author: GREENE, Judge.

text:
    In re the MARRIAGE OF Margie Lee HOGLEN, Petitioner-Appellant, and John Hoglen, Respondent.
    No. 13509.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 29, 1984.

      Robert W. Stillings, Springfield, for petitioner-appellant.
    H. Lynn Henry, Henry, Henry & Henry, P.C., David Dunlap, West Plains, for respondent.
   GREENE, Judge.

Prior to March 10, 1978, Margie Lee Ho-glen and John Hoglen were husband and wife. On that date, acting on a joint petition, separation agreement, and addendum thereto executed by the parties, the trial court entered a judgment of legal separation which provided, among other things, that Margie receive 1) custody of the minor child of the parties, 2) $300 a month as child support, and 3) $100 a month as maintenance. In addition, John was ordered to keep in force a health insurance policy providing benefits for Margie and the child.

On January 17, 1980, the trial court, after a hearing on a motion filed by John to convert the decree of legal separation into a decree of dissolution, sustained the motion and entered a decree of dissolution. The pertinent portions to this appeal read as follows:

The Court further finds that coverage under the current policy of hospitalization insurance referred to in Paragraph 13 of the Separation Agreement dated December 2, 1977, will cease as to petitioner-wife upon the dissolution of the marriage of the parties; that the petitioner-wife has various medical problems which may require medical care; and that the current cost of obtaining comparable medical insurance coverage for petitioner-wife is $77.40 per month.
It is further ordered that the parties continue to perform and abide by the other terms and conditions of the Judgment and Decree Of Legal Separation filed March 10, 1978, which judgment and decree incorporated the parties’ Separation Agreement and Addendum thereto; provided, however, the said Judgment And Decree Of Legal Separation is modified in one respect, that is:
Petitioner-husband shall pay to petitioner-wife maintenance in the sum of $77.40 per month, payable on the 15th day of each month beginning February 15, 1980, subject to modification; and henceforth petitioner-husband shall have no obligation to provide petitioner-wife health and/or hospitalization insurance.

John began making the payment of $77.40 in lieu of providing health insurance for Margie, and continued to pay her the $300 a month child support and $100 a month maintenance provided for in the judgment of legal separation. The cost of health insurance for Margie increased each year until it reached $139.83 a month. John then changed attorneys. His new attorney interpreted the divorce decree to mean that the $100 a month maintenance provision in the initial separation decree no longer applied, and that John’s only maintenance obligation was the $77.40 per month mentioned in the dissolution decree. The new attorney then sued Margie on John’s behalf.

Count I of the petition was a motion to modify the divorce decree by reducing the child support and reducing, or eliminating, maintenance, citing changed economic circumstances of the parties as the basis for the motion. Count II asked for reimbursement to John of over payments allegedly made to Margie. Margie then filed a counter motion to modify the divorce decree by increasing the amount of child support and maintenance awarded to her in the decree. She also filed a motion for a nunc pro tunc order correcting the dissolution decree. This motion was sustained.

The pertinent portions of the nunc pro tunc order amending the dissolution decree read as follows:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Decree of Dissolution of Marriage entered on January 17, 1980, be amended in the following respects:
1. The following provisions shall be deleted:
‘It is further ordered that the parties continue to perform and abide by the other terms and conditions of the Judgment and Decree of Legal Separation filed March 10, 1978, which judgment and decree incorporated the parties’ Separation Agreement and Addendum thereto; provided, however, the said Judgment and Decree of Legal Separation is modified in one respect, that is:
Petitioner-husband shall pay to petitioner-wife maintenance in the sum of $77.40 per month, payable on the 15th day of each month beginning February 15, 1980, subject to modification; and henceforth petitioner-husband shall have no obligation to provide petitioner-wife health and/or hospitalization insurance.’
2. In lieu of said provisions, the following provisions shall be inserted:
‘It is further ordered that petitioner-husband shall pay to petitioner-wife maintenance in the sum of $77.40 per month, in lieu of the policy of hospitalization insurance referred to in paragraph 13 of the Separation Agreement executed by the parties on the 2nd day of December, 1977. Said payments shall be payable on the 15th day of each month, beginning February 15, 1980, subject to modification by the Court.
It is further ordered that all other terms of the Separation Agreement shall remain in full force and effect, including the $100.00 per month maintenance provision contained in Paragraph 12 of the Addendum to Separation Agreement. Total maintenance shall be $177.40 per month. All other orders contained in the Decree of Legal Separation dated March 10, 1978, shall also remain in full force and effect.’
3. In all other respects, the Decree entered by this Court on January 17, 1980, shall remain in full force and effect.

A successor trial judge heard evidence on the pleadings of John and Margie, and thereafter entered judgment in favor of Margie and against John on Counts I and II of John’s petition, and for John and against Margie on her motion to modify. Each party was ordered to pay their own attorney fees.

Margie appealed, claiming the judgment was not supported by the evidence and was against the weight of the evidence, and that the denial of attorney fees to her was an abuse of the trial court’s discretion.

The judgment of the trial court should be upheld if there is substantial evidence to support it, if it is not against the weight of the evidence, and if the judgment is not based on any erroneous declaration or application of law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Our review of the record convinces us that the evidence fully justified the result reached. Even though Margie’s health insurance premiums had risen by $62.43 a month since the date of the decree, her other expenses had decreased. She had sold her home, receiving $34,000 from the sale, and had purchased another home jointly with her mother. Margie only paid $14,000 as her share of the purchase price. She bought a new car for $8,200, and paid cash for it. She pays no rent or mortgage payments, and her living expenses are reduced since they are shared by her mother. We fail to see where Margie’s economic circumstances have worsened since the date of the dissolution. Margie was required to prove that enforcement of the present decree was unreasonable. Doss v. Doss, 625 S.W.2d 637, 639 (Mo.App.1981); § 452.370, RSMo 1978. She failed to do so.

As to Margie’s claim for attorney fees, an order requiring one party to a motion to modify to pay attorney fees and litigation expenses of the other is justified only upon the showing of “very unusual circumstances” justifying deviation from the general rule that each party to litigation bear his own costs. Bryson v. Bryson, 624 S.W.2d 92, 99 (Mo.App.1981). We do not find such circumstances here.

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Margaret C. SMITH, Plaintiff-Appellant, v. DORA R-III SCHOOL DISTRICT, Defendant-Respondent.
    No. 13461.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 29, 1984.

