author: McMILLIAN, Presiding Judge.

text:
    UNITED STATES FIDELITY & GUARANTY CO., a Corporation, Plaintiff-Respondent, v. SAFECO INSURANCE COMPANY OF AMERICA, a Corporation, Defendant, Cross-Claimant, Cross-Defendant, Appellant, and Robert Allan Alonzo and Joseph C. Alonzo, Defendants, Cross-Defendants, Cross-Claimants, Respondents.
    No. 38007.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Aug. 9, 1977.

      Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Daniel T. Rab-bitt, J. C. Jaeckel, St. Louis, for defendant, cross-claimant, cross-defendant, appellant.
    Friedman, Weitzman & Friedman, C. Marshall Friedman, St. Louis, for defendants, cross-defendants, cross-claimants, respondents.
    Barnard & Baer, George E. Lee, Doris J. Banta, St. Louis, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant, Safeco Insurance Company of America (Safeco) appeals from a judgment entered by the Circuit Court of City of St. Louis in a supplemental proceeding after a declaratory judgment. The supplemental judgment declared Safeco liable for the interest on judgments collected by Robert Alonzo and his father, Joseph Alonzo.

On January 16,1970, four teenagers were involved in a one car accident when the driver, Roy Chapman, ran off the road and hit a tree. The car he was driving belonged to Mrs. Dorothy Kloepper but was used primarily by her daughter, Jane, who was a passenger at the time of the accident. The other two passengers, Deborah Norman and Robert Alonzo, were the only ones seriously injured.

Plaintiff, United States Fidelity and Guaranty Company (USFG) insured the automobile involved, and its policy provided coverage of $25,000 for injury to one person and $50,000 for each occurrence. Safeco insured an automobile owned by the father of Roy Chapman, and its policy provided coverage, in connection with the operation of a non-owned automobile by one insured under its policy when such operation “is with permission, or reasonably believed to be with the permission of the owner, and within the scope of such permission.”

On August 7, 1970, USFG, as plaintiff, filed a declaratory judgment, naming as defendants, Safeco, Robert and Joseph Alonzo, Deborah Norman, Roy Chapman, Dorothy Kloepper, and later, by amendment Dorothy Kloepper⅛ daughter, Jane Kloep-per. The declaratory judgment suit sought a determination as to which of the two liability insurers owed what under the omnibus clause coverage in USFG’s policy and the non-owned automobile clause coverage in Safeco’s policy.

Before the Missouri Supreme Court handed down a definitive decision in the declaratory suit, the Alonzos and Deborah Norman, in separate suits, had been awarded judgments against Roy Chapman totalling $151,000 — Robert Alonzo, $87,500; Joseph Alonzo, $18,500; and Deborah Norman, $45,000.

While the declaratory suit was pending, the Alonzos’ action against Roy Chapman was in progress. During the damage suit, the Alonzos entered into two agreements with the other parties. On June 9, 1971, they agreed not to pursue Roy Chapman’s personal assets to satisfy any judgments they might recover, but to seek relief from the two insurance companies only. In return Roy Chapman admitted liability for the purposes of the trial. On June 10,1971, at the close of the plaintiff’s evidence, the Alonzos orally agreed to release Jane and Dorothy Kloepper and USFG from all claims arising from the January 16, 1970, accident upon payment by USFG of $12,-500. As can be seen, the Alonzos also agreed to release USFG from any liability it may have for any judgments entered against Roy Chapman. This agreement was not executed until September 7, 1971.

As a result of the above agreement, a directed verdict was entered in favor of Jane Kloepper. The case against Roy Chapman was submitted to the jury and verdicts of $100,000 for Robert Alonzo and $25,000 for Joseph Alonzo were returned. These were reduced by remittitur to $87,500 and $18,500 respectively, so as to conform to the prayer in the petition.

On September 7,1971, three months after the Alonzos recovered the above verdicts, the declaratory judgment suit came to trial. Safeco, joined as a defendant, cross claimed for a judgment that its coverage did not extend to Roy Chapman. The Alonzos, also defendants, cross claimed against Safeco seeking an order that Safeco pay $52,000 ($50,000 policy limit and $2,000 medical) on the judgment collected in the previous trial. The trial court held that Chapman was covered under both policies and ordered Safeco to pay the Alonzos $52,000 as well as interest of 6% on Robert Alonzo’s judgment of $87,500 and 6% on Joseph Alonzo’s judgment of $18,500 from June 24, 1971 until Safeco paid its full liability to the parties.

On appeal and reassignment from this court, the Missouri Supreme Court partially affirmed, ruling that USFG was primarily liable for Roy Chapman, as insurer of the car, while Safeco as insurer for the driver, was the excess carrier. USF&G v. Safeco Ins. Co., 522 S.W.2d 809, 816 (Mo. banc 1975). It reversed the award of $52,000 to the Alonzos because it did not take into consideration the Norman judgment nor as to how the judgments totalling $151,000 ($87,500 for Robert Alonzo, $18,500 for Joseph Alonzo, $45,000 for Deborah Norman nee Fanin) were to be apportioned from the total coverage of $100,000 and $2,000 medical payments. The court omitted any reference to the trial court’s ruling on the interest payable by Safeco.

After the remand of the declaratory judgment proceeding by the Supreme Court, the parties agreed among themselves that the Alonzos would receive $41,800 of the Safeco policy and Deborah Norman would receive $8,200. In addition, the trial court declared that for the purposes of computing the interest, the Alonzo judgments would be reduced by $12,500, the amount already received from USFG as settlement. Therefore, Safeco owed $2,188.10 as interest on the $18,500 judgment in favor of Joseph Alonzo (reduced to $8,500 for purposes of interest) and $21,881.09 as interest on the $87,500 judgment in favor of Robert Alonzo (reduced to $85,000 for the purposes of interest). Costs were to be paid equally by USFG and Safeco. Safeco appeals this order on the interest issue.

For reversal, Safeco urges that: (1) as excess carrier it is not liable for any interest until USFG, the primary insurer, has paid its full policy limits; (2) the settlement agreement (Exhibit U) is not for consideration because it was not pleaded, and even if it is before the court for consideration it does not release USFG’s liability to Chapman for the Alonzo judgments; (3) the Alonzos are not entitled to interest on their judgments from Safeco because they failed to look to USFG for payment of its policy obligations (which includes payment of interest) as they promised to do in the June 9, 1971 agreement with Chapman. Because Safeco is the equitable assignee or subrogee of Chapman, it can enforce the agreement the Alonzos made with Chapman to look to USFG for payment.

We find no merit in these allegations and affirm the trial court’s ruling that Safeco is liable for the interest on the Alonzo judgments. However, Safeco is only to be held liable for the interest on that part of the Alonzo judgments which equals its policy limits, therefore, we reduce the amount of interest Safeco owes to $10,748.32, which is 6% of $41,800, the amount of the Safeco policy the Alonzos actually recovered. As the trial court stated, interest accumulated from June 24,1971, when the judgment was rendered until October 7,1975, when Safeco paid its policy limits into the court.

After seven years, three lawsuits, two trials and two appeals, we are eager to put this complex case to rest. Before us are judgments against Roy Chapman in favor of the Alonzos totalling $106,000 and two insurance companies whose coverage extends to Roy Chapman. Despite the fact its policy limit is $50,000 USFG is only liable for $12,500 of the judgments because of the settlement agreement made during trial. Safeco is only liable for $52,000 ($50,000 policy limit and $2,000 medical). Interest has accumulated on the judgments for approximately four and one-half years while the insurance company litigated their respective liabilities. Now, both companies deny liability for the interest.

Before we can deal with the interest issue we must confront Safeco’s claim that the $12,500 settlement (Exhibit U) is not before us for consideration because it was not properly pleaded.

Neither of the parties have stated precisely at what point in this litigation the “settlement” was not properly pleaded but it appears that Safeco’s argument is that USFG should have pleaded it between June and September, 1970, when the declaratory judgment action was initiated. Safeco argues that this settlement agreement is a release, which as an affirmative defense, Winter v. Elder, 492 S.W.2d 146, 148 (Mo.App.1973), must be pleaded, § 55.08 RSMo, V.A.M.R. (1976), and because USFG did not plead it, it cannot be considered. However, § 55.08 applies only when a party is “pleading to a preceding pleading.” USFG was the plaintiff in this declaratory judgment action and because it initiated the pleadings it never had a “preceding pleading” to respond to. Although Safeco cross-claimed against the other defendants it never counterclaimed against USFG so that USFG would have a “preceding pleading.” Therefore § 55.08 does not apply.

Safeco’s next argument is that the settlement was only concerned with Jane Kloepper’s liability and can not release USFG from liability for Chapman as well. According to Safeco, Chapman’s rights cannot compromise this agreement because he was not a party to it. This might be a persuasive argument if by securing this release, USFG left Roy Chapman open for personal liability for the judgments rendered against him. But, however, the Alon-zos had already agreed not to hold Chapman personally responsible, and thus Chapman’s position was not affected by this agreement. We will not speculate as to why the Alonzos settled with USFG as to Jane Kloepper’s negligence rather than submitting this question to the jury, nor as to why they further agreed to release USFG from liability for Chapman. But, for whatever reasons, the Alonzos have the right to settle their claims as they believe best, as long as they do not purport to give away rights of a third person who is not a party to the agreement. And, as we have pointed out they have not given away Chapman’s rights by this agreement. Again, we will not speculate as to why the Alonzos agreed to this further condition in the settlement,

Safeco further argues that because USFG continued to deny liability for Chapman for three years after the settlement was executed, it admitted said settlement did not release it from liability for Chapman. We assume, however, that USFG took this position because it was still potentially liable for judgments against Chapman secured by Deborah Norman. We have no evidence indicating that Deborah Norman, like the Alonzos, released USFG from liability for Chapman. As will become apparent, this settlement agreement is crucial as we confront the major issue in this case: Which insurance company is liable for the interest on the Alonzo judgments.

