula provided in the contract; and that under said formula plaintiff’s recovery could have been no more than $36,750.00.

Pursuant to T.C.A. 27-303, all cases tried in a court of record without the intervention of a jury and which come to this Court are heard de novo upon the record of the Trial Court, accompanied by a presumption of the correctness of the judgment or decree of the Trial Court, unless a preponderance of the evidence is otherwise. Edwards v. Edwards, 501 S.W.2d 283 (Tenn.App.1973); Davis, v. Bank of Illinois, 561 S.W.2d 144 (Tenn.1978); Pettyjohn v. Brown Boveri Corporation, 63 Tenn.App. 546, 476 S.W.2d 268 (1971); Tipton County Board of Education v. Dennis, 561 S.W.2d 148 (Tenn.1978).

In the second assignment of error the Board insists that the evidence preponderates against the judgment of the Trial Court. We have carefully reviewed all the evidence in the case and find that, except as hereinafter noted with respect to damages, the evidence strongly preponderates in favor of the judgment of the Trial Court. The relevant terms of the contract are clear and unambiguous, and the material facts in the case are undisputed. When a contract is plain and unambiguous it is the Court’s function to interpret it as written, according to its plain terms. Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955).

Under the contingency clause of the contract, which clause was actually suggested and insisted upon by the Board, the Board contracted to retain Yearwood and Johnson as architects until the project was completed, or, in the alternative, to compensate Yearwood and Johnson in accordance with the contract for the work done until the time of its dismissal. In the same clause Yearwood and Johnson agreed that it would not be paid for its services if the money for the project was not appropriated. The record clearly shows that the 1976 project ultimately funded by the County Court was one and the same as that begun in 1969. An 800 student high school was one of the two schools planned for by Year-wood and Johnson at the direction of the Board but which the County Court declined to approve; and an 800 student high school was ultimately approved by the County Court although in a different location. We find that the Trial Court did not err in holding that the Board was liable to Year-wood and Johnson for compensation as provided by the contract. Therefore, the second assignment of error is overruled.

In the first assignment the Board insists that any construction of the contract which would support a judgment renders the contract either void ab initio or unenforceable. The statutes and cases cited by the attorney for the Board in support of this assignment are not applicable to the facts of this case and do not constitute authority for the propositions stated in the assignment. We consider it unnecessary to discuss each of the several statutes and cases which are ably briefed and distinguished by the attorney for Yearwood and Johnson in his Reply Brief. The contract was approved by the Gibson County Board of Education as reflected in its minutes and was thereafter executed by seven members of the Board. No valid reason is advanced as to why the contract would be void ab initio. The Board voluntarily and properly entered into the contract and thereafter accepted substantial services performed by Yearwood and Johnson pursuant thereto. We find that the construction given to the contract by the Trial Court as to liability of the Board was fair and reasonable as well as consistent with the language and obvious intent of the parties. See Oman Construction Co. v. Tennessee Central Ry. Co., 212 Tenn. 556, 370 S.W.2d 563 (1963). The governing body of Gibson County was not a party defendant in this litigation, and, therefore, the enforceability of the contract against that body was not litigated and determined below. Accordingly, we will not address that issue. The first assignment of error is overruled.

In its answer below the Board pled T.C.A. 28-309 as a bar to the recovery of Yearwood and Johnson in that this suit was filed more than six years after the services under the contract were completed; and the Board continues to press this defense on appeal. T.C.A. 28-309 provides that the action must be commenced within six years after the cause of action accrued. Under the terms of the contract the cause of action could not have accrued prior to the funding of the project since the contingency clause specifically provided that Yearwood and Johnson would not be paid for its services if the money was not appropriated. Suit was filed well within the statutory period. Therefore, the third assignment of error is overruled.

In the fourth assignment of error the Board insists that the amount of recovery awarded by the Trial Court was excessive, and we find that this assignment has merit although we do not adopt the formula urged by the Board. The work performed by Yearwood and Johnson was in contemplation of two projects, namely, (1) a 600 student high school and (2) an 800 student high school. The County Court ultimately funded the 800 student high school but has not funded the 600 student high school. Under the contingency clause Yearwood and Johnson is not entitled to compensation for services in connection with a project for which money is not appropriated. It follows that the Trial Court erred in awarding compensation based upon the construction costs of both a 600 student high school and an 800 student high school.