      J. Michael Payne, Limbaugh, Limbaugh, Russell & Syler, Cape Girardeau, for plaintiff-appellant.
    R. Jack Garrett, R. David Ray, David H. Dunlap, Garrett & Ray, West Plains, for defendant-respondent.
   GREENE, Judge.

Margaret C. Smith appeals from the trial court’s judgment denying her relief on all issues raised in her suit against Dora R-III School District. In her petition, Smith sought reinstatement to her former position as elementary school principal for the school district, and requested damages. Prior to trial, Smith dismissed Count I of her petition which requested reinstatement, and went to trial on the damage issue alone.

On appeal, Smith contends that the trial court erred as a matter of law in 1) entering judgment against her because she was not given proper legal notice that she would not be rehired as elementary principal for the 1982-83 school year, and 2) improperly admitting evidence that part of her attorney fees were being paid by the Missouri State Teachers Association, because evidence of reimbursement from a source independent of the wrongdoer is not admissible to decrease damages for which the wrongdoer is liable.

Viewed in the light most favorable to the prevailing party, Porter v. Posey, 592 S.W.2d 844, 849[3] (Mo.App.1979), the facts are that in the school years 1980-81 and 1981-82, the school district employed an elementary school principal (Smith) and a secondary school principal (Ault). The written school board minutes reflect that on February 15, 1982, the board, because of budget constraints, decided to eliminate one of the principal positions and to have one principal handle both the elementary and secondary school positions. At the same meeting, a discussion was held on whether to offer Ault the combined principal job. It was decided to wait until Ault found out whether his job application for a position in Saudi Arabia had been accepted before offering him a contract. The minutes of this meeting were approved at a board meeting on March 9. Smith and Ault were present at this meeting. Both were given copies of the February 15 minutes and Ault explained to the board that he would not know about his overseas job application until April, but that if not accepted for the overseas job, he wished to be considered for the combined principal position. The minutes of the March 9th meeting state that “[i]n view of the fact that Principal Smith wants to stay at Dora and teach in the Elementary, one of the nontenured teachers must be eliminated in order to make room for Mrs. Smith who is tenured.” It was then decided that Reda Lovan, one of the non-tenured teachers, would not be rehired to make room for Smith, and that a contract as an elementary teacher would be offered to Smith. Copies of these minutes, which were approved, were given to Smith and Ault.

In addition, Smith, on March 10, 1982, was told by the School District Superintendent, Roy Manion, that the single principal system was being adopted and that she would not be reemployed as elementary principal, but would be offered a contract as an elementary teacher. The contract was offered and Smith accepted it under protest, contending that she was entitled to be rehired as elementary principal since she had not received written notice, as required by law, of the decision to eliminate the elementary principal position. Ault was eventually hired as combined principal. Smith honored her contract as elementary teacher for the 82-83 school year, but found other employment for the following year.

Smith’s salary as principal for the 1981-82 school year was $17,000 and an additional 9V2% of that amount was paid by the board to the teacher retirement fund for her benefit. As an elementary teacher for the 1982-83 school year, she was paid $11,-950 plus the 9¾⅛% retirement contribution. Her attorney fees and other legal expenses for bringing suit against the board were approximately $2,600.

Smith claims she was not given adequate notice concerning her termination as elementary principal, as required by § 168.-101.3. This provision relates to the procedure for reemployment or termination of non-metropolitan school district certificated employees who do not come within the protections afforded by the Teacher Tenure Act. §§ 168.102 — 168.130. Section 168.-101.3 states that a school board “shall notify each such certificated employee in writing concerning his reemployment in his present staff position or lack thereof on or before the fifteenth day of April of the year in which the contract then in force expires.” The statute further provides that “[failure ... to give notice constitutes reemployment on the same terms and in the same staff position as those provided in the contract of the current fiscal year....” This statute insures timely notification to certificated employees not covered under the Teacher Tenure Act, such as a principal, regarding their next year’s employment, while reserving to non-metropolitan school districts the flexibility needed to adequately fill administrative positions.

While the board did not provide Smith with explicit written notice of her termination as principal, she was furnished a copy of the minutes of the board meeting in which it was decided to eliminate the elementary principal position by combining it with the high school principal position and to offer the combined job to Ault. Smith also advised Superintendent Manion concerning the teaching position she would prefer to occupy in the following school year. In addition, Smith was given, and signed, a contract to teach the fourth grade during the 1982-83 school year. These measures were all taken before the April 15 deadline set out in § 168.101.3, although Smith failed to sign and return the contract until May 26.

While § 168.101.3 requires that a certificated employee be notified in writing, it does not specify what shall be contained in the notice. Since the statute fails to provide the required contents of the notice, it can be presumed that any written notice which can be reasonably understood to terminate the employment is sufficient. See Lovan v. Dora R-III School Dist., 677 S.W.2d 956 at 958 (Mo.App.S.D.1984), interpreting § 168.126, the notice provision for reemployment or termination of probationary teachers under the Teacher Tenure Act, and the authorities cited therein.

We hold that the written minutes of the board meetings of February 15 and March 9, 1982, upon delivery to Smith, constituted sufficient written notice, so as to comply with the dictates of § 168.101.3, informing her that she would not be reemployed as elementary principal for the following year. See Ambrose v. Board of Education, 51 Or.App. 621, 626 P.2d 916, petition for review denied, 291 Or. 309, 634 P.2d 1346 (1981), where the Oregon Court of Appeals reached the same conclusion as we do here, based on similar facts and a similar statute.

In reaching this result on Smith’s first point relied on, the issue raised in her second point concerning attorney fees need not be addressed, since Smith was not entitled to any damages, including attorney fees, unless the school board was liable to her. It was not.

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S.


author: CROW, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ezell APPLEWHITE, Appellant.
    No. 13632.
    Missouri Court of Appeals, Southern District, Division Three.
    Nov. 30, 1984.
    Motion for Rehearing or Transfer Denied Dec. 20, 1984.
    Application to Transfer Denied Jan. 15, 1985.

      Nancy Hentig Narrow, Public Defender, Judicial Circuit 33, Daniel A. Beatty, Asst. Public Defender, Judicial Circuit 33, Benton, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CROW, Presiding Judge.