Basically, Safeco maintains that as excess carrier, it has no liability for the interest until USFG, the primary carrier, has discharged its responsibilities by paying the full policy limit. According to Safeco, only payment and not settlement, can discharge a carrier’s liability. USFG argues that its liability was exhausted by the settlement and that Safeco as excess carrier became liable to pay the interest under its supplementary policy provision which states: “Sa-feco . . . agrees . . . [t]o pay, in addition to the applicable limits of liability . . interest accruing after entry of judgment in any such suit . . . ”

Safeco, as excess carrier, is liable only when the primary insurer’s (USFG) liability has been exhausted. Therefore, our first question is — Was USFG’s liability exhausted by settlement or can it only be exhausted by payment of its full coverage as Safeco argues? This court, in Handleman v. USF&G Co., 223 Mo.App. 758, 18 S.W.2d 532 (1929), while emphasizing that exhaustion of the primary insurance was a necessary condition precedent to liability under the excess policy, clearly held that “Such condition is complied with when the insured proves that claims aggregating the full amount of the specific policy have been settled thereunder and full liability of the insurer discharged.” Based on this precedent, we hold that USFG’s liability was exhausted by the settlement with the Alon-zos’ and Safeco’s liability as the excess carrier arose.

Having determined that Safeco is liable, we must decide whether Safeco is responsible for the interest on the entire judgment or only for the interest on that part of the judgment which equals its policy limit. Safeco’s policy provides:

“SAFECO . . . [ajgrees with the insured . . . [t]o pay, in addition to the applicable limits of liability:
(d) interest accruing after entry of judgment in any such suit until SAFECO has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of SAFECO’s liability thereon; . . . ”

Whether this obligates it to pay interest on the full judgment or only on that part of the judgment which equals its policy limit is an unresolved issue in the law. 76 A.L.R.2d 983. While the trend appears to be in favor of finding liability for the interest on the entire judgment, Stamps v. Consolidated Underwriters, 208 Kan. 630, 493 P.2d 246, 249 (1972); Germer v. Public Svc. Mut. Ins. Co., 99 N.J.Super. 137, 238 A.2d 713 (1967); 8 Appleman, Insurance Law & Practice, § 4899 at 361 (1962 rev.), we believe the major reason supporting this position is inapplicable to the case at bar.

Most commentators and courts justify imposing liability for interest on an entire judgment because to obtain automobile insurance coverage an individual must give the insurer the right to control the litigation. If the insurer prolongs the litigation by appeals or other delaying actions, he causes the interest to accumulate not only on that part of the judgment which is within its policy limits and for which it is responsible, but also on that part of the judgment for which the insured may be personally liable. As a result of controlling the litigation and causing the insured to incur greater personal liability, the insurer should bear the full cost of the delay, i. e., the entire interest. River Valley Cartage Co. v. Hawkeye-Security Ins. Co., 17 Ill.2d 242, 161 N.E.2d 101 (1959); Wilkerson v. Maryland Cas. Co., 119 F.Supp. 383 (E.D.Va. 1953); 8 Appleman, Insurance Law & Practice, § 4899 at 364.

Because the Supreme Court in USFG, supra, at 822, found SAFECO not guilty of bad faith in failing to settle and defend, we hold Safeco is not liable for the entire cost of delaying the litigation because USFG was equally responsible for the delay. USFG initially brought the declaratory judgment that it was not liable for Chapman and it, along with Safeco and Deborah Norman, appealed that ruling to this court, which resulted in a transfer to the Supreme Court and a delay of four years. Moreover, because of the agreement between the Al-onzos and Chapman, the “insured”, i. e., Chapman, in this case will not be personally liable for any part of the judgment or interest thereon. Therefore the dilatory actions by the insurers have not resulted in an unfair and uninvited liability to the “insured.”

In addition, the language in Safeco’s policy less readily lends itself to the interpretation that Safeco is liable for interest on the entire judgment, especially when compared with the language in policies where this liability was found. Safeeo’s policy states: “Safeco . . . [ajgrees . . . [t]o pay, in addition to the applicable limits of liability . . . interest accruing after entry of judgment in any such suit. . ” In all cases where it was held that the insurer was liable for interest on that part of the judgment which exceeded its policy limits, the policy stated that the insurer agreed to pay “all interest accruing. . . ” (Emphasis added.) River Valley Cartage Co. v. Hawkeye-Security Ins. Co., supra; Highway Cas. Co. v. Johnston, 104 So.2d 734 (Fla.1958); Germer v. Public Svc. Mut. Ins. Co., supra.

For these reasons we find it more equitable and appropriate to hold that Safeco is only liable for the interest on $41,800, the amount actually collected from Safeco by the Alonzos, rather than on $93,500, the amount on which the trial court determined Safeco should pay interest, its policy limit. At a rate of 6%, from June 24, 1971 (judgment was rendered) to October 7,1975 (Sa-feco paid its policy limits into the registry of thb court) this would be $10,859.64.

Although USFG is only liable for $12,500 of the Alonzo judgments against Roy Chapman, the question remains whether it should be liable for interest on these judgments at least up to its policy limit. We believe this issue is also resolved by that part of the $12,500 settlement entered into by the Alonzos and USFG which states, e. g., “Second Party (the Alonzos) . agrees that First Party is further released and forever discharged from any liability it may now have or later become determined to have ... for or on account of the judgments entered against Roy Chapman and Second Party does hereby agree to indemnify and hold harmless First Party against any liability and expense for payment of any part of said judgment for any reason.” (Emphasis added.) Clearly, this agreement releases USFG from all liability whatsoever, whether for the judgment itself or for any interest on the judgment.

We must next address Safeco’s contention that the Alonzos cannot collect interest from Safeco because the Alonzos failed to look to USFG for payment of its policy obligations, which includes payment of interest, as they promised to do in the June 9, 1971, agreement with Chapman. Because Safeco is the equitable assignee or subrogee of Chapman, it can enforce this agreement on behalf of Chapman. This argument is easily disposed of. The contract between the Alonzos and Chapman in which Chapman agreed to admit liability for the accident and the Alonzos agreed to look to Safeco and USFG for satisfaction of judgments obtained was made and entered into June 9, 1971. The $12,500 settlement in which the Alonzos released USFG for liability for the Kloeppers and Chapman was orally agreed to on June 10, 1971, and executed on September 7, 1971. Thus, in the second agreement, the Alonzos did just what they promised to do in the first; they looked to USFG for relief but decided to settle rather than attempt to recover a judgment after suit. Therefore, the Alon-zos have not abandoned the agreement they made on June 9, 1971 and Safeco’s attempt to prove they have is pointless.

In conclusion, we reverse the trial court’s order to Safeco to pay interest on the entire amount of the judgments collected by the Alonzos and substitute an order that Safeco pay interest on $41,800 of the judgments. As computed earlier this is equal to $10,-748.32.

Accordingly, judgment is reversed with directions.

STEWART and REINHARD, JJ., concur.

      .Second Party (Joseph Alonzo) on behalf of himself individually and as guardian of the estate of Robert Allan Alonzo, his son, does hereby release and forever discharge the United States Fidelity & Guaranty Company, Dorothy Kloepper and Jane Kloepper from any and all claims, damages, demands, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done, omitted or suffered to be done, by anyone prior to and including the date hereof on account of all injuries, both to person or property, resulting or to result, to Second Party, and said Robert Allan Alonzo, from the said accident of January 16, 1970.
      “In further consideration of the aforesaid payments, Second Party on behalf of himself and his said minor son, agrees that First Party (USFG) is further released and forever discharged from any liability it may now have or later become determined to have in said declaratory judgment action, aforesaid, and for or on account of the judgments entered against Roy Chapman in Cause No. 13643-F, aforesaid, in favor of Second Party and his minor son Robert and Second Party does hereby agree to indemnify and hold harmless First Party against any liability and expense for payment of any part of said judgment for any reason.” (Emphasis added.)

      . In the Alonzo’s cross-complaint they also requested the court enter a judgment against Safeco and in their favor for the total sums of the two judgments plus interest because of Safeco’s wrongful conduct in refusing to assume the defense of this action and in refusing to settle. The trial court declined to enter this order and entered judgment against Safeco for $52,000 only.

      . It appears to us that the trial court did not declare the rights of all parties as requested by USFG in its petition. While it determined that Roy Chapman was covered by both the USFG and Safeco policies it failed to declare what the effect of the settlement agreement was on the Alonzo’s ability to recover anything from USFG beyond the $12,500 settled for. It also failed to declare whether Deborah Norman could recover from USFG to satisfy her $45,000 judgment against Roy Chapman. The Supreme Court also failed to rule on these issues.