Trial exhibit number 32 introduced by the plaintiff through the testimony of Ed Jordan Johnson of Yearwood and Johnson reflects that the probable construction cost of the 800 student high school, was $3,032,-210.60. Under the contract the total compensation to which Yearwood and Johnson would be entitled for the completed project would be 6% of the first one million dollars and 5% of the balance of $2,032,210.60. Therefore, the total allowable compensation for this project under the clear terms of the contract would be $161,610.53. Since the work done by Yearwood and Johnson extended through the Design Development Phase, under Article 6.1.2 it would be entitled to 35% of the total compensation or $56,563.69. We find and hold that the Chancellor erred in awarding to Yearwood and Johnson the sum of $95,627.00 based upon both projects when the maximum to which Yearwood and Johnson would be entitled under the terms of the contract and the proof in this record would be $56,563.69. To this extent the fourth assignment of error is sustained.

Accordingly, the judgment of the Trial Court will be modified so as to award to Yearwood and Johnson judgment in the amount of $56,563.69 against the Board; and the costs on appeal will be assessed equally against the appellant and the appel-lee; and the case is remanded to the Chancery Court of Gibson County at Trenton for the enforcement of the judgment of this Court.

NEARN and SUMMERS, JJ., concur.


author: DAUGHTREY, Judge. BYERS, Judge,

text:
    Paul K. DYKES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 12, 1979.
    Permission to Appeal Denied by Supreme Court Sept. 24, 1979.

      B. C. Mclnturff, Kingsport, Oían G. Haynes, Johnson City, for appellant.
    William M. Leech, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, William R. Mooney, Asst. Dist. Atty. Gen., Johnson City, Robert Cupp, Asst. Atty. Gen., Johnson City, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Paul K. Dykes, was convicted of three counts of concealing stolen property over the value of $100.00, involving a stolen automobile ring operating out of a used car lot located in Johnson City, Tennessee. Dykes was acquitted on a fourth indictment. The jury assessed sentences of four to eight years on each count; the trial judge ordered two of these sentences to be served concurrently with each other and with a related federal sentence Dykes was serving at the time of his state conviction, but consecutively to the third sentence.

On appeal, the defendant raises multiple assignments of error related to (1) the trial court’s refusal to dismiss the indictments, (2) the sufficiency of the convicting evidence, (3) the admissibility of the prior testimony of an unavailable State’s witness, and (4) the method of sentencing. We find no reversible error, and we therefore affirm the convictions.

The defendant first insists that the trial court erred in refusing to dismiss the indictments in this case on the ground that he had been denied a speedy trial. His contention that the State failed to comply with the 180 day “statute of limitations” of the Interstate Compact on Detainers was properly rejected by the trial judge, since the record fails to show Dykes’s compliance or even substantial compliance with the requirements of Article 111(a) and (b) of that act. T.C.A. § 40-3901. Nor do we find that the defendant’s constitutional right to a speedy trial was impaired in this case. Although the two year delay between the initial indictments (March 1976) and Dykes’s trial (March 1978) is sufficient to trigger further inquiry into his situation, other considerations mandated by the four-pronged test of Barker v. Wingo, 407 U.S. 514, 92 S;Ct. 2182, 33 L.Ed.2d 101 (1972), fail to substantiate the constitutional claim here.

With regard to the reason for the delay, it appears that the State was ready (and, indeed, anxious) to go to trial as early as November 1976, some seven or eight months after the indictments against Dykes were first returned. The case was initially continued to allow argument on various motions filed by the defendant, one of which, a motion for change of venue, was eventually granted. Further delay in bringing the defendant to trial was occasioned by his conviction in federal court and subsequent incarceration in two different federal correctional facilities, and his apparent failure while incarcerated to execute certain Interstate Compact documents sent to him by his attorney for the purpose of facilitating his temporary transfer to Tennessee. The failure of defense counsel to appear for the setting of a trial date, the defendant’s pro se filing of a speedy trial motion in federal court in Memphis, requests by defense counsel for continuances to permit trial preparation, and the hearing and granting of Dykes’s motion for change of venue further contributed to the delay.