Appellant, tried by the court- without a jury, was found guilty of the class C felony of receiving stolen property of a value of $150 or more, § 570.080, RSMo 1978, and sentenced as a persistent offender, § 558.-016, RSMo Cum.Supp.1983, to 15 years’ imprisonment. Appellant maintains the evidence was insufficient to support the finding of guilty, and he complains about his cross-examination by the prosecuting attorney.

In determining the sufficiency of the evidence after a finding of guilty, we accept as true all evidence tending to prove the accused’s guilt together with inferences favorable to the State that can be reasonably drawn therefrom, and we disregard all contrary evidence and inferences. State v. Giffin, 640 S.W.2d 128, 130[2] (Mo.1982).

So viewed, the evidence establishes that between 5:30 p.m., August 6,1983, and 9:00 a.m., the next day, a Bogan amplifier, microphones and related paraphernalia, of an aggregate value exceeding $150, were stolen from the West End Baptist Church in Sikeston.

Between 3:00 and 4:00 p.m., August 29, 1983, appellant, accompanied by another man, entered Brown’s Automotive, an automobile body repair shop operated by Milton Brown in Sikeston. Brown, who was working on an automobile at the time, testified that appellant asked whether he (Brown) would be interested in “some amplifiers or a mike.” Brown expressed interest in a microphone if it “would take heat from the outside sunlight on it without squealing.” Brown quoted appellant as saying he “would bring it by.”

Appellant and his companion (with whom Brown was unacquainted) then departed.

According to Brown, appellant returned later that afternoon, alone, and brought in an amplifier, microphones and other paraphernalia, placing them on the hood of a customer’s car. Brown explained: “He was trying to get them hooked up to where he could show me how the mike run. I didn’t want to buy anything that wasn’t no good.”

Meanwhile, detective Benny Thurston of the Sikeston Public Safety Department, in response to a phone call from Brown that appellant “was there trying to sell a PA system,” arrived at Brown’s Automotive and, unbeknownst to appellant, began watching appellant and Brown.

Thurston related that appellant “had the microphones in his hands like he was getting ready to hand them to Mr. Brown.” At that point, Thurston confronted appellant, asking appellant where he had gotten the equipment. Thurston quoted appellant as saying he “got it from a guy in Malden.” Thurston thereupon arrested appellant “for investigation of receiving stolen property.”

The amplifier, microphones and allied items were seized by police and later identified as the property of West End Baptist Church by a church official.

Appellant, testifying in his defense, said he was riding his “10-speed” on August 29, 1983, when a “fellow named Green,” who “was in a car,” stopped him and asked whether he knew Brown. According to appellant, he replied that he did, and he led Green to Brown’s Automotive. Upon arrival, Green asked appellant to see whether Brown was there. Appellant entered, located Brown, then stepped back outside and told Green.

Appellant testified that Green thereupon took three sacks out of the back seat of his car, carried them into the building and “put them on the hood of this car that Mr. Brown was working on.” At that point, according to appellant, Green instructed him to tell Brown that he (Green) “was wanting to sell it for $200.” Green then departed, explaining that he was going to a service station to get gasoline.

Appellant recounted that he then got Brown’s attention and relayed Green’s message. Appellant and Brown then removed the apparatus from the sacks and were “working the knobs and everything” when the arrest occurred.

Appellant testified he told the detective that Green was trying to sell the equipment to Brown, and that he (appellant) had not brought the items there.

Appellant’s attack on the sufficiency of the evidence, as we understand it, is that it would have been impossible for him to deliver the amplifier, microphones and other equipment to Brown’s Automotive on a bicycle. Appellant argues that his testimony about arriving there on a bicycle was corroborated by Brown, who testified that he saw a bicycle outside his shop when appellant was arrested and that appellant asked him to take the bicycle to his father. Appellant also asserts that Brown corroborated his testimony about Green, in that Brown testified appellant was accompanied by another man when appellant first entered Brown’s Automotive.

Whether appellant’s version of the events of August 29 was true, or the version by Brown and Thurston was true, was for the trial court to decide. State v. Fingers, 564 S.W.2d 579, 584[14] (Mo.App.1978). The trial court, as trier of the facts, had leave to believe or disbelieve all, part or none of the testimony of any witness. State v. Gamble, 649 S.W.2d 573, 576-77[9] (Mo.App.1983).

The trial court, after hearing the testimony, announced to appellant:

“I think you are a smart enough man to know that anybody walking couldn’t really buy that story. Therefore, based upon the evidence that’s before this Court, I have no alternative but to find you guilty of the charge beyond a reasonable doubt. In all truth, Mr. Applewhite, I just don’t believe it could have happened that way.”

It was for the trial court, not us, to weigh appellant’s contention that he could not have hauled the stolen equipment to Brown’s Automotive on his bicycle. The trial court had full opportunity to consider the point, as the equipment was brought to court and received in evidence at appellant’s trial.

It should be noted, however, that appellant’s guilt did not hinge on whether it was possible to carry the stolen items to Brown’s Automotive on a bicycle. Neither Brown nor Thurston testified that he saw how the items reached Brown’s Automotive. The items were already there when Thurston arrived, and all Brown knew was that appellant had carried them inside. It is entirely possible that the items were brought to Brown’s Automotive by automobile, at appellant’s direction, and that appellant carried them in, alone. Appellant, by his own testimony, had been in the company of a man driving an automobile earlier that afternoon. One can accept the testimony of Brown and Thurston as true without having to assume that appellant carried the equipment to Brown’s Automotive by bicycle.

A more fundamental question—not raised by appellant—is whether the evidence was sufficient to support a finding that he knew the equipment was stolen or believed that it was. That state of mind is one of the elements of the offense of receiving stolen property. § 570.080.1, RSMo 1978; State v. Freeman, 667 S.W.2d 443, 446[1] (Mo.App.1984).

In that regard, we note that suspicious conduct, deceptive behavior and false statements to police can give rise to an inference of guilty knowledge by a defendant. State v. Davis, 590 S.W.2d 418, 419[3] (Mo.App.1979).

Here, at the time of his arrest, appellant told Thurston that he had gotten the equipment “from a guy in Malden.” Yet, at trial, appellant disavowed any knowledge of the equipment until (according to appellant) Green carried it into Brown’s Automotive.

Additionally, Brown testified that appellant, during the incident at Brown’s Automotive, stated that the equipment was not stolen. That statement by appellant was, of course, false, as there is no question that the equipment was stolen from West End Baptist Church.