      . We believe some clarification of this holding is in order. Apparently the Supreme Court arrived at the $102,000 total coverage figure as follows: $50,000-policy limit of USFG; $50,-000-policy limit of Safeco; $2,000-medical payments recovered by Robert Alonzo under Safe-co’s policy; $102,000-total.
      The problem with the above calculation is that the full $50,000 of USFG’s policy is not available and so, total coverage is not $102,000.
      True, at first glance it would seem that the full limit of USFG’s policy ($50,000) is available. USFG’s policy provides maximum coverage of $50,000 per occurrence and $25,000 per person and there were two injured persons (Deborah Norman and Robert Alonzo), each with judgments exceeding $25,000. Therefore, it would seem that if each collected their share, $25,000, USFG’s policy limit of $50,000 would be exhausted.
      The Alonzos will not be able, however, to collect the $25,000 due to them under USFG’s policy because they settled all of their claims with USFG for $12,500 as set out in Exhibit U (see footnote 1). In this settlement, the Alon-zos released Dorothy and Jane Kloepper and USFG from liability for the Kloeppers and USFG for any liability it may have for judgments collected by the Alonzos against Roy Chapman. Therefore, USFG is not liable to the Alonzos beyond the $12,500 agreed upon for the judgments collected against Chapman.
      It appears that the Supreme Court was not aware of that part of the settlement which released USFG from liability to the Alonzos for judgments rendered against Chapman. Exhibit U (the settlement agreement) was missing from the file received by this court and if it was similarly missing from the file given to the Supreme Court, it is very likely that the court was only aware of that part of the agreement which released Jane Kloepper from liability for this was the only aspect of the settlement discussed in the transcript. The following language of the court indicates that it believed this agreement was only concerned with Jane Klo-epper’s liability: “[A] settlement was made by USFG whereby upon payment of $12,500, a motion for directed verdict was sustained in favor of Jane Kloepper . . . The record does not disclose whether anyone else, either person or corporation, was also released as part of the $12,500 settlement.” 522 S.W.2d at 821.
      Therefore, if, as the above language indicates, the Supreme Court was unaware of that part of the settlement which released USFG from liability for judgments against Roy Chapman recovered by the Alonzos, it would assume that the Alonzos could recover the remaining $12,500 of the USFG $25,000 policy limit to satisfy their judgments against Chapman.
      We have no evidence indicating otherwise and therefore assume that Deborah Norman is able to collect $25,000 from USFG to partially satisfy the $45,000 judgment she recovered against Roy Chapman. Her right to recover from USFG was not affected by the settlement made by the Alonzos. In addition, we assume that this was the reason USFG continued to litigate the issue of whether its coverage extended to Chapman after it had settled such liability with the Alonzos.
      In summary, we believe the total coverage available to the injured parties is $89,500 rather than $102,000: $25,000-amount Deborah Norman nee Fanin is able to collect from USFG to partially satisfy her $45,000 judgment; $12,-500-amount the Alonzos recovered from USFG pursuant to their settlement; $50,000-amount of Safeco’s policy limit which was eventually paid into the court and divided between the Alonzos and Deborah Norman nee Fanin; $2,000-amount of medical payments recovered by Robert Alonzo under Safeco policy; $89,-500-total coverage available to the injured parties.

      . $106,000 ($87,500, Robert Alonzo; and $18,500, Joseph Alonzo).


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Lawrence L. BALLARD, Marilyn Ballard, Albert J. Appel and Constance Appel, Relators, v. Drew W. LUTEN, Jr., Respondent.
    No. 38761.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Aug. 16, 1977.
    Shifrin, Treiman, Bamburg & Dempsey, Harold B. Bamburg, Kenneth J. Heinz, St. Louis, for relators.
    Thomas W. Wehrle, County Counselor, Dennis Morgan, Asst. County Counselor, Clayton, for County Council and St. Louis County.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Albert A. Michenfelder, Jr., Clayton, for respondent.
   NORWIN D. HOUSER, Special Judge.

Prohibition. The question for determination is which of two statutes governs the time allowed for filing an appeal from an order of the St. Louis County Council made pursuant to § 71.270, vacating 45 feet of Shady Meadows Drive, a public street in a platted subdivision located in St. Louis County outside the corporate limits of any municipality. Two corporations objecting to the vacation filed in circuit court a petition for judicial review of the order of the county council, praying for a judgment declaring null and void the order of vacation and ordering restoration of the pavement removed under the order. Property owners, defendants in that action, moved to dismiss the petition on the ground that no appeal from the order of the county council was taken within 10 days of the order, as required by § 49.230. The circuit judge overruled this motion and a similar motion to dismiss filed by St. Louis County and its council. The property owners then filed in this court a petition for a writ of prohibition to prohibit the circuit judge from proceeding on the petition for review, contending that no appeal from the county council’s order was filed within 10 days after the order was entered. The circuit judge filed a motion to dismiss the petition for a writ of prohibition, alleging that the procedure for appeal from the order of the county council is provided by § 228.120(2), and that the two corporations timely filed their petition for judicial review within the 30 days allowed by § 536.110 for the filing of such a petition. Our preliminary writ of prohibition issued and the pleadings were made up by the filing of return and reply.

We conclude that § 49.230, the general statute governing appeals from the decisions, findings and orders of county courts, controls in this case; that § 228.-120(2), relating to judicial review of a county court order vacating “a public road” is inapplicable; that under § 49.230 parties aggrieved by a county court order, or in this case the order of a county council, vacating a portion of a street in a platted subdivision located outside the corporate limits of a municipality must file a notice of appeal within 10 days from the date of the decision of the county council, and since respondents failed to do so our preliminary writ of prohibition should be made permanent.

In determining the intention of the General Assembly with respect to whether § 49.230 or § 228.120(2) applies in this situation we have considered the relevant chapters and sections of the statutes contained in Title XIV, Roads and Waterways, the provisions of Chapter 536, and the general case law in this and related fields of the law.

Section 228.120(2), upon which respondents rely, is found in Chapter 228, Establishment and Vacation of Roads, under the subtitle Public Roads. Sections 228.010-228.190, which compose this subtitle, constitute what is generally referred to as the “road law.” Various sections of the subtitle relate to the procedure for establishing “all public roads, except state roads,” either by petition signed by at least 12 freeholders of the township or townships through which the proposed road may run, or by condemnation; procedure for vacating such road, changing its route, etc., with provision for recognition of “legally established roads” based on user and for abandonment and vacation of public roads based on nonuser.

Section 228.120(2), and not § 49.230, prescribes the procedure to be followed for review of an order of a county court vacating a public road, as that term is used in the “road law,” i. e., the statutes relating to the establishment, vacation or change of a public road. Ross v. Conco Quarry, Inc., 543 S.W.2d 568 (Mo.App.1976). Section 228.-120(2), however, is not a general statute on the subject of judicial review of all county court orders of vacation of all kinds and types of public thoroughfares and ways, and was not so intended. “Public road” as the term is used in § 228.120(2) is not a generic term. Section 228.120(2) refers and applies only to the type and kind of public road established by the procedures set forth in that subtitle, i. e., public roads established by county court (or council) order on petition of 12 or more freeholders under § 228.020, or by condemnation under § 228.-100, or by prescription under § 228.190. This conclusion follows from these considerations: No other statutes providing for the establishment of other types of public thoroughfares provide for judicial review of orders of vacation by cross-reference to § 228.120(2). Some other statutes relating to other types of public thoroughfares make provision in those statutes for vacation of such thoroughfares. For instance, separate provision is made in §§ 71.240, 71.250 and 71.260 for vacation of streets in cities and towns, and in §§ 71.270, and 71.280 for vacation of streets, alleys, roads, etc. in platted subdivisions located outside the limits of any incorporated town, village or city. The provisions of the “road law” (those statutes dealing with the establishment, vacation or change of a public road) “have been regarded as distinct and discrete even when encoded with other statutes.” Ross v. Conco Quarry, Inc., supra, 543 S.W.2d l.c. 573. It is clear that the provisions of § 228.110 for the vacation of roads has application only to roads contemplated by the subtitle, Public Roads, and not to many other kinds of public thoroughfares referred to in various other sections of the statutes, viz.: state highways (§ 226.010); state roads (§ 228.020); private roads (§ 228.340 et seq.); streets in unincorporated towns and villages (§ 231.340), etc. Winschel v. County of St. Louis, 352 S.W.2d 652 (Mo.1961), illustrates this principle. There the Supreme Court held that a street in a platted subdivision located in an unincorporated area outside the limits of any incorporated town, city or village may be vacated only in accordance with the provisions of § 71.270 relating to vacation of that particular kind of street, and that the provisions of § 228.190 for vacation of public roads by nonuser are inapplicable.

Various categories of thoroughfares and ways above listed have been given independent recognition and separate and distinct treatment, under the principle “each to its own,” not only in connection with proceedings to vacate, but also in the matter of appeals. Thus, as early as 1911 the Supreme Court, in State ex rel United Rys. Co. of St. Louis v. Wiethaupt, 238 Mo. 155, 142 S.W. 323, held that an appeal of a county court judgment granting a petition for a private road could not be taken under the section of the statutes relating to appeals of a county court judgment for opening public roads, but had to be taken under the general statute relating to appeals to circuit court from the judgments of county courts; that the words “any road” were not intended to include a private road. In the course of the opinion the Supreme Court said, 142 S.W. l.c. 325: “Although placed in the same chapter and articles since 1879, all of the provisions of the law as to each kind of road are found connectedly and separately in the statutes, forming two systems, and the provisions of one are not made applicable to the other.” (Our emphasis.)

In Petition to Incorporate the City of Duquesne, 322 S.W.2d 857 (Mo.1959), transferred from In re City of Duquesne, 313 S.W.2d 65 (Mo.App.1958), an appeal from an order of a county court denying a petition filed under § 72.080 for the incorporation of a proposed municipal corporation, taken under § 49.230, was held to confer jurisdiction on the circuit court, as against the contention that petitioners should have complied with the provisions of the Administrative Procedure and Review Act, Chapter 536.

In re Incorporation of City of River Bend, 530 S.W.2d 704 (Mo.App.1975), stands for the proposition that § 49.230 is the exclusive avenue of review from a decision of the St. Louis County Council denying a petition filed under § 72.080 for the incorporation of a proposed municipality; that the losing parties did not have the option of appealing under the Administrative Procedure and Review Act, and that failure to file notice of appeal within the 10 days allowed by § 49.230 precluded appellate review.