Moreover, it appears that the defendant was not desirous of a speedy trial until it was learned late in February 1977 that his co-defendant, Stanford McKay (who was expected to turn State’s evidence and testify against him), had escaped from a federal prison and was at large. A short time after McKay’s escape, Dykes’s attorneys filed a motion for a speedy trial. Once McKay had been recaptured, however, the record suggests that the defendant’s desire for speedy resolution of the charges against him cooled noticeably. Under all these circumstances, we conclude that the delay in bringing the defendant to trial was not unreasonable here and that Dykes himself was responsible, directly or indirectly, for most of the delay that occurred. Furthermore, there is no indication that the defendant was prejudiced by the delay in this case. We therefore hold that he was not denied his constitutional right to a speedy trial and overrule the related assignment of error.

The defendant next contends that the indictments should have been dismissed because of their improper resubmission to two subsequent grand juries. The record fails to substantiate the allegation of impropriety. The district attorney indicated that he thought new indictments were necessary to correct the misspelling of the defendant’s name, and that in all three instances the same proof was presented to the grand jury. The indictments appear to be valid on their face, and the defendant has cited no authority, and we know of none, which proscribes the resubmission and return of new indictments by a subsequent grand jury. In fact, the law appears to be to the contrary, see Holder v. State, 143 Tenn. 229, 227 S.W. 441 (1920); Hamilton v. State, 555 S.W.2d 724 (Tenn.Cr.App.1977), and the related assignment is therefore overruled.

The defendant next contends that one of the indictments, involving the concealment of a Chevrolet pickup truck, should have been dismissed under the double jeopardy clause of the federal constitution, as a result of his earlier conviction in federal court for a Dyer Act violation concerning the same vehicle, under 18 U.S.C.A. § 2313. Federal law provides that “whoever receives, conceals, stores, barters, sells or disposes of any motor vehicle . . . moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000, or imprisoned not more than 5 years or both.” The indictment in this case charges concealment of the stolen vehicle in question, the elements of concealment being (1) the fraudulent concealment of (2) goods feloniously taken or stolen from another, (3) knowing such goods to have been so obtained, (4) with the intent to deprive the owner thereof. Williams v. State, 216 Tenn. 89, 390 S.W.2d 234, 237 (1965); T.C.A. § 39-4217(B).

The State does not contest the substantial identity of the state and federal offenses here, and there can be no doubt that the facts show a single illegal possession giving rise to both charges. But, the State argues, neither federal nor Tennessee law bars a subsequent prosecution for the same offense. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); State v. Rhodes, 146 Tenn. 398, 242 S.W.2d 642 (1922); Martin v. Rose, 481 F.2d 658 (6th Cir. 1973).

We recognize that no court has yet found a double jeopardy violation based on successive prosecutions by separate sovereignties, a rule which is thought to be necessary to preserve the individual sovereignty of the various state governments and essential to our concept of federalism. The leading cases are Bartkus v. Illinois, supra, and its companion case, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), both relying on United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). See also United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978). For a review of the state cases, see 21 Am.Jur.2d Criminal Law § 192; 22 C.J.S. Criminal Law § 296; 1 Wharton, Criminal Procedure (12th ed. Tor-cía 1974). See also Double Jeopardy: Multiple Prosecutions Arising From the Same Transaction, 15 Amer.Crim.Law Rev. 259 (1978). It is nevertheless true that a substantial number of jurisdictions have modified the dual sovereignty theory, either by statute or by the adoption of a policy rule prohibiting prosecution for the same offense under certain circumstances. Furthermore, it appears that if Dykes had been prosecuted originally in the state courts of Tennessee, a second prosecution would not have been initiated in federal court absent a directive from the United States District Attorney based, among other considerations, on a finding of “compelling” reasons. Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977).

In the last decade, the high courts of three states have modified the dual sovereignty theory in recognition of the fact that a single prosecution will often serve to vindicate the institutional, penal and societal interests of both sovereigns. Note 2, supra. As the Michigan Supreme Court has recently noted:

[T]he interest of the Federal and state governments in prosecuting a criminal act frequently coincide. When state and Federal interests do coincide, prosecution by one sovereign will satisfy the need of the other. We note that persons convicted in Federal court only very rarely are prosecuted in state courts for offenses arising out of the same criminal act. Moreover, we do not perceive an inability or unwillingness to corporate among state and Federal criminal justice officials. Law enforcement agencies are not separate and independent in this age of ‘cooperative federalism’, as the United States Supreme Court has observed, ‘where the Federal and State Governments are waging a united front against many types of criminal activity’. People v. Cooper, supra, 247 N.W.2d at 870.