Furthermore, had the events of August 29, 1983, occurred as testified to by appellant, one would have expected Green to return to Brown’s Automotive to inquire whether Brown was going to purchase the equipment. There was, however, no testimony that Green ever came back. Accepting appellant’s version requires an assumption that Green abandoned a sound system for which he was asking $200, the incredibility of which is self-evident.

We are, consequently, persuaded that the evidence is sufficient to support a finding that appellant knew the equipment was stolen or believed that it was. Appellant’s challenge of the sufficiency of the evidence is, accordingly, denied.

Appellant’s second point asserts the trial court erred in allowing the prosecuting attorney, during the cross-examination of appellant, to “force” appellant to admit that the description appellant had given of Green was so similar to appellant himself that the trial court would “deduce” that appellant “was not telling the truth.”

The first frailty in this point is that the objection appellant makes on appeal was not voiced at trial. The only objection below was that the prosecuting attorney, in describing appellant’s facial hair, referred to it as a “beard,” when it should have been characterized as “sideburns and a mustache.” A point on appeal must be based upon the theory voiced in the objection at trial, and a defendant cannot expand or change on appeal the objection as made. State v. Cannady, 660 S.W.2d 33, 37[6] (Mo.App.1983); State v. Jackson, 635 S.W.2d 495, 496[3] (Mo.App.1982).

However, even had the point been preserved for appellate review, it would be unavailing. A defendant in a criminal case who elects to testify in his own behalf may be cross-examined as to any matter referred to in his direct examination and may be contradicted and impeached as any other witness. § 546.260, RSMo 1978; State v. Rice, 522 S.W.2d 335, 337-38[5] (Mo.App. 1975). In such cross-examination, the State is not confined to a categorical review of the evidence given by the defendant on direct examination but may examine him in detail as to matters generally referred to in his examination in chief. State v. Murphy, 592 S.W.2d 727, 731[4] (Mo. banc 1979).

Appellant, having testified at length about the actions of Green, was subject to cross-examination concerning Green, including Green’s physical description and identifying characteristics. The point is denied.

Judgment affirmed.

PREWITT, C.J., and HOGAN, TITUS and MAUS, JJ., concur.

      . Since § 570.080, RSMo 1978, became effective (January 1, 1979), it has been unnecessary, in a prosecution for receiving stolen property, to prove that the accused received the property from another culprit, that is, the present statute does not require a two-party transaction. State v. Sours, 633 S.W.2d 255, 257-58 (Mo.App.1982); State v. Davis, 607 S.W.2d 149, 153[6] (Mo. banc 1980). Now, one is guilty of receiving stolen property if he retains the property of another with the purpose of depriving the owner of a lawful interest therein, knowing that the property has been stolen or believing that it has been stolen. Sours, 633 S.W.2d at 257-58; Davis, 607 S.W.2d at 153.


author: TURNAGE, Chief Judge.

text:
    Nancy Ellen SWINFORD, Appellant, v. Darrel Joseph SWINFORD, Respondent.
    No. WD 35267.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.

      Betsy Ann T. Stewart, Independence, for appellant.
    William A. Mayer, Kansas City, for respondent.
    Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.
   TURNAGE, Chief Judge.

The trial court granted a Dissolution of Marriage to Nancy Swinford and Darrel Swinford, and subsequently ordered the marital real estate to be sold. The court directed each party’s share to be subject to certain expenses. Nancy appeals. Reversed and remanded.

The court dissolved the marriage on April 29, 1982. The decree contained the property settlement agreement entered into by Nancy and Darrel as it applied to the real estate. The decree described the marital real estate only in terms of a postal address. The decree stated that the real estate was listed for sale and that the parties agreed to continue listing the property for sale, and to do everything necessary to help facilitate a sale. Darrel was given the right to occupy the real estate pending the sale, with the obligation to pay the mortgage payments, taxes, and insurance until the sale was closed. The decree did not contain any provision that divided the real estate or allocated its ownership between the parties, nor did it provide for the disposition of the proceeds of a sale.

On December 3, 1982, Nancy filed a motion asking the court to appoint a receiver to sell the real estate, and on December 20, 1982, the court entered an order appointing a receiver to sell the property. This order did not specify any terms of sale nor direct that such sale be public or private.

On July 27 and 28, 1983, the court heard a number of motions, including a motion by the receiver for an order to sell the property and for distribution of the proceeds. The receiver testified that he was a licensed real estate broker, and that he had appraised the real estate at $88,500. The receiver testified that he had agreed orally with Darrel to sell him the property for $77,880, and that he had not attempted to sell the property to anyone else. The receiver stated that he agreed to sell to Darrel at the reduced price because if the property were sold to a third party, at least $10,000 of expenses would be incurred.

The court recessed the hearing to give the receiver and Darrel an opportunity to sign a contract for the sale of the property for $77,880. The court thereafter entered an order approving the sale to Darrel for $77,880 and provided that the receiver first pay a small balance to Mastercard from the sale proceeds, and thereafter divide the proceeds equally between the parties. The court ordered Darrel’s share of the proceeds to be subject to a $500 payment to Nancy for compensation of a- tractor, and payment to Nancy of back child support. The court ordered Nancy’s share to be subject to $2,400 for Darrel’s attorney fees, $929 for the receiver’s fee, and $585 for the receiver’s attorney fees. Darrel was also ordered to pay the receiver $500 from his share. The judgment did not determine the ownership of the real estate but only divided the proceeds.

Nancy has appealed both the sale of the property to Darrel for $77,880, and the fees ordered paid from her share.

Before Nancy’s assertions of error can be reached, a more fundamental defect is apparent. At the time the court appointed a receiver to sell the property, the ownership of the real estate had not been decided. Until the court divides the real estate and vests the ownership in one party or the other or in the parties in definite proportions, the court has not exhausted its jurisdiction in the dissolution case with respect to the real estate. State ex rel. Brewer v. Sheehan, 565 S.W.2d 850 (Mo.App.1978). Until the court determines the ownership of the real estate, it has no jurisdiction to order its sale. See id. at 851. This follows from the fact that the court still retains jurisdiction over the real estate until its ownership is decided.

Because the court failed to dispose of the real estate in the dissolution decree, it had no jurisdiction to appoint a receiver and order the sale of the property. A judgment entered by a court without jurisdiction to act on the matter is void. School District No. 46 v. Stewartsville School District, 232 Mo.App. 631, 110 S.W.2d 399, 404[7] (1937). For that reason the judgment must be reversed and this cause remanded for further proceedings.