Respondent confidently relies upon Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492 (1948), in which the Supreme Court applied the then-existing judicial review section contained in the general road law, § 8483, RS 1939, to § 7320, RS 1939 (now § 71.2701). The principal reason given for the decision was the broad language of § 8483: (“ * * * all cases * * ⅜ for any purpose by petition as now provided by law * * * any public road * * * or as an individual affected thereby in any manner * * * ). The broad language of § 8483, RS 1939, however, was repealed and the section reenacted in the more restrictive language of present § 49.230. More to the point, the Administrative Procedure and Review Act, Chapter 536, which was not mentioned in Duenke, and which respondent contends provides the proper mode of appeal, excludes the application of the general provisions of that Act where “some other provision for judicial review is provided by statute.” § 536.100. The same exclusion appears in Rule 100.03. On the basis of § 536.100 and Rule 100.03 the provisions of Chapter 536 with respect to appeal are held to have no application to agencies which have their own separate review provisions set up in their special statutes; the latter provide the exclusive method of appeal. Brogoto v. Wiggins, 458 S.W.2d 317 (Mo.1970); American Hog Co. v. County of Clinton, 495 S.W.2d 123 (Mo.App.1973); In re City of Duquesne, 313 S.W.2d 65 (Mo.App.1958), transferred to 322 S.W.2d 857 (Mo.1959). Section 49.230 is the review provision set up in the special statutes relating to county courts.

Duenke v. St. Louis County, supra, is anomalous; its rationale is out of harmony and not in conformance with the rationale of other decisions of the Supreme Court decided before and after Duenke. In view of the contrary reasoning found in the judicial literature in this field, and since Duenke was founded upon a statute since repealed, we do not consider it ruling authority on this question.

Therefore, since there is no provision in the separate code section applicable to vacation of streets in subdivisions outside the limits municipalities, § 71.270, for judicial review of orders of county councils vacating such streets or portions thereof, and since the special statute relating to judicial review of orders vacating public roads, § 228.-120(2), is not applicable to judicial review of orders made with reference to this particular type of street, the conclusion is inescapable that the two corporations aggrieved by the order of the county council were obliged to take their appeal within 10 days under the general appeals statute, § 49.230. They failed to do so and therefore the circuit court did not acquire jurisdiction.

Preliminary writ made permanent.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . All section citations refer to RSMo 1969, V.A. M.S. Section 71.270 provides that whenever a tract or parcel of land lying outside the limits of a municipality shall have been subdivided and streets, roads, etc. marked on the recorded plat of the subdivision it may be lawful for the county court to vacate the streets, roads, etc. or part of them upon the petition of the owner or owners of the ground fronting thereon, proposed to be vacated.

      .“Appeals from the decisions, findings and orders of county courts of a quasi-judicial nature affecting private rights shall be made within ten days from the date of the decision, findings or order by filing notice of appeal with the county court. * * *” [St. Louis County Council is to be regarded as a county court within the purview of this section. See In re Incorporation of City of River Bend, 530 S.W.2d 704, 708[4] (Mo.App.1975)].

      . “Any order of the county court * * * vacating a public road shall be subject to judicial review to the same extent and in the manner prescribed by chapter 536, RSMo.”

      . “1. Proceedings for review may be instituted by filing a petition in the circuit court * * * within thirty days after the mailing or delivery of the notice of the agency’s final decision. * * *” That the petition for review was filed on the 29th day is not contested.

        . § 8483, RS 1939: “In all cases wherein it is sought to vacate a public road for any purpose by petition as now provided by law, there shall exist the right of appeal from the ordering and judgment so vacating any public road, from the county court to the circuit court by any party in interest in common as remonstrators, or as an individual affected thereby in any manner,


author: DOWD, Judge.

text:
    Mary HUDSON, Plaintiff-Appellant, v. STATE SECURITY INSURANCE COMPANY, Defendant-Respondent.
    No. 38156.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 16, 1977.
    David L. Rapp, Clayton, for plaintiff-appellant.
    Edward K. Fehlig, Ziercher, Hoeker, Tzinberg, Human & Michenfelder, Clayton, David L. Pentland, St. Louis, for defendant-respondent.
   DOWD, Judge.

This is an appeal from a summary judgment entered in favor of defendant. Plaintiff brought this action for damages, alleging that automobile insurance coverage issued by defendant was in effect at the time plaintiff’s automobile sustained damage in an accident, and that defendant has refused to reimburse plaintiff according to the terms of the contract.

The undisputed facts are that on May 10, 1974, defendant issued to plaintiff a Combined Private Passenger Automobile, Bodily Injury, Property Damage and Collision Policy. On July 2, 1974, 53 days later, defendant mailed plaintiff a notice of cancellation, received by plaintiff on July 7, 1974. The effective date of cancellation indicated in the notice was July 14, 1974, 65 days after issuance of the coverage. On July 20,1974, plaintiff sustained damage to her automobile in the amount of $900, for which she sought recovery under the contract.

The trial judge granted defendant’s motion for summary judgment, finding that the contract for insurance was not in force on the date of the accident. Plaintiff appeals. We affirm.

Whether the policy was in effect on the date of the accident depends upon the application of § 379.110(3) and § 379.114 RSMo Supp. 1974, which states in part:

“379.110. Definitions
As used in sections 379.110 to 379.120 the following words and terms mean: * * * * * *
(3) ‘Policy’ means an automobile policy providing automobile liability coverage . or automobile physical damage coverage insuring a private passenger automobile owned by an individual or partnership which has been in effect for more than 60 days or has been renewed.
“379.114. Reasons for Cancellation
1. Except as provided in sections 379.110 to 379.120, no insurer shall exercise its right to cancel a policy except for the following reasons:
(1) Nonpayment of premium; or
(2) The driver’s license of the named insured has been under suspension or revocation at any time during the policy period. . . .” (Emphasis added).

The issue in this case is whether these sections require that the effective date of cancellation be within the first 60 days of coverage, thus prohibiting respondent from cancelling its insurance contract because of its failure to comply with the time requirements of said statute. Or whether it is sufficient that the company exercise its right to cancel by the mailing of the notice within the initial 60 days, when the effective date of cancellation is beyond the 60 day period. We agree with the latter construction of these statutes.

These sections have not yet been construed by the courts. The definition of “policy” in § 379.110(3), stated in the terms of the number of days it is in effect, appears to prohibit a cancellation whose effective date is beyond that restrictive number, except for the reasons listed in § 379.114.1. Plaintiff advocates this construction. However, the use of the phrase “exercise its rights to cancel” in § 379.114.1 seems to focus upon the initiation of the cancellation process rather than its conclusion on the effective date. Defendant argues that this section’s (379.114) reference to § 379.110, “except as provided in sections 379.110 to 379.120 . . .,” implies that the insurer may exercise its right to cancel coverage which has not yet matured, by the passage of 60 days, into a policy.

The separate provisions of a statute are to be construed together and harmonized as parts of a whole, State v. Paul, 437 S.W.2d 98, 103 (Mo.App.1969), and every word, clause, and sentence must, if possible, be given effect. Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo.1966). The legislature’s choice, in § 379.114.1, of the phrase “exercise its right to cancel” instead of a mere “cancel” or “effect cancellation” is significant, and its explicit reference to other sections, point to defendant’s construction. Further, C.J.S. discussion of notice of cancellation in 45 C.J.S. Insurance § 450b(l), states:

“The notice must clearly and unequivocally show a present cancellation, which will take effect at the expiration of the period of notice prescribed by the policy or statute; and the statement of a mere intent or desire to cancel at some time in the future ... is not sufficient.”

This statement is consistent with the principle that the issuing of a notice of cancellation is the exercise of an insurer’s right to cancel.

Appellant’s second argument is that the ten day notice of cancellation provision in the insurance contract causes an ambiguity, and that an ambiguous insurance contract should be construed in favor of the insured. We disagree that the insurance contract is ambiguous. It simply provides a 10 day notice for cancellation. The 10 day notice of cancellation in the insurance contract is for the benefit of the insured, in order to allow him time to obtain coverage from another company. Plaintiff is simply using the contract provision to support her construction of the statute, by implying that the statute becomes difficult to apply when such a contract provision exists. This argument would warrant consideration only if the statute required a notice provision. The statute does not require a notice provision in order to cancel during the 60 day period.

Neither party disputes the fact that §§ 379.110 to 379.120 are remedial in nature in that they limit the cases in which an insurer may cancel or refuse to write a policy. These statutes require notice and specific requirements for cancellation. See sections 379.118 and 379.120.

When a statute is remedial and its overall purpose is plain, it will be construed broadly and liberally to effect its plain purpose. Derboven v. Stockton, 490 S.W.2d 301, 309 (Mo.App.1972). “Remedial legislation will be construed so as to suppress the mischief sought to be prevented.” Derbo-ven, supra, p. 309. Our construction of these statutes would be consistent with their remedial purpose. It is clear that the purpose of these statutes is to give the insurer a 60 day probationary period to determine whether it will exercise its option to cancel the policy, or thereafter be bound except for two exceptions not applicable here. The decision to cancel would still have to be made and notice of it issued during the initial 60 days. The end result of adopting plaintiff’s position would be to reduce the insurer’s decision making time from 60 to 50 days, not by reason of the statute, but by reason of the contract provision for a 10 day notice. Further, in a case where an insurer did not include a notice provision in its policy, cancellation could conceivably be upon immediate notice. Thus we believe our construction would inure to the benefit of a policy holder and carry out the remedial purpose of the statutes.

Next, plaintiff relies on a favorable interpretation of these statutes by the Missouri Division of Insurance issued on October 16, 1974. This interpretation is as follows:

“If an insured has had protection under an automobile insurance contract for over sixty (60) days, he shall receive all the protection of § 379.120 RSMo.1973. Therefore, if the effective date of cancellation is sixty-one (61) days after the contract has been in effect, the insurance company can cancel only for the reasons enumerated in § 379.114 RSMo.Supp. 1973, and must give the thirty (30) days notice of cancellation required by § 379.-118 RSMo.Supp.1973. If the effective date of cancellation is prior to sixty-one (61) days after the insurance contract would have been in effect, the statutory safeguards shall not be available.”