Thus the Michigan court held that the state constitution “prohibits a second prosecution for an offense arising out of the same criminal act unless it appears from the record that the interests of the State . and the jurisdiction which initially prosecuted are substantially different,” and concluded . that “[ajnalysis on a case-by-case basis cannot be avoided.” Id.

The Tennessee legislature has participated in this trend to a limited extent. Thus T.C.A. § 52-1438 bars prosecution of a drug-related offense following prosecution for the same offense in another jurisdiction. However, the dual sovereignty theory in Tennessee has remained otherwise undisturbed since its adoption over a century ago in State v. Rankin, 44 Tenn. 145 (1867). The rule is now being reexamined by the Tennessee Supreme Court, Carl Edward LaVon v. State of Tennessee, Court of Criminal Appeals at Jackson, cert, granted November 6, 1978, and docketed for argument at the April 1979 term. We think it is not altogether unreasonable to anticipate the Court’s adoption of the more modern position on this question. Nevertheless, until Rankin, supra, and Rhodes, supra, are actually overruled, we are bound by those decisions, however much we may question their continued wisdom. Furthermore, the prejudice to the defendant in this case has been minimized, as far as possible, by the trial judge’s order that the sentence in question be served concurrently with the sentence in a companion count and with the federal sentence imposed on Dykes for essentially the same offense. We therefore overrule the related assignment of error.

The principle thrust of the defendant’s attack on the sufficiency of the evidence is that the State failed to produce sufficient corroboration for the accomplice testimony of McKay and of James Hilbert, who owned the used car lot from which the stolen vehicles were seized. The trial judge granted a special request made by the defendant and charged the jury that McKay and Hilbert were accomplices as a matter of law. Under the law of this state, there can be no doubt that some extrinsic proof of Dykes’s involvement was therefore necessary in order to convict. Williams v. State, 216 Tenn. 89, 390 S.W.2d 234 (1965); Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964). However, Tennessee law requires only slight circumstances to corroborate the testimony of an accomplice. Williams v. State, supra. Thus, the corroborating evidence may be direct or entirely circumstantial and it need not be adequate, in and of itself, to support a conviction. The requirements of the corroboration rule are met “if there is some other evidence fairly tending to connect the defendant to the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice.” Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384, 386 (1949). We conclude that there was corroborating proof in this case sufficient “to connect the defendant with the . . . crime in such a way as may reasonably satisfy a jury that the accomplice is telling the truth . . . .” Id. at 386.

The evidence showed that various stolen vehicles were kept at Hilbert’s used car lot, and were offered for sale with counterfeit Florida titles. According to McKay, these titles were prepared by a Nashville printer from a photoengraving of a blank Florida title form supplied by Dykes. McKay then typed in the vehicle identification numbers of the stolen vehicles and other information tending to make the bogus titles appear to be valid. Prior to their sale, the vehicles were financed on a v/holesale basis at a local bank.

Most of the evidence concerning this illegal operation came through the testimony of McKay and of Hilbert, who had been mysteriously shot and killed two days before Dykes was first scheduled to go to trial, and whose testimony was supplied from the transcript of the prior proceeding against Dykes in federal court. In addition, the two purchasers of the Chevrolet pickup truck testified that Dykes was present in Hilbert’s office during the negotiation of the sale, and one of them further testified that approximately one week after the sale, Dykes came to him and asked for the return of the bill of sale, saying that he was picking it up for Hilbert. The proof also showed that Dykes was a co-signer on notes taken out to finance some of the stolen vehicles, and there was evidence tending to establish circumstantially that after two of the stolen cars (a Chevrolet Monte Carlo and a Mercury station wagon) were seized by the F.B.I., Dykes repaid a third party money which that person had given Hilbert’s business partner for the purpose of paying off the bank loan on these two vehicles. We conclude that this evidence, though “slight” and certainly not itself adequate to convict, establishes that Dykes had more than a casual interest in the stolen vehicles, and we hold that it was therefore sufficient to provide the jury with a basis for finding that the evidence corroborated McKay’s and Hilbert’s testimony concerning Dykes’s participation in the fencing operation. We thus overrule the related assignment of error.