In view of the remand, it is necessary to discuss the judgment entered lest the trial court conclude that it could simply distribute the real estate and then enter the same judgment. It should first be noted that the trial court can order a sale of marital real estate. This court has held that a trial court may order the sale of real estate under the power vested by § 452.-330, RSMo 1978 (now Supp.1984) to divide the marital property. Wilhoit v. Wilhoit, 599 S.W.2d 74, 80[8-11] (Mo.App.1980). In Flack v. Flach, 645 S.W.2d 718 (Mo.App.1982), the court amended the decree to include a provision that the trial court appoint a commissioner to sell the home if the parties could not agree on a sale price. Id. at 721[6]. Other states with statutes similar to § 452.330 have recognized the trial court’s power to order a sale of real estate as an adjunct to its power to divide marital property. See Jekot v. Jekot, 32 Colo.App. 118, 507 P.2d 473 (1973); Rummel v. Rummel, 265 N.W.2d 230 (N.D.1978); Zillert v. Zillert, 395 A.2d 1152 (Me.1978); Walker v. Walker, 119 N.H. 551, 404 A.2d 1103 (1979).

While the court has the power to order a sale of real estate to accomplish the division of property, no statute or rule prescribes the procedure to be followed. This court will not attempt to prescribe such a procedure because of the various factual situations which may arise. Generally, however, it may be said that there are at least two conditions required to be established before the court may order a sale: (1) a finding that the property cannot be divided in kind; and (2) a finding that a sale would be in the best interest of one or both of the parties. Such findings would need a sufficient evidentiary foundation.

Further, the order requiring a sale should specify the terms—whether or not the sale is to be for cash and whether it is to be a public or private sale. Generally, a judicial sale is required to be made at public auction. 50 C.J.S. Judicial Sales § 16 (1947).

The court should appoint the person who is to cpnduct the sale. In this case, the court appointed a receiver. Section 515.240, RSMo 1978, provides for the appointment of a receiver in certain instances. However, none of those instances were present in this case. For that reason, when the court orders a sale it should avoid titles such as receiver, referee, or master, unless such appointment is intended to fulfill the duties of such office set out by statute or rule.

Unless a statutory receiver, referee, or master is to be appointed, the person named to conduct the sale could be designated as a commissioner. Obviously, the appointment would entitle the person to a reasonable fee to be fixed by the court. As stated, the court’s order of appointment should fully provide for the method and terms of the sale.

In this case, the court subjected Nancy’s share of the proceeds to payment for the receiver’s attorney fees. The receiver had not obtained court authority to employ an attorney, nor had the receiver made any showing that he needed to employ an attorney. The receiver was a licensed real estate broker and the only function he was shown to have performed was an appraisal of the property and the execution of a sales contract with Darrel. Real estate brokers are authorized to draw form contracts and it is not shown the contract in this case was beyond the broker’s authority to draw. In addition, each party was represented by counsel and there is no showing that the receiver could not have obtained any necessary assistance from one or both of such counsel. Before the person appointed to sell the property retains an attorney to assist him in his duties, he should show the court the necessity to retain an attorney and obtain the court’s approval. The court may thereafter allow reasonable attorney fees.

Further, the court authorized a sale to Darrel for about $10,000 less than the receiver had stated was the reasonable value of the real estate. The reasoning for the price reduction was that such amount would have been expended had the property been sold to a third person. This completely overlooks that this resulted in Darrel receiving a windfall in that he obtained property worth $88,500 for $77,880. While it may be true that the described expenses might have been incurred if the property had been sold to a third party, such reasoning does not authorize a windfall to Darrel. The court said it was going to divide the proceeds equally, but the net result was that Darrel obtained an advantage of almost $10,000.

The court ordered $2,400 to be deducted from Nancy’s share for Darrel’s attorney fees. The dissolution decree provided that each party’s attorney fees incurred up to the time of the dissolution would be deducted from the sale proceeds, but attorney fees incurred after the dissolution would be payable by each party. This award in favor of Darrel was inconsistent with the decree and was improper. The order on distribution of property as it related to the payment of attorney fees was final and not subject to modification. Section 452.330.4, RSMo Supp.1984. The order was an attempt to modify the distribution and is not allowed. This is true even though the court failed to distribute the real estate. This has no effect on the other provisions of the decree relating to the division of property because those provisions have become final.

As stated previously, the trial court should have given the receiver instructions as to the conduct of the sale. This would have avoided the receiver making a private sale to Darrel without making any effort to find other buyers or to obtain a better price.

While a precise procedure is not formulated herein on the conduct of a sale, guidance on conducting a judicial sale may be found in 50 C.J.S. Judicial Sales (1947). Of necessity the trial court is vested with discretion in whether or not to order a sale and in giving the proper instructions if it does order a sale.

On remand, it will be necessary for the court to apportion the marital real estate between the parties. Thereafter, the court will be free to consider on proper motion whether or not a sale of the property should be ordered, and if so, the terms of the sale.

The judgment is reversed and this cause is remanded for further proceedings.

All concur.


author: MANFORD, Judge.

text:
    COX STANDARD STATION, INC., Appellant, v. David A. TAYLOR and Tina M. Taylor, Respondents.
    No. WD 35694.
    Missouri Court of Appeals, Western District.
    Dec. 4, 1984.
    Robert E. Gould, Kansas City, for appellant.
    James Michael Tobin, Kansas City, for respondents.
    Before TURNAGE, C.J., and MANFORD and BERREY, JJ.
   MANFORD, Judge.

This is an appeal from the circuit court judgment in the nature of a dismissal of an application for a trial de novo. The appeal is dismissed.

In summary, appellant charges that the trial court erred in granting respondents’ motion to dismiss appellant’s application for a trial de novo because (1) the trial court erroneously concluded the application for a trial de novo did not seek the appeal of the entire judgment, and (2) the trial court erroneously entered two distinct judgments in violation of § 517.270, RSMo 1978.