When there is doubt and ambiguity as to the meaning of a statute the court should, and does, consider the practical construction placed upon the act by the agency charged with its administration, although such construction is not binding upon the court. State v. Public Service Commission, 307 S.W.2d 361[9] (Mo.App.1957). The law governing appellate court’s power to rule on the interpretation of a statute by an administrative body is promulgated in Kroger Company v. Industrial Com’n of Missouri, 314 S.W.2d 250, 254 (Mo.App.1958) as follows: “An interpretation of a statute by an administrative body does not preclude, restrict, or control the right of a complete review of such issue by the appellate court.”

We disagree with the interpretation of these statutes by the Missouri Division of Insurance. If the court were to follow this interpretation the result would be unreasonable and contrary to the obvious intent of the statutes. Both parties admit that the purpose of the statutes is remedial, to prevent cancellation at will, at any time for no particular reason. It is obvious that the purpose of the 60 day probationary period is to give the insurer an opportunity to make an underwriting determination whether to accept the insured as a risk. To hold that §§ 379.110-379.114 RSMo permit cancellation only when the effective date of a cancellation notice is within the 60 day probationary period is to oppose the plain language and intent of § 379.114 RSMo. Compliance with the statutes is had provided the insurer exercise its option to cancel during the 60 day period even though the date of cancellation is beyond the 60 day period.

This court is not bound by the administrative interpretation of these statutes. We disagree with the interpretation given here and hold that it is inconsistent with the legislative purpose and intent of the statutes.

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . Section 379.118 requires a 30 day notice of cancellation if the policy has been in effect more than 60 days.


author: HARBISON, Justice.

text:
    Heina Leroy CHRISTIAN, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee, at Jackson.
    June 6, 1977.
    Rehearing Denied July 18, 1977.
    Stanley Fink, Memphis, for petitioner.
    John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Alan E. Glenn, Asst. Dist. Atty. Gen., Memphis, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

Petitioner was convicted for the armed robbery of a dry-cleaning establishment and received a penitentiary sentence of ten years.

Both in the Court of Criminal Appeals and in this Court error was assigned on his behalf attacking the sufficiency of the evidence. He was positively identified by the victim of the crime, however, from photographs shown to her shortly after the incident, at a pre-trial line-up and in court. There was ample evidence offered on behalf of the State, if accepted by the jury, to sustain the conviction.

Petitioner denied the commission of the offense and contended that he was confined to his grandmother’s home with influenza on the date when the offense occurred and for several days prior and subsequent thereto. His mother, grandmother and a family friend all testified in support of this contention.

The trial judge gave a special instruction to the jury on the subject of alibi, which was presented and supported by competent evidence. Although the rule is different in a number, perhaps the majority, of other states, Tennessee cases have held that when the issue of alibi is clearly raised, supported by credible evidence, the trial judge is required to give an instruction thereon, whether requested or not. Poe v. State, 212 Tenn. 413, 370 S.W.2d 488 (1963); Taylor v. State, 2 Tenn.Cr.App. 459, 455 S.W.2d 168 (1970). In the recent case of Manning v. State, Tenn., 500 S.W.2d 913 (1973), the mandatory duty of the trial judge to instruct on the issue was recognized, although under the circumstances of that case the omission of the instructions was held to be harmless error, not requiring reversal.

In the present case the instruction given by the trial judge was a standard one, apparently long in use in Shelby County. It was identical to the charge approved by the Court of Criminal Appeals in the case of Rogers v. State, 2 Tenn.Cr.App. 491, 503-508, 455 S.W.2d 182 (1970), and contained the following sentence which was expressly upheld by this Court in Bolin v. State, 219 Tenn. 4, 15, 405 S.W.2d 768, 773 (1966):

“The law says that the defense of alibi should be received by the jury discreetly and cautiously because it is a defense that can be easily manufactured or fabricated.”

Petitioner excepted to this portion of the instruction in his post-trial motion. His principal assignment of error in the Court of Criminal Appeals and in this Court is that the foregoing language represents a disparagement of alibi evidence, and constitutes an improper comment thereon, in contravention of Article VI, Section 9 of the Tennessee Constitution, which prohibits comment on the evidence by the trial judge.

This contention was rejected in the Bolin case, supra. However, both in its majority opinion and in a concurring opinion, the Court of Criminal Appeals in the instant case requested this Court to reconsider the matter and to determine whether the questioned language does not indeed represent a comment prejudicial to the accused upon evidence which often, as in the present case, may comprise the principal basis of the defense.

The overwhelming weight of authority in other states where trial judges are prohibited from making comments upon the evidence is that disparaging comments or references to the issue of alibi are erroneous. See State v. Rosenbaum, 22 Utah 2d 159, 449 P.2d 999 (1969); People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974); 2 Underhill, Criminal Evidence, § 445 (5th ed. 1956); 75 Am.Jur.2d, Trial §§ 732-733; Annot., 146 A.L.R. 1377 (1943).

Although in a great many Tennessee cases statements are to be found disparaging alibi evidence upon the ground that it is easily manufactured or fabricated, a number of them did not specifically involve jury instructions. Rather, this was simply part of the rationale of the appellate court in determining the sufficiency of the convicting evidence, and in determining preponderance of the evidence upon the record. Typical of such cases are Smith v. State, 205 Tenn. 502, 522, 327 S.W.2d 308, 317 (1959) (“We have very carefully read all of this alibi evidence herein and clearly feel that it does not preponderate against the finding of the jury herein.”); Bright v. State, 191 Tenn. 249, 255, 232 S.W.2d 53 (1950); Cole v. State, 187 Tenn. 459, 462, 215 S.W.2d 824 (1948); Warren v. State, 178 Tenn. 157, 160, 156 S.W.2d 416 (1941); Thompson v. State, 24 Tenn. 138 (1844).

On the other hand, several reported decisions have dealt with the nature and type of instructions to be given by the trial judge to the jury when an alibi issue has been properly raised. In the early case of Chappel v. State, 47 Tenn. 92, 94 (1869), the following language was held to be reversible error:

“[Tjhat when the defense of an alibi is set up, the jury should look with the greatest degree of strictness, and bear in mind that the proof necessary to establish the alibi must be proven with as much certainty as the State would have to establish the guilt of the accused.”

The Court held that this language had improperly cast upon the accused the burden of establishing an alibi beyond a reasonable doubt. Also held to be erroneous was language to the effect that irreconcilable differences among the alibi witnesses destroyed their credibility. The Court did, however, approve, although it did not quote, instructions that the jury should receive proof of an alibi “with great strictness and attention, to avoid being frequently misled by it . . . .” 47 Tenn. at 95.

In the case of Davis v. State, 64 Tenn. 612 (1875), a charge was disapproved which left the impression that an alibi “should be fully and clearly made out in order to be a successful defense . . . .” In reversing the Court said:

“We have repeatedly held that when the proof fairly raises the defense of an alibi, the jury should be instructed that [if] this proof, in connection with the other proof in the cause, raises a reasonable doubt as to whether the accused was at the place of the homicide or at a different place, the defendant should be acquitted. This is a sound rule, and ought to be given to the jury in direct and unequivocal language.” 64 Tenn. at 612.

Likewise in Wiley v. State, 64 Tenn. 662 (1875), a reversal was granted because of failure of the trial judge to charge that an acquittal should follow if proof of alibi raised a reasonable doubt of guilt.

In Ford v. State, 101 Tenn. 454, 47 S.W. 703 (1898), it was held erroneous to instruct that failure of the defendant to establish an alibi was “a circumstance against him”, and error was also found in an instruction that proof of an alibi should cover the whole time of the transaction in question.

In Legere v. State, 111 Tenn. 368, 77 S.W. 1059 (1903), a jury instruction on alibi was reversed because it was held to be indistinct and not to conform to previous cases. Expressly approved in that case was an instruction which had been earlier approved in the case of Jefferson v. State, 3 Shannon’s Cas. 329, 330 (1875), to the effect that the defendant was entitled to an acquittal if proof on alibi in connection with other proof in the case raised a reasonable doubt as to the presence of the accused at the place of the homicide. In the Jefferson case, however, the Court did approve disparaging language in the alibi instructions, and stated that it was “eminently proper” that juries be put on guard and “instructed to scrutinize the evidence to make out such defense with close attention.”

In the Jefferson case, however, the Court stated:

“Of course, this caution should be accompanied, as it was in this case, with the qualification that when such defense is clearly and fully made out, it is very conclusive.” 3 Shannon at 334-335,

No such qualification accompanied the instructions in the instant case, nor did it, insofar as the opinion reflects, in Bolin v. State, 219 Tenn. 4, 15, 405 S.W.2d 768 (1966).

Probably the leading case in Tennessee dealing with the subject of jury instructions on an alibi issue is Odeneal v. State, 128 Tenn. 60, 157 S.W. 419 (1913). In that case language disparaging the defense was approved, subject, however, to the qualification stated in the Jefferson case, supra. In the Odeneal case the Court went further and said:

“It is better not to treat the alibi as a defense at all, but simply as a point of evidence, on which the jury shall consider whether a reasonable doubt is raised in their minds as to the guilt of the accused.” 128 Tenn. at 66,157 S.W. at 420.

We are convinced that this sentence states the preferable treatment of the issue and that trial courts in their jury instructions should not disparage alibi evidence or instruct the jury to treat it differently from evidence offered upon other issues.