The defendant next contends that the introduction of Hilbert’s federal court testimony violated his right to confrontation because its use in the state trial was not properly limited by the trial court. In contrast, he points out, the federal judge ruled that evidence concerning the Monte Carlo and the station wagon was admissible only for the purpose of establishing criminal intent with regard to the defendant’s involvement with the pickup truck, for which he was on trial in the federal tribunal. Th'e defendant thus contends that cross-examination in federal court as to the Monte Carlo and the station wagon “may” have been less vigorous and searching than would have been the case had Mr. Hilbert been available for examination at the state trial.

We find no reversible error in the trial court’s ruling. It is well-settled that the introduction of prior testimony of an unavailable witness, given under oath and subject to cross-examination, does not violate the confrontation clauses of the state or federal constitutions, where the issues are substantially the same as those involved in the prior proceeding. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 387, 39 L.Ed. 409 (1895); Hall v. State, 65 Tenn. 522 (1873); Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965), approved in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Hicks v. State, 490 S.W.2d 174 (Tenn.Cr.App.1972). Clearly these requirements were met in this case, and we find no constitutional deprivation. The related assignment of error is therefore overruled.

Finally, we find no error in the trial court’s decision to order consecutive service of one of the defendant’s sentences. The record demonstrates to our satisfaction that Dykes was a multiple offender within the meaning of Gray v. State, 538 S.W.2d 391 (Tenn.1976). Dykes was an active member of an ongoing conspiracy to steal vehicles, counterfeit titles for them, defraud local financial institutions in their financing, and then sell the vehicles to unwary buyers. His conduct thus “indicate[s] criminal activity so extensive and continuing for such a period of time as to warrant consecutive sentencing,” in the discretion of the trial judge. Id. at 393. The remaining assignment must therefore be overruled.

The judgment of the trial court is affirmed.

CORNELIUS, J., concurs.

BYERS, J., concurs in separate opinion.

BYERS, Judge,

concurring.

Although I agree with the majority opinion in affirming the judgment in this case, I wish to state my separate view on the dual sovereignty doctrine.

I have no quarrel with ending dual prosecutions based on the same facts. However, in my view the court is not the proper agency for bringing this about.

As pointed out in the majority opinion, five (5) states have modified the dual sovereignty rule by legislation and two have modified the doctrine by judicial decisions founded upon public policy.

Clearly, unless we are to ignore the deci-sional law over the past two hundred (200) years, these dual prosecutions do not present double jeopardy questions and are not constitutionally prohibited leaving the judiciary only a public policy platform upon which to base a prohibition of such prosecutions.

The public policy of the state is primarily for the legislature to determine, Hyde v. Hyde, 562 S.W.2d 194 (Tenn.1978), and is controlled by the legislature to a substantial extent. Duck River Electric Membership Corporation v. City of Manchester, Tennessee, 529 S.W.2d 202 (Tenn.1975).

If there are any reliable indicators to suggest what the public policy of this state is in this area, they point to a policy of state prosecutions of these type cases. We have had dual prosecutions of this nature at least since 1867 as reflected by State v. Rankin, 44 Tenn. 145. The courts of this state during the one hundred and twelve (112) years since that decision have not declared this to be against public policy. Significantly, the legislature during this same time has not seen fit to pass legislation as have five other states to prohibit these prosecutions, indicating to me there is no public policy against such prosecutions.

The police power rests with the legislature and the courts can only prohibit the carrying out of such power upon a determination of constitutional infirmity, a condition not having been found to exist in these type cases.

If the practice of dual prosecution in this state is to be ended, curtailed or modified, such change should come from the legislature and not the courts.

The power to declare what shall be unlawful and what acts shall be punished reposes with the several states. U.S.Const., amend. X. This is paramount and federal authority is secondary and derived only by act of Congress. I would further suggest, out of deference to Federalism, for which a lot of good can be said, if there is to be a relinquishment of prosecution to avoid dual punishment such relinquishment should be by the federal authorities rather than the state.