The facts relative to the original claims and defenses between the parties have no real importance as regards this appeal. It suffices to state that appellant, Cox Standard Station (hereinafter Cox) filed this action against respondents, David and Tina Taylor (hereinafter Taylor) to recover for repairs made to the Taylors’ automobile. The Taylors filed a two-count counterclaim, contending that Cox had caused them damages upon a breach of warranty to repair in a workmanlike manner, and for negligent repair of their vehicle. The issues were tried to the associate circuit court. The court found for Cox upon its claim in the sum of $489.91. The court also found for the Taylors on their counterclaim in the sum of $2,000.00. Cox then filed its application for trial de novo in the circuit court. This application reads as follows:

APPLICATION FOR TRIAL DE NOVO

Application is hereby made by Cox Standard Station, Inc. for a trial de novo before a Circuit or Associate Circuit Judge from the judgment entered against him/her in this cause on October 6, 1983, by Judge Baker, Associate Circuit Judge. This appeal is only taken as to the court’s finding in favor of Defendants on Defendants Count II.
/s/ Matthew J. Stretz
October 14, 1983

The application was filed October 17, 1983. On October 24, 1983, the Taylors filed a motion to dismiss the application, asserting that the circuit court was without jurisdiction because Cox had appealed only a specific portion of the judgment from the associate circuit court. The circuit court sustained the motion upon a finding that it lacked jurisdiction. This appeal followed the judgment of dismissal.

The issue before this court is whether the dismissal by the circuit court for lack of jurisdiction was proper. Where a party attempts to appeal only a portion of the total judgment, the appeal is defective and confers no jurisdiction on the circuit court. Preston Plumbing, Inc. v. Melman, 528 S.W.2d 524, 526 (Mo.App.1975).

While Cox asserts before this court that its application is simply an appeal from a net judgment, the fact remains that the appeal was only taken as to a portion of the judgment, to wit, Count II of the Taylor’s counterclaim. There is no express reference to a net judgment, nor can any such inference be drawn from the application for a trial de novo.

To support its argument, Cox cites to Rickermann Auto Body, Inc. v. Laughlin, 526 S.W.2d 934 (Mo.App.1975). The reliance upon Rickermann is misplaced, as it was previously distinguished in Melman, because Rickermann involved an unintentional omission of a party’s name in the notice of appeal from an associate circuit court (formerly the magistrate court) judgment. The facts in the instant case distinguish it from Rickermann, just as was Rickermann distinguished in Melman.

Other authority cited by Cox include Hloben v. Henry, 660 S.W.2d 431 (Mo.App.1983), Cook v. American Maintenance Co., 588 S.W.2d 171 (Mo.App.1979), State ex rel. Wade v. Dalton, 559 S.W.2d 47 (Mo.App.1977) and Davenport Vinegar & Pickling Works v. Shelley, 280 Mo. 393, 217 S.W. 267 (1920). It serves no purpose to discuss these authorities, as a reading of them will disclose they can be distinguished from Melman, Rudy-Fick, Inc. v. Snider, 363 S.W.2d 16 (Mo.App.1962), Gloria Lee Realty Co. v. Madigan, 243 S.W.2d 118 (Mo.App.1951) and the present case. In the instant case, it is clear that the Cox application for a trial de novo specifically manifested an intent to appeal only from Count II of the Taylors’ counterclaim. To derive a contrary conclusion would call upon this court to ignore the plain expression, meaning, and obvious intent of the wording within the application.

Before this court, Cox also seeks an order nunc pro tunc to correct the “clerical omission” of the court to change the judgment entered to read in favor of the Taylors in a net sum of $1,510.09. A clerical error has been defined as a mistake in writing or copying. Such clerical errors and not judicial errors can be corrected by an order nunc pro tunc. Gordon v. Gordon, 390 S.W.2d 583 (Mo.App.1965). Even if this court were to decide that the alleged error was clerical as opposed to judicial, this court does not have jurisdiction over the records of the associate circuit court for such purpose. Even if a trial court loses jurisdiction when an appeal is taken, it does not lose jurisdiction of its records. Vaughn v. Kansas City Gas Co., 236 Mo. App. 669, 159 S.W.2d 690, 693 (1942). Cox is left to the correction of any record upon application for such relief within the associate circuit court.

The circuit court ruled correctly that it lacked jurisdiction because of the defect in the Cox application for trial de novo. This court’s jurisdiction, being derivative from the circuit court, is also without jurisdiction. Because point (1) has been so determined, it is not necessary, nor is there any basis, to take up and dispose of point (2). .

The appeal is dismissed.

All concur.


author: COOPER, Chief Justice.

text:
    SOUTHERN RAILWAY COMPANY; Cincinnati, New Orleans & Texas Pacific Railway Company; Louisville & Nashville Railroad Company; Clinchfield Railroad Company; and Missouri, Pacific Railroad Company, Appellees, v. STATE BOARD OF EQUALIZATION of the State of Tennessee; Lamar Alexander, Chairman; Gentry Crowell, Vice Chairman; William R. Snodgrass; Harlan Mathews; John E. Sloan, Jr.; Martha Olsen; Claude Ramsey; and William C. Koch, Jr., Members of the State Board of Equalization of the State of Tennessee, Appellants.
    Supreme Court of Tennessee, at Nashville.
    Dec. 10, 1984.

      Jim G. Creecy, Deputy Atty. Gen., W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, for appellants.
    Everett B. Gibson, Memphis, William C. Antoine, Washington, D.C., Marion F. White, Laughlin, Halle, Clark, Gibson & McBride, J. Richard Buchignani, Wildman, Harrold, Allen, Dixon & McDonnell, Memphis, Tyree B. Harris, Dodson, Harris, Robinson & Aden, Nashville, Courtney George, Seaboard System Railroad, Jacksonville, Fla., Henry C. Wolf, Norfolk Southern Corp., Roanoke, Va., for appellees.
   OPINION

COOPER, Chief Justice.

This case involves a dispute between five railroads and the State Board of Equalization (Board) concerning the valuation of railroad property for ad valorem tax purposes in 1981. On an appeal of the value placed by the Board on railroad property for ad valorem taxation, the Chancery Court of Davidson County concluded that neither the Board’s treatment of accumulated deferred income taxes nor the Board’s valuation of the cost of equity were supported by substantial and material evidence, but such evidence did support the Board’s application of the imbedded debt concept. The Court of Appeals affirmed. On the two issues before this court, we affirm the holding that accumulated deferred income taxes are not a cost-free source of capital, but we find substantial and material evidence supporting the Board’s valuation of the cost of equity.