In the majority opinion, the Court of Criminal Appeals referred to trial practices which have developed in cases involving alibi, in which the attorney general, during final argument, invites the attention of the jury to the instructions of the trial judge concerning the subject of alibi. Under the rule which we now approve, the trial judge will no longer instruct the jury as to any special method of weighing or receiving alibi evidence, but he will still instruct the jury generally on an alibi. He will also give instructions upon the credibility of witnesses and the weighing of testimony. Under such instructions it would not be improper for the attorney general to comment upon the ease with which an alibi defense may be manufactured, or upon the credibility of witnesses. Indeed, it is legitimate advocacy and an appropriate function of the final summation to point out strengths and weaknesses in the evidence and the role of the jury in reference thereto. We do not consider that the ruling which we make in this case will have any significant effect upon final arguments, except with respect to the specific instruction which we now disapprove. We regard the credibility of alibi witnesses to be a more appropriate subject for argument of counsel than for special comment by the court in jury instructions.

While we recognize that instructions disparaging alibi evidence have long been received in this state and have become almost a standard part of instructions given by many trial judges, it is difficult to escape the conclusion, reached by courts in the vast majority of states, that such instructions do indeed amount to judicial comment upon the evidence offered by the accused with reference to a particular contention advanced in his defense.

It is clear from an examination of all of the Tennessee cases that an alibi is not to be regarded as an affirmative defense, or indeed as a separate defense at all, but simply as a type of evidence offered in behalf of an accused. It should be considered along with all other evidence and weighed under the same general rules as other evidence.

We find that the instructions given by the trial judge, other than the one sentence directing receipt of the evidence discreetly and cautiously, conform to the reported cases on the subject. They do not contain the “qualification” referred to in Jefferson v. State, supra, but that clause would not be appropriate if the disparaging language is omitted. Deleting the one sentence in question, and a conjunction rendered unnecessary by the deletion, the instruction reads as follows:

“The word alibi means elsewhere, and where the proof in the case fairly raises the defense of an alibi and there is a reasonable doubt from the whole body of the proof as to the presence of the defendant at the time, near the place where the crime was committed, then the defendant would be entitled to a verdict of not guilty. If the proof of an alibi in this case, taken in connection with all the other proof, raises a reasonable doubt in your minds as to whether or not the defendant was present and committed the crime charged, then you should acquit the defendant. It is for the jury to say whether the defendant was or was not present when the alleged offense was committed, and whether he did or did not commit the same, and this you must fairly and impartially determine from the whole body of the proof.”

We believe that the foregoing language appropriately covers this subject and should be given in cases where the issue is fairly raised by the proof and where an alibi would exonerate the defendant; that is, in cases where his personal presence and participation are essential to conviction.

The Court is advised that a committee on pattern jury instructions in this state has also considered the subject of alibi, and we approve the following proposed pattern charge, after deleting all disparaging language:

“An alibi is defined as evidence which if believed would establish that the defendant was not present at the scene of the alleged crime when it allegedly occurred. If the defendant was not present when the crime was committed, he cannot be guilty.
“The burden is on the state to prove beyond a reasonable doubt that the defendant was at the scene of the crime when it was committed. If you find from your consideration of all the evidence that the state has failed to prove beyond a reasonable doubt that the defendant was at the scene of the crime when it was committed, you must find the defendant not guilty.”

Although we have concluded that the charge as given in the instant case, containing a sentence disparaging the alibi evidence, is to that extent erroneous and that instructions as to alibis in future trials should not contain such disparaging terms, we do not believe that the instruction given in the present case affected the results of the trial or warrants a reversal of the conviction under the evidence. The ruling which we have made in the present case will be prospective in operation and applicable to cases tried after the release of this opinion.

The judgment of the Court of Appeals is affirmed at the cost of petitioner.

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

ORDER

Petitioner has filed a petition for rehearing. After consideration of the same, the Court is of the opinion that said petition is not well taken and it is accordingly overruled at the cost of the petitioner.


author: INMAN, Special Judge.

text:
    Cathy H. YETT (Plaintiff-Appellee), v. SMOKY MOUNTAIN AVIATION, INC. (Defendant-Appellant).
    Court of Appeals of Tennessee, Eastern Section.
    July 1, 1977.
    Certiorari Denied by Supreme Court Oct. 3, 1977.
    Arthur C. Grisham, Jr., Chattanooga, for defendant-appellant.

      Robert L. Ogle, Jr., Sevierville, for plaintiff-appellee.
   OPINION

INMAN, Special Judge.

I

Appellee proceeded to trial of this tort action against Teledyne Continental Motors, Inc., Borg-Warner Corporation, Cessna Aircraft Company, and the appellant. After the trial commenced, she entered non-suits as to the defendants Teledyne and Borg-Warner pursuant to a settlement with these defendants. The jury exonerated Cessna, and returned a verdict against appellant for $100,000.00.

By post-trial motion appellant sought a judgment reduction of $35,000.00, the amount which the non-suited defendants paid appellee in settlement of their alleged liability.

The trial judge denied the motion and commented:

“So, the Court denies the motion to reduce the judgment because the liability was not joint and several; because the payment was made by a party held not responsible by implication; and, because in basic fairness and justice, the plaintiff as between these parties should be entitled to this amount. Defendant should not benefit from the plaintiff’s good fortune in reaching an accommodation with a potential defendant.” This appeal resulted.

II

Appellee confronts us with a motion to dismiss the appeal because appellant filed a “partial bill of exceptions”, insisting that appellate review is precluded because all the evidence adduced upon the trial is not preserved. The evidence adduced upon the hearing of the motion to reduce appears in the “partial bill of exceptions”; the sole issue presented on appeal is whether the judgment against appellant should be reduced by the amount of the settlement.

The record as filed is entirely adequate for a resolution of this issue. A transcription of all the testimony would be superfluous. We find the procedure employed by appellant commendable. The motion to dismiss the appeal and affirm the judgment is denied.

Ill

T.C.A. 23-3101 et seq. is the predicate of this action. It provides:

“23-3105. Effect of release or covenant not to sue upon liability of other tort-feasors. — When a release or covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death;
(a) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
(c) No evidence of a release or covenant not to sue received by another tort-feasor or payment therefore may be introduced by a defendant at the trial of an action by a claimant for injury or wrongful death, but may be introduced upon motion after judgment to reduce a judgment by the amount stipulated by the release or the covenant or by the amount of the consideration paid for it, whichever is greater.”

The pertinent evidence is stipulative:

Mr. Grisham: “As Your Honor will recall, this case began on August 25, 1975, with the plaintiff, Cathy Yett, proceeding to trial as to Great Smokey Mountain Aviation, Teledyne Continental, Borg-Warner Corporation and Cessna Aircraft Company. After the trial had begun, the plaintiff entered into an agreement whereby Marvel-Schebler (Borg-Warner) and Teledyne agreed or obligated themselves to make a payment of $35,000.00 to the plaintiff. A non-suit was taken by the plaintiff as to these defendants. . . . ”

Mr. Ogle: “. . . . That is substantially correct, Your Honor .... it’s true that we agreed to take voluntary non-suit as to the two defendants. They agreed to pay us $35,000.00. The non-suit has been entered.”

Whether the non-suited defendants executed and delivered release(s) or covenants) not to sue to appellee does not appear.

IV

We are constrained to disagree with the learned trial judge that reduction is inappropriate absent a relationship of joint tortfeasorship. The statute provides that a release or covenant not to sue given to one of two or more persons liable in tort for the same injury reduces the claim by the stipulated amount. (Emphasis supplied.) The statute further provides that evidence of a release or covenant may be introduced upon motion (emphasis supplied) after judgment to reduce a judgment by the amount stipulated by the release or the covenant. It will be observed that the statutes do not require an activating relationship in tort between those liable; therefore, reduction is not limited to those cases involving joint tort-feasors exclusively.

The record reveals only that appellee settled her claim against Teledyne and Borg-Warner for $35,000.00, and dismissed her action as to them. Payment had not been made at the time the motion to reduce was heard, and consequently no release or covenant had then been executed. The stratagem is neither subtle nor commendable; we have no difficulty in holding that the agreed payment by Teledyne and Borg-War ner was not a mere gratuity, as alleged, but was made by “one liable in tort”. To hold otherwise would be sheer sophistry. If the ploy adopted by appellee were to prevail the statute would be rendered utterly nugatory. Appellee alleged specific acts of negligence on the part of Teledyne and Borg-Warner, and proceeded to trial against them. The exoneration of Cessna doubtless permits appellee to indulge in the speculation that Teledyne and Borg-War ner would also have been exonerated; but this argument is irrelevant. Perhaps Teledyne and Borg-Warner, in secure hindsight, should not have settled, but appellee cannot now have dual advantage by delaying execution and delivery of a release or covenant to the statutory detriment of appellant.

We do not believe that the clear legislative intent may be thus thwarted.

While our Supreme Court has not specifically addressed the precise issue, some direction will be found in Bible and Godwin Construction Company v. Faener Corporation, 504 S.W.2d 370 (Tenn.1974) and Continental Insurance Company v. Knoxville, 488 S.W.2d 50 (Tenn.1972), wherein indemnity was ordered or reduction allowed in analogous situations. Possibly the clearest articulation is found in Layne v. United States, 460 F.2d 409 (9th Cir. 1972):

“Layne misapprehends the purpose and effect of § 4 of the Uniform Act. While § 4 changed the common law in one respect (i. e., by providing that release of one joint tortfeasor does not automatically release the other joint tortfeasors), it retained that part of the common law rule embodying the sound public policy of permitting a plaintiff to receive only the amount of his adjudged damages and no more, regardless of the source of the recovery. Since the principle is that there can be but one satisfaction for the same injury, whether or not the released party is in fact jointly liable with the defendant against whom a judgment is rendered is not relevant. In either case, to prevent recovery by plaintiff of more than his legitimate damages, “the amount paid for the release or covenant not to sue must reduce pro tanto the injured person’s judgment against another. (Citing cases.)
To require the United States to prove at trial that the released party was in fact a joint tort-feasor before § 4 of the Uniform Act can operate to cause a pro tanto reduction in the award equal to the amount recovered in the settlement would effectively thwart the major policy justifications for encouraging extra-judicial settlements — the disposition of claims without litigation, and the reduction and simplification of the issues requiring judicial determination. We do not think the language or intent of the Uniform Act requires such a result.”