      . See, e. g., Ark.Stat.Ann. § 41-108 (1975); Colo.Rev.Stat. § 18-1-303 (1974); Ga.Code Ann. § 26-507(c) (1968); Ill.Rev.Stat. ch. 38, § 3—4(c) (1974); Va.Code § 19.2-294 (1975).

      . Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971); People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); State v. Hogg, 385 A.2d 844 (N.H.1978).

      . The so-called “Petite policy,” as promulgated by the Attorney General, requires that federal reprosecutions must be approved under strict guidelines and justified by “compelling” Government interests. Memo to U.S Attorneys, Department of Justice Press Release, April 16, 1959. The name of the government’s policy derives from Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960). See also Commonwealth v. Cepulonis, - Mass. -, 373 N.E.2d 1136, 1140 (1978).

      . These interests, according to the opinion in Cooper, would include (1) whether there is a significant disparity in the maximum imposable sentences; (2) whether any statutory differences are substantive or merely jurisdictional; (3) whether there are extraneous “reasons why one jurisdiction cannot be entrusted to vindicate fully another jurisdiction’s interest in securing a conviction.” 247 N.W.2d at 871. The relative sentences in this case are three to ten years under T.C.A. § 39-4217, and not more than five years under 18 U.S.C.A. § 2313; the differences in the statutes appear to be largely jurisdictional, i. e., the federal act requires proof that the stolen vehicle was transported across state lines and that this fact was known to the defendant; the record on the last consideration is undeveloped, except to the extent that it shows conclusively that Dykes had been charged and convicted under the Dyer Act provisions and had been in federal custody since December 5, 1976. Under the Michigan standards, it is difficult to escape the conclusion that Tennessee’s interest in Dykes’s prosecution had already been served by his prior conviction in federal court.

      After the release of this opinion, the Supreme Court announced its decision in Lavon v. State, 586 S.W.2d 112 (Tenn.1979).

      . Even if we were to hold that Dykes could not be prosecuted a second time for his involvement with this particular vehicle, we conclude that evidence of his connection with the truck would be admissible as an exception to the “other crimes” rule, to establish a common scheme, plan or design and thus to identify him as one of the central figures in the theft ring. See generally Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).


author: BARROW, Justice.

text:
    SUNBELT UTILITIES, Appellant, v. PUBLIC UTILITY COMMISSION of Texas, Appellee.
    No. B-8252.
    Supreme Court of Texas.
    Oct. 31, 1979.
    Rehearing Denied Dec. 12, 1979.
    David Claflin, Austin, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for appellant.
    Mark White, Atty. Gen., Joyce Beasley, Asst. Atty. Gen., Austin, for appellee.
   BARROW, Justice.

This is a direct appeal raising a question of first impression in Texas on the issue of contributions in aid of construction in utility rate base making. The principal question presented is whether the Commission properly excluded the developer’s cost of the utility system from the rate base because the rate payers had already paid for this system as a part of the purchase price of their lots. We agree that these costs were properly excluded as contributions in aid of construction. Accordingly, we affirm the judgment of the district court which upheld the Commission’s order.

Sunbelt Utilities, a partnership composed of five corporations which are owned and controlled by William S. O’Donnell and his immediate family, filed an application and statement of intent to raise rates with the Public Utility Commission of Texas. The Commission excluded nearly $800,000 from Sunbelt’s asserted rate base of $2,374,262 because these sums had been expensed (written off) by the development companies prior to gratuitous transfer of the utility systems to the “brother-sister” utility corporations for each subdivision. The development companies exercised their option under rules of the Internal Revenue Service to write off in the year of sale of the lots the cost of the utility system. All of these companies have common ownership. Each of the five related utility companies is a partner in Sunbelt and the profits or losses of Sunbelt are to be shared in proportion to the number of connections in each subdivision.