The railroad companies here are interstate carriers subject to ad valorem taxation pursuant to T.C.A. § 67-901 (now § 67-5-1301) which authorizes and directs the Tennessee Public Service Commission (Commission) to assess for taxation “all of the properties of every description, tangible and intangible, within the state, owned by and all personal property used and/or leased by” various companies, including railroads. The State Board of Equalization is authorized to review the Commission’s assessments, and may increase or diminish the valuations. T.C.A. § 67-932 (now § 67-5-1328). The Board’s valuations are then certified to the Commission as conclusive and final, but the assessed taxes may be paid under protest and court review may be sought. T.C.A. § 67-933 (now § 67-5-1329). Review is pursuant to the Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et seq., and is conducted without a jury and confined to the record if no procedural irregularities are alleged. T.C.A. § 4-5-117(g) (now § 4-5-322(g)). Reversal or modification of the agency’s order is allowed, in one instance, when the reviewing court finds that the administrative decision is not supported by substantial and material evidence in light of the entire record. T.C.A. § 4-5-117(h)(5) (now § 4-5-322(h)(5)).

On July 27, 1981, the Commission notified all public utility and transportation companies in Tennessee of the value of their properties subject to ad valorem taxation and the amount of tax. The values set by the Commission were:

ASSESSED VALUE RAILROAD SYSTEM VALUE IN TN
Cincinnati, New Orleans & Texas Pacific 215,000,000 36,120,000
Clinchfield 165,000,000 13,852,000
Louisville & Nashville 820,000,000 68,723,000
Missouri, Pacific 1,625,000,000 2,675,000
Southern 1,100,000,000 57,484,000

The Commission determined the valuation of the properties through application of the unit rule of appraisal, which is defined as “the appraisal of the property as a whole without geographical or functional division of the whole.” T.C.A. § 67-902 (now § 67-5-1302(a)(3)). The “unit” refers to all operating property, tangible and intangible, owned and used and/or leased by the company as determined by the Commission. T.C.A. § 67-902 (now § 67-5-1302(a)(4)). This method of appraisal employs three recognized indicators of value to determine the value of an entire railroad: the cost approach, the stock and debt approach, and the income approach. The Commission determined a value for each approach and correlated them to arrive at one valuation, but gave the most weight to the income approach.

The railroads appealed their respective assessments to the Commission, protesting the techniques used by the Commission’s staff in valuing the property under the unit rule. They argued that the system values exceeded the market value of their railroads, and suggested these values:

RAILROAD SYSTEM VALUE
Cincinnati, New Orleans & Texas Pacific 162,734,000
Clinchfield 102,957
Louisville & Nashville 561,074,000
Missouri, Pacific 971,942,000
Southern 695,516,000

After a hearing on these complaints, the Commission entered an order fixing the system values as had been previously determined. The railroads appealed the assessments to the Board, which considered written appraisal reports, affidavits, critiques of the appraisals submitted by the parties, and the testimony of an expert witness for the railroads and two for the Commission. The Board issued an order upholding the Commission’s valuations. Judicial review was then sought.

As heretofore noted, in determining the full system value of the railroads, the Commission and the Board considered each of the three methods of appraising property under the unit rule of appraisal. The income approach was determined by them to be the most reliable method and they assigned the greatest weight to it in arriving at their valuation.

In the income approach the appraiser attempts to determine the value an investor would currently pay to receive the projected future income of the railroad. The accepted measure of a railroad’s system income is its Net Railway Operating Income (NROI), which is the income from operations after depreciation and taxes, but before any distribution to the railroad’s security holders. Once an estimate is made of the projected NROI (the anticipated future income stream), the fair market value of the railroad is determined by dividing the projected income by the capitalization rate. The capitalization rate is an estimate of the return an investor would demand as an inducement to invest in the purchase of property which generates the railroad’s system income.

Three methods are available for developing the capitalization rate: the summation method, the comparative method, and the band of investment method. The most accepted approach is the band of investment method, and it was applied by the Commission and the Board in valuating the railroads’ properties. Under this method the capital structure of the railroad is broken down into two “bands”: debt and equity. Each “band” is assigned its own capitalization rate, these rates are then weighted, and a final estimate of the capitalization rate is determined. Each railroad is unique and it is impossible to derive one standard rate of capitalization due to differences in risk, capital structure, and cost of debt.

In its valuation of the railroad properties, the Commission included the accumulated portion of deferred federal income taxes as a cost-free- source of capital in developing the capitalization rate. The accumulated deferred taxes were treated as another “band of investment” at the rate of 0%, causing an adjustment in the overall capitalization rate. The Commission noted that

the deferred taxes reduce the company’s tax bill and thereby increase the NROI and the Commission has consistently held that the company’s appraised value should reflect these tax benefits. Deferred taxes result from a timing difference which occurs when the railroad uses accelerated depreciation of equipment for income tax purposes and thereby lowers current tax expense and increases NROI.

The Board affirmed this procedure by concluding that “deferred income taxes may be properly accounted for in the Income Approach to value by adjustment of the capital structure ... to include accumulated deferred taxes as interest-free capital ...” The Court of Appeals agreed with the chancellor that no substantial and material evidence supported that conclusion, and quoted the chancellor’s memorandum:

[t]he problem with the method used by the Board is that deferred federal income taxes are not a cost-free source of capital; they are not a source of new capital at all. While it is true that being able to defer paying taxes allows the railroad to use the capital it generated through income, the value of that capital is already reflected in the projected future income stream.

In reviewing an administrative decision, a court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” T.C.A. § 4-5-322(h)(5). Factual issues are reviewed upon a standard of substantial and material evidence, and not upon a broad, de novo review. CF Industries v. Tennessee Public Service Commission, 599 S.W.2d 536, 540 (Tenn.1980). Substantial and material evidence is “ ‘such relevant evidence as a reasonable mind might accept to support a rational conclusion and such as to furnish a reasonably sound basis for the action under consideration.’ ” Sweet v. State Tech. Institute at Memphis, 617 S.W.2d 158, 161 (Tenn.App.1981) (quoting Pace v. Garbage Disposal District of Washington County, 54 Tenn.App. 263, 390 S.W.2d 461, 463 (1965)). A court will not disturb a reasonable decision of an agency with expertise, experience, and knowledge in the appropriate field. Griffin v. State, 595 S.W.2d 96, 99 (Tenn.Crim.App.1980).

On considering the record under this standard of review, we agree with the conclusion of the Court of Appeals that there is no substantial or material evidence to support the Board’s inclusion of accumulated deferred income taxes as a separate band of investment in the cost of capital. To the contrary, the evidence shows that the full value attributable to the deferred taxes is reflected in the income stream and that it would be duplicative also to consider them as a separate component of capital structure.