The judgment of the Trial Court is accordingly reversed, and the motion to reduce the judgment is granted. Costs are taxed to appellee.

MATHERNE, P. J., concurs.

GODDARD, J., not participating.


author: DAUGHTREY, Judge.

text:
    Harry ARMSTRONG, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 2, 1977.
    Certiorari Denied by Supreme Court Sept. 26, 1977.

      David Vincent, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., John E. Rodgers, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Harry Armstrong, was convicted by a Davidson County Criminal Court jury of selling heroin, a Schedule I drug under the Tennessee Drug Control Act, T.C.A. § 52-1413(b)(10). He was sentenced to serve not less than ten nor more than fifteen years in the penitentiary and fined $18,000.00. Without challenging the sufficiency of the evidence to sustain this conviction, Armstrong raises several assignments of error regarding procedural aspects of his trial. For the reasons set out below, we find that at least two of the alleged errors have adversely affected his right to a fair trial, and accordingly modify the judgment of the trial court and remand this case for further proceedings.

I. The Wiretap Controversy

The defendant first contends that this prosecution should have been dismissed by operation of law, specifically T.C.A. § 52-1438, which bars retrial in the courts of Tennessee of a defendant who has been tried in another state or in federal court for an offense which is a violation of the Tennessee Drug Control Act. Armstrong argues that the dismissal of a federal indictment charging him, along with others, with conspiring to sell heroin and cocaine and distribution of heroin and cocaine in the Middle District of Tennessee between April 1973 and November 1974 served as the “functional equivalent” of an acquittal of those charges, for the purpose of barring a subsequent trial in state court under T.C.A. § 52-1438. We do not agree. The federal indictment in question was dismissed upon pre-trial motion of the government, when it was learned that an illegal wiretap had been placed on the defendant’s telephone. It is clear that dismissal upon pre-trial motion does not bar further prosecution because it occurs prior to the defendant’s being placed in jeopardy. Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). Retrial will not be barred by T.C.A. § 52-1438 unless jeopardy has attached in the prior trial, and the defendant is not placed in jeopardy until the jury is impanelled. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). This assignment is overruled.

During the defendant’s trial, much was made of the illegal wiretap which was the cause of the dismissal of the federal indictment, and the local police internal affairs investigations which it engendered. The single sale of narcotics which was the subject of the instant prosecution took place on February 7, 1974, a date within the period of conspiracy alleged in the federal indictment. According to the record, the police secured the cooperation of one Benjamin (Cootsie) Whitfield, who agreed to place a telephone call to the defendant’s place of business, a local service station, for the purpose of arranging a drug buy. In two recorded phone conversations with the defendant, which occurred on February 7 and which were later replayed for the jury, Whitfield first inquired about the possibility of buying a quantity of cocaine, and later agreed with Armstrong to the purchase of a relatively small amount of heroin. The exchange took place at an assigned location shortly thereafter. It was photographed and also was overheard by a police officer hidden in the trunk of Whitfield’s car. The actual transfer to Whitfield was made by Homer Goodwin, an employee at the defendant’s service station. Goodwin originally was jointly indicted with the defendant for the sale in question; his case was later severed and both he and Whitfield testified for the State concerning the details of the sale. Goodwin maintained that he was acting as Armstrong’s agent in carrying out the transaction.

In an effort to show that the illegal wiretap was installed prior to February 7,1974, the defense moved to be allowed to inspect any records in the possession of the State related to this wiretap, including transcripts of conversations and statements made by the officers involved during federal and state investigations into the illegal wiretapping. After these motions were denied, the defense made an oral motion that the Court inspect these files in camera and decide whether this material contained any evidence which might tend to be exculpatory in nature. This motion was also overruled.

When it is alleged that a prosecution is tainted by evidence which has been gathered through illegal electronic eavesdropping, the burden is on the defendant to make out a prima facie case that the illegal wiretapping did indeed take place. If this sizable hurdle can be cleared, then by law the burden of proof shifts to the State to show that none of the evidence to be introduced against the defendant is “fruit of the poisoned [wiretap] tree,” but was secured through a completely independent source or sources. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). In the instant case, the trial court specifically ruled that the defendant had failed to carry his burden under Nardone, supra, and refused to require the State to show that its case against the defendant arose from sources independent of any illegal wiretapping.

It appears from the record of the arguments below and from those before this Court that both the defendant and the trial court were unaware of the opinion of the United States Supreme Court in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). In Alderman the Supreme Court dealt with the difficulties faced by a defendant in attempting to sustain the burden of proof necessary to shift the onus onto the State to prove the independent sources of its case. Alderman holds that “surveillance records as to which any petitioner has standing to object should be turned over to him without being screened in camera by the trial judge.” 394 U.S. at 182, 89 S.Ct. at 971. The reason for requiring this information to be made available to the defendant directly was clearly set out by the Court:

An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case.

Petitioner Alderman’s conviction was remanded to the District Court for a two-pronged determination: first, whether there was any electronic surveillance in violation of his Fourth Amendment rights; and, secondly, if there was such eavesdropping, “the nature and relevance to his conviction of any conversations which may have been overheard through that surveillance.” 394 U.S. at 186, 89 S.Ct. at 973.

In the case of defendant Armstrong there is ample evidence of, and the State all but concedes, the existence of an illegal wiretap on the telephone at the defendant’s place of business. The Nardone arguments at trial centered around Armstrong’s attempt to show that the wiretap was in place prior to February 7,1974, the date of the sale which is the basis of this conviction. To aid in this effort, Armstrong had filed a timely motion for discovery of existing investigatory reports related to the wiretap, or alternatively for an in camera inspection of these records by the trial judge. The transcript of the pre-trial hearing on this motion tends to indicate that the files were highly relevant to, and very possibly conclusive on the factual issue raised. The trial judge denied the defendant’s discovery motion, apparently in response to the State’s contention that the material was not subject to discovery under T.C.A. § 40-2044, and without addressing the constitutional mandate of Alderman. Because the defendant could not show, prima facie, that Armstrong’s phone was “bugged” on February 7 or before, the trial court overruled the Nardone motion. Under the circumstances we think this was error.

The issue of the illegal wiretapping to secure information that is later made the basis of a criminal prosecution falls into a highly sensitive constitutional area under the Fourth Amendment. While we would willingly agree that an accused has no right to unlimited inspection of government files, especially when those files are likely to contain information which could affect the safety of government undercover agents and informants, it is also apparent that no harm can result from the trial court’s inspection of such records whenever it appears that their content will shed light on the very question presented for determination: whether in fact illegal taps were used against the accused and, if so, when they were put into operation. This kind of information is peculiarly available to the prosecution and will rarely, if ever, be openly or readily accessible to the accused, thus making the burden under Nardone nearly impossible to sustain in the absence of aid from the court, an institution which is charged with the ultimate responsibility of protecting rights under the federal and state constitutions. For a court to refuse to inspect relevant records in this setting strikes us as a virtual abdication of the court’s constitutional duty under the Fourth Amendment.

The holding in Alderman means that ultimately an in camera inspection by the trial judge may not be enough to fully protect the defendant’s Fourth Amendment rights, and that once the court finds, prima facie, the existence of an illegal wiretap, any surveillance records made by the government or state must be turned over to the defendant for use in rebutting the prosecution’s contention that the case is untainted by the illegal wiretap. Because the wiretap ruling below was made without benefit of court inspection of the relevant records and without compliance with the dictates of Aider-man, we find that the defendant’s rights under the Fourth Amendment and under the Due Process Clause were not fully protected. It follows that the case must be remanded for further proceedings related to the wiretap controversy.

Upon remand, the trial judge is ordered to inspect all relevant available records for the purpose of making a redetermination of the initial prong of the Alderman test: whether an illegal wiretap was installed on the defendant’s telephone on or prior to February 7,1974. If the court finds that no such wiretap existed on or before that date, the conviction will stand affirmed as modified below in Section III. If, however, the court finds that the records tend to establish the existence of illegal eavesdropping on or before the date in question, the court must then schedule a new Nardone hearing and immediately release to the defendant any Alderman material contained in those records.

At the rehearing, two results are possible. The State may be able successfully to carry the burden assigned under Nardone by establishing as the basis for the prosecution against Armstrong a source of information independent of the illegal tap. If so, the conviction will stand affirmed as modified below. On the other hand, if the State is unable to discharge its burden, the court, having found the prosecution to be tainted by the illegal wiretap, must enter an order dismissing this case.

Both the determination as to the necessity for a new hearing and any resulting order will be reviewable by this court, but the finding of the jury as to the defendant’s guilt will not be subject to further review. In the event that the case is again brought before this court, all records inspected by the trial court shall be sealed and made a part of the record on appeal.

II. Alleged Errors At Trial

The defendant alleges that prosecu-torial misconduct at trial requires the reversal of his conviction. We do not agree. From a thorough reading of the record we are convinced that although the prosecutor did wander near the borders of acceptable conduct at various intervals during his argument, defense counsel objected to these sallies. The trial court, thus alerted, cautioned counsel for the State and properly instructed the jury regarding these matters. Any error was corrected by these timely instructions.

The defendant next alleges that an agreement existed between the State and a prosecution witness, Homer Goodwin, and that the State denied the defendant due process by failing to disclose such agreement to the jury. Reviewing the record, we find that the evidence does not support this contention. When asked to reveal such an agreement, the State denied its existence, and the defendant was unable to rebut this denial. Moreover, the jury was made aware of the cooperation that had occurred between the witness and the State. On cross-examination Homer Goodwin admitted that officers of the Metro Police Vice Squad and the Federal Drug Enforcement Agency had intervened in his behalf in the matter of the revocation of his probation and that they had helped secure his release from jail. Defendant’s allegation that Goodwin had been receiving money from the federal government and the Metro Vice Squad over a period of several months is not supported by the evidence. The record does show that the witness appeared to act on the expectation that he would benefit from testifying against the defendant, and the existence of such an expectation was conveyed effectively to the jury on cross-examination. This assignment is overruled.