The statute grants a utility the right to earn a reasonable rate of return on its invested capital. Art. 1446c § 39. The adjusted value of the utility’s invested capital is the foundation of the rate base. Art. 1446c, § 41(a); Southwestern Bell Tel. v. Public Utility Com’n, 571 S.W.2d 503 (Tex.1978). See Webb, Utility Rate Base Valuation in an Inflationary Economy, 28 Baylor L.Rev. 823 (1976); Nichols & Fields, Rate Base Under PURA: How Firm is the Foundation?, 28 Baylor L.Rev. 861 (1976). As a hypothetical example, assume that the adjusted value of the utility’s invested capital is $1,000. This will be the rate base. Assume further the utility is granted a twelve percent rate of return. It will then earn $120 on its adjusted value of invested capital. There is no dispute here as to the valuation of the utility system or the twelve percent rate of return found by the Commission.

Sunbelt does not question the rule which is well established in other jurisdictions that contributions by a customer in aid of construction are properly excluded from the rate base. Under this rule the utility is not allowed to earn a rate of return on property acquired from or paid for by the rate payer. See Du Page Utility Co. v. Illinois Commerce Com’n, 47 Ill.2d 550, 267 N.E.2d 662 (1971); State ex rel. Util. Com’n v. Heater Util., Inc., 288 N.C. 457, 219 S.E.2d 56 (1975); 1 Priest, Principles of Public Utility Regulation at 177 (1969). The parties have not cited us a Texas case on this point and we have found none. However, we believe this rule is correct and here hold that consumer contributions in aid of construction should be excluded from a utility’s rate base.

This brings us to the pivotal question in this case: Were the developer’s costs of constructing the utility system recovered from the rate payers as a part of the purchase price of their lots? Sunbelt agrees that if the developers recovered the cost of the system in the lot sales price, such recovery should be carried over to the Sunbelt partnership because of the identity of ownership between the developer companies and the utility companies.

The crucial facts are undisputed. The development company in each subdivision installed the utilities, streets, sidewalks, and curbs so as to make the property marketable. The lots were then transferred to a related building corporation. Since most of the financing for the home construction was to be from the Veterans Administration or Federal Housing Administration, the utility system for each subdivision was deeded to a utility company for that subdivision under a trust indenture as required by the FHA. The developer took advantage of a provision of the federal income tax laws and wrote off in one year the entire cost of the utility system. In Willow Terrace Devel opment Co. v. Commissioner of Internal Revenue, 345 F.2d 933 (5th Cir. 1965), the court overruled the Commissioner and upheld the developer-taxpayer’s right to deduct the cost of the water and sewage disposal system from the sums realized from sale of the property in the subdivision. Likewise here, the entire cost of the utility system was expensed against the amount realized from sale of the lots. That is, the development corporation deducted the water and sewer systems’ cost from lot sales revenue to determine taxable income and paid a lesser amount of federal income tax than would have been paid had the tax write-off not been taken.

Since the development companies were in a forty-eight percent tax bracket, Sunbelt urges that it received only this percentage of the development costs and should be entitled to include the remainder in its rate base. On the other hand, the Commission concluded that since the entire cost of the utility system was expensed by the development companies against the amount realized from sale of the lots, the rate payers had already paid for the utility system and these costs should be excluded from the rate base.

While this problem is one of first impression in this state, it has been considered by courts and regulatory bodies in other states. The uniform rule followed in these cases is that when a developer has recovered all or a part of the cost of the utility system through the sale of lots, the regulatory body has excluded that amount from the utility’s rate base. The recovery of this cost by the developer in its sale of lots is treated as a contribution in aid of construction. See Florida Cities Water Co. v. Board of Cty. Com’rs, 334 So.2d 622 (Fla.App.2d 1976); Westwood Lake v. Metropolitan Dade Co. W. & S. Bd., 203 So.2d 363 (Fla.App.3d 1967); Du Page Utility Co. v. Illinois Commerce Com’n, supra; Killarney Water Co. v. Illinois Commerce Com’n, 37 Ill.2d 345, 226 N.E.2d 858 (1967); State ex rel. Util. Com’n v. Heater Util., Inc., supra; Princess Anne Util. C. v. Commonwealth ex rel. S.C.C., 211 Va. 620, 179 S.E.2d 714 (1971); In Re Green-Fields Water Co., 53 PUR3d 670 (N.J.Bd. of Public Utility Commissioners 1964).

Sunbelt urges that these cases are distinguishable because there was no substantial evidence to support an agreement that a part of the purchase price of the lots included the costs of the utility system. Mr. O’Donnell specifically denied that the utility costs were included in the sales price of the lots and, in fact, said they were not considered in determining the price of the lots. He pointed out that a few of the lots in one of the subdivisions were in a metropolitan water district and that these lots were sold for essentially the same price. Nevertheless, he conceded that the availability of the utility systems made the lots marketable as home sites. Necessarily, this increased the value of the lots. It would be folly for any developer to say that he did not take into consideration the cost of making the subdivision marketable when he determined the price necessary to make a profit. Furthermore, it is undisputed that the entire cost of the utility system was expensed by the developer against the sum realized from the sale of the lots. Having been fully written off, the developer had a zero rate base insofar as these costs are concerned when the system was transferred without cost to the utility company.

An argument similar to that urged by Sunbelt was rejected in Princess Anne Util. C. v. Commonwealth ex rel. S.C.C., supra. In doing so, the court said:

“It is true that there was no actual testimony before the Commission relating to what it seems made up the prices of the homes purchased by those who became customers of the utility company. But it would be wholly unrealistic to say that the costs of the sewerage facilities contributed by the land development companies were not passed on to those customers. As the Commission pointed out in its opinion, it is common practice in real estate development to finance construction of sewerage facilities by the contribution method employed in this case, with the cost of such construction reflected in the prices paid by the purchasers of homes in the finished development. That the same result occurred in this case there can be no doubt. Neither the Commission nor this court needs testimony to tell it what is a matter of common knowledge.
“Thus, to allow the utility company a return on contributions in aid of construction would have the effect of requiring the customers to pay twice for the same property. This would be unjust. Such contributions were, therefore, properly excluded by the Commission in determining rate base.”

Also, in Florida Cities Water Co. v. Board of Cty. Com’rs, supra, it was said that “a reasonable inference may be drawn that the source of these monies (to build the facilities) came from the sale of the lots.” See also Du Page Utility Co. v. Illinois Commerce Com’n, supra.

We conclude that the finding of the Commission, that the purchasers of the lots in the subdivisions had paid the developer’s cost of the utility system as a part of the purchase price of their lots, is reasonably supported by substantial evidence. See Southwestern Bell Tel. v. Public Utility Com’n, supra. Sunbelt is therefore not entitled to a rate of return on this contributed property and this cost was properly excluded from its rate base. This exclusion did not amount to an illegal confiscation of Sunbelt’s property in violation of the 5th Amendment to the United States Constitution or of Art. 1, § 17 of the Texas Constitution.

Sunbelt argues that if we should conclude that these expensed costs of the utility system are found to be contributions in aid of construction, it should, in any event, be entitled to depreciation on this contributed property. We have not found any Texas authority on this question and the authorities in other states are divided. In Princess Anne Util. C. v. Commonwealth ex rel. S.C.C., supra, depreciation was not allowed by the Commission on contributed property for the reason that where there was no investment, there was nothing to be recovered through depreciation. The court held that the Commission had not abused its discretion in denying depreciation. On the other hand, the court in Du Page Utility Co. v. Illinois Commerce Com’n, supra, held that the Commission had not abused its discretion in allowing depreciation on the contributed property for the reason that Du Page would be required to replace the system from time to time.

The Examiner’s Report which was adopted by the Commission held, without discussion of the question, that depreciation expense should not be allowed on the costs excluded from the rate base. We agree that this holding is reasonably supported by substantial evidence.

The judgment of the trial court is affirmed.'

      . “Contributions in aid of construction” may be defined as donations or contributions in cash, services or property from states, municipalities or other governmental agencies, individuals, and others for construction purposes. See State ex rel. Util. Com’n v. Heater Util., Inc., 288 N.C. 457, 219 S.E.2d 56 (1975).

      . All statutory references are to Texas Revised Civil Statutes Annotated.

      . As a general proposition, expenditures for capital items such as water and sewer systems would not be treated as current expenses because the useful life of the systems extends beyond the period the expenditures were made. However, developers are accorded the right to charge off these expenses in one year rather than capitalize them.

      . Some of the lots were not so treated and this part of the expense was included without objection in the rate base. However, the parties have briefed the question as if all costs were recovered by the developer.