In another assignment of error, the defendant challenges the ruling of the trial court releasing the State from the responsibility for the attendance at trial of a key prosecution witness, Cootsie Whitfield. This witness had been in protective custody until the day he was called to testify by the State. When court was adjourned that afternoon, the defendant requested the trial court to order the State to retain Whitfield in protective custody for an additional night, so that he might be recalled the following day by the defendant for the purpose of impeaching his credibility. The State objected, saying that it had “exhausted its funds and facilities and its personnel in protecting this man.” The trial court released the State from responsibility, but “admonished” the witness to return the next morning. When Whitfield did not appear the court issued an attachment for his arrest, but the capias was never successfully executed.

While this issue addressed itself to the discretion of the trial court, “constitutional requirements are not, in this day, to be measured or limited by dollar considerations.” Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968). These words from now Justice Blackmun should guide the trial court and the prosecution in the future. However, in the present case there was no resulting prejudice to the defendant because the jury was made aware of the prior inconsistent testimony which was to be the basis of the impeachment on recall by introduction of the official, transcribed copy of that prior testimony.

III. The Sentence

Finally, the defendant contends that the State introduced evidence of crimes other than the one charged for the prejudicial purpose of influencing the jury to double the minimum sentence, as provided in T.C.A. § 40-2707. Reading the record, this Court is alarmed at the lengths to which the prosecution went in its attempt to portray the defendant as engaged in continuing, large-scale, illicit drug trafficking, when the defendant was charged solely with a single sale of a relatively small quantity of narcotic. It is the settled law in Tennessee that proof which tends to show that the accused is guilty of the commission of other crimes and offenses is generally inadmissible for the purpose of proving the defendant’s guilt of the specific crime charged. McGowen v. State, 221 Tenn. 442, 427 S.W.2d 555 (1968). Such evidence will only be admissible for the limited purpose of showing motive, guilty knowledge, intent, identity, absence of mistake, or common scheme or design. McGowen v. State, supra; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963). Some of the evidence of other sales introduced at trial tended to prove the existence of a common scheme or plan and thus may be viewed as legitimately corroborative of Homer Goodwin’s testimony that he was acting as an agent of Armstrong, a fact which would establish the defendant’s complicity in the crime charged. But we think a great deal of the other crimes evidence went beyond this limit. Cf. United States v. Pierce, 491 F.2d 1253 (6th Cir. 1974). In attempting to portray Armstrong as the area’s leading narcotics dealer, the State engaged in impermissible “overkill.” Manning v. Rose, 507 F.2d 889, 895 (6th Cir. 1974) (dictum).

We hold that the trial court erred in allowing the State to present such evidence to the jury by overruling the defendant’s objections to this presentation. However, in light of the overwhelming evidence supporting the jury’s determination of the defendant’s guilt with regard to the February 7 sale, we think that the error, as suggested in the defendant’s brief, relates solely to the penalty imposed, which was the statutory maximum possible under T.C.A. § 52-1432(a)(1)(A). Certainly we are unable to say beyond a reasonable doubt that the sentence and fine assessed were not affected by the offending evidence. Accordingly, we reduce the penitentiary sentence to five years and nullify the fine imposed, thereby assessing the minimum penalty provided by statute, subject to the consent of the State. Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956). If a new hearing on the penalty to be assessed is required, it should be consolidated for purposes of appeal with any rehearing which is necessitated under Section I of this opinion.

For the reasons set out above, the judgment of the trial court is modified as indicated and this ease is remanded for further proceedings consistent with this opinion.

RUSSELL, P. J., and GALBREATH, J., concur.

      The 1.2 grams of powder involved in the sale had a 13.9% heroin content. The toxicologist testified that a normal percentage on a “street” sale would range between 2% and 15%. The amount of money which changed hands was $125.00.


author: GALBREATH, Judge.

text:
    Kerrie Lou HAWKINS and Henry Benjamin Waggoner, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 12, 1977.
    Certiorari Denied by Supreme Court Oct. 3, 1977.
    Michael H. Adler, Lawrence Pivnick, Billy F. Gray, Earl P. Davis, H. C. Tanner Davis, Memphis, for appellants.
    Brooks McLemore, Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Joseph L. Patterson, William E. Frulla, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

GALBREATH, Judge.

Appellants, Kerrie Lou Hawkins and her male companion, Henry Benjamin Waggoner, have been convicted in the Shelby County Criminal Court for the second degree murder of Laura Gay Hawkins, the two and one-half year old daughter of Mrs. Hawkins. From their convictions and jury assessed punishments of seventy-seven years and one hundred and ninety-nine years in the penitentiary respectively, the mother and her lover appeal and contend, among other assignments of error, that the evidence did not support findings that the death was caused by them or the degree of the homicide.

It was the theory of the State that the victim died as a result of what is generally referred to as child abuse, or the battered child syndrome. The record is replete with credible testimony, including that of the defendants themselves, that the helpless victim was subjected to repeated beatings, a scalding, and other mistreatment of such intensity as to indicate a total disregard for the welfare and health of the child. Photographs of a before and after nature, showing the healthy condition of little Laura Gay before she had the misfortune to be introduced into the household shared by the defendants in September of 1975, and the pitiful condition of the maltreated body shortly after death some three months later on December 5, 1975, were exhibited as evidence of the severity of the punishment inflicted.

In spite of the terrible abuse the child had been subjected to, primarily by Wag-goner according to most of the proof, she was still physically active on the afternoon of December 5th and in no visible acute distress when the defendant Hawkins was taken to her place of employment at about 5:00 P.M. by another resident of the household, Tempe Brown, a principal witness for the State. Miss Brown, who had formerly shared Waggoner’s bed but had apparently in an agreeable manner moved out of his bedroom into another room in the home when Mrs. Hawkins took up residence, testified that when she returned from taking the co-defendant to work, Laura, who had been active and alert when she left, was unconscious and gasping for breath in the bedroom. She testified that Waggoner asked her to call an ambulance and explained that Laura had fallen down and “was in bad shape.”

The attending physician in the emergency room at Doctor’s Hospital where the victim was taken testified that when admitted the child had no pulse, no blood pressure, displayed no movement, and indicated no spontaneous breathing.

Two medical expert witnesses testified that the cause of death was due to blood loss in various interior portions of the body from multiple injuries including trauma to the head inducing bleeding on the surface of the brain and injury to the brain stem. Brain stem injury, the medical testimony suggested, did not necessarily imply a traumatic injury to that portion of the central nervous system but is descriptive of the condition the patient was observed to be in when examined on admittance to the hospital. Apparently the condition is symptomatic, and does not itself afford a clear explanation of what causes the condition. We take it that the term is somewhat akin to “cardiac arrest”, or “shock”, in that it describes a physical condition that is medically recognizable, although the observer may not know the causative circumstances.

In any event the proof leads inevitably to a conclusion that it was the accumulated effects of the prolonged beatings and resulting injuries that caused death. No single blow described by any of the witnesses would have likely been fatal. Rather it was the gradual deterioration of the health of the victim over a lengthy period during which she literally bled to death from internal injuries that weakened her system and caused death. The evidence supports the jury’s conclusion, manifested by their imposition of a harsher sentence in his case, that the defendant Waggoner was primarily responsible for inflicting the many injuries.

The evidence before us also supports the jury’s determination that Kerrie Lou Hawkins shares the criminal responsibility for the death of her child. Although placing most of the blame for the injuries inflicted on her paramour, she testified to her many assaults on the baby, including one occasion when she bruised her fingers, causing them to swell. Her testimony corroborated in detail a statement obtained from her by police and the testimony of the co-defendant and Tempe Brown as to her personal role in mistreating Laura Gay, as well as her acquiescence in the mistreatment administered by both Waggoner and Ms. Brown. If nothing else, Kerrie Lou Hawkins was clearly an accessory to the criminal acts of Waggoner.

That the manner of death supports conviction for murder in the second degree and not just manslaughter, as urged by other assigned error, is well settled. Even though the actions of Waggoner in obtaining medical attention would seem to militate against any malicious intent to cause the victim’s death, it has been repeatedly held by our Supreme Court that the requisite malice and intent may be inferred from the act of slaying itself (Witt v. State, 46 Tenn. 5 (1868)) so as to support second degree murder.

Actually, our Supreme Court has even gone further, and in a case remarkably similar to this one, insofar as the events leading up to the death of the victim were concerned, held that proof of the prolonged beating of a child until the infant eventually died, will support a conviction for murder in the first degree. LaChance v. State, 524 S.W.2d 933 (Tenn.1975).

We affirm the grade of the offense as set out in the indictment and found in the verdict to be murder in the second degree.

We overrule the assignments challenging the admissibility of the pictures showing the pitiful corpse of the innocent victim. They were relevant and material to show the extent of the wounds inflicted on the body. See Graves v. State, 489 S.W.2d 74 (Tenn.Cr.App.1972). The photographs have probative value on an issue in dispute. When photographs, gruesome in nature and likely to appeal to the emotions of the jury, are not probative of some contested factual issue they are not admissible. If probative, they are. See Palmer v. State, 1 Tenn.Cr. App. 223, 435 S.W.2d 128 (1968). In this, they are no different from other demonstrative evidence. If the evidence is necessary to develop some relevant point that the jury needs explained, it is admissible. If the evidence is not relevant or probative on some issue in dispute, it is not.

We have carefully reviewed the entire record and have considered all the assignments of error.

We affirm.

RUSSELL, P. J., and DAUGHTREY, J., concur.