On the second issue before this court, the Court of Appeals affirmed the chancellor’s holding that there is no material and substantial evidence in the record to support the Board’s finding that rates of return of 16.5% for the L & N Railroad and 15.5% for the other railroads are adequate and proper for the equity component of the capitalization rate. The Court of Appeals quoted the chancellor in approving the railroads’ valuation of a cost of equity in excess of 20%:

In summary, the PSC report upon which the Board based its finding of the cost of equity does not really constitute evidence at all; it is merely a series of unsupported conclusions. The Railroads on the other hand offered expert testimony which explained in considerable detail the data used and how that data supported the conclusions.
Unfortunately, the cost of equity cannot be ascertained with certainty, since most railroads are privately held. The ultimate question in developing a cost of equity capitalization rate is: What current rate of return would be necessary to attract investors in the equity of railroads? Of necessity, an appraiser attempting to answer this question must exercise an informed judgment. But, that judgment must be based upon established facts.

It is true that the testimony of the railroads’ experts was more comprehensive and thorough than that of the Commission’s experts, but this goes only to the weight of the evidence. The chancellor noted that the Commission’s 1981 Appraisal of Railroads in Tennessee referred to studies made of the price-earnings ratio of the railroad industry, airline industry, gas industry, telephone industry, and others, but that neither figures nor explanations of how they related to the Commission’s conclusions were in the record. Six pages of the appraisal report discussed the techniques used in developing a capitalization rate under the band of investment method, although the cost of equity was only discussed on one page. The appendix to the report contained profitability and growth comparisons for the air transportation industry, the surface transportation industry, electric utilities, telecommunications, the natural gas industry, the energy industry, multi-industry corporations, conglomerates, railroads, public utilities, and public service corporations. Also included were records of sales and profits for railroads and utilities, and profitability and price-earnings ratios for a dozen railroads. In addition, there was data on the yields of U.S. Treasury Bonds and Notes, and on the weighted average of yield on newly issued domestic bonds. The Commission’s appraisal clearly explains the steps that were taken and the general types of data that were examined in determining the rate of equity. The only difference from the data supplied by the railroads is a matter of specificity. The appraisal report stated the factors that were considered, but did not attempt to show an exact formulation or computation as did the railroad. However, there is no definitive procedure for determining an equity rate, for the rate of return varies with every company. It is, as the Board of Equalization noted, “probably the most subjective task the appraiser faces.”

The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for the recalculation of the full system values of the several railroads using the applicable cost of equity determined by the Board, using the embedded cost of debt, and computing the capitalization rate without including deferred federal income taxes as a component of the band of investment. Costs incident to the appeal will be paid one-half by the Board and one-half by the railroads.

FONES, BROCK, HARBISON and DRO-WOTA, JJ., concur.


author: FONES, Justice.

text:
    CLEVELAND BANK AND TRUST COMPANY, Executor of the Will of M.C. Headrick, Appellee, v. Martha B. OLSEN, Commissioner of Revenue, State of Tennessee, Appellant.
    Supreme Court of Tennessee.
    Dec. 10, 1984.

      Gregory L. Nelson, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen. & Reporter, Nashville, for appellant.
    Robert L. McMurray, Bell, Painter, McMurray, Callaway, Brown & Headrick, Cleveland, for appellee.
   OPINION

FONES, Justice.

Plaintiff, Cleveland Bank and Trust Company, initiated this action seeking a refund of inheritance and estate taxes that were assessed by the Commissioner of Revenue and paid under protest by the plaintiff. The Commissioner denied a deduction as an administrative expense of interest paid on Tennessee inheritance tax, on federal estate tax, and on certain debts incurred by decedent, prior to death. The Commissioner also subjected to inheritance taxation a $10,000 gift tax exclusion to Class A beneficiaries, which plaintiff sought to exempt from the inheritance tax pursuant to T.C.A. § 67-8-304(3) [formerly T.C.A. § 30-1602(c) ]. The Commissioner, however, has now conceded that the inclusion of the $10,-000 gift tax exemption was erroneous.

On cross-motions for summary judgment, the trial court granted plaintiff’s motion and ordered the Commissioner to refund the amount of the disputed tax. The Commissioner then perfected this appeal to the Supreme Court pursuant to T.C.A. § 16-4-108.

Cleveland Bank & Trust Company is the successor executor of the will of M.C. Headrick, who died on October 12, 1979. Although decedent’s gross estate was valued at $2,020,000, the assets were not liquid and were comprised primarily of real estate and closely held business entities that owned real estate. The cash assets that were available to the executor totaled approximately $35,600. The immediate sale of the realty was not a practical nor feasible alternative for the executor because the market for the type of realty owned by the estate was depressed.

In order to fund the cash requirements that were necessary to pay the decedent’s debts, administration expenses, and death taxes (a total of approximately $1,000,000), as well as fund a $200,000 trust for decedent’s widow, the executor continued decedent’s real estate operations even though this entailed periodic borrowings to pay the interest, debts and taxes. To further alleviate the estate’s cash flow problems, the executor paid the death taxes in installments plus interest. All of the executor’s actions had been expressly authorized by the incorporation of T.C.A. § 35-50-110 [formerly T.C.A. § 35-618] into the testator’s will.

The Commissioner asserts that interest paid on Tennessee inheritance taxes is not an expense of administration and is not deductible in computing the tax. The Commissioner further contends that the interest paid on federal estate taxes is not an expense of administration and is therefore not deductible for purposes of the Tennessee inheritance tax. We disagree with both contentions of the Commissioner.

T.C.A. § 67-8-315(a) provides, in pertinent part:

“For the purpose of determining the net estate subject to [Tennessee inheritance] tax, the following deductions shall be deducted from the value of the gross estate:
(4) Expenses of administration .... ”

Although T.C.A. § 67-8-315(a) does not define allowable “expenses of administration,” the general rule is that an executor is entitled to credit his accounts for expenses necessarily and properly incurred in good faith, in transacting with reasonable care and diligence the business of the estate, upon proof of the particular items of expense claimed. 33 C.J.S. Executors and Administrators § 217, at 1207 (1942).

In accord with the general rule, there is ample Tennessee authority that supports the proposition that a court will credit an executor for interest incurred during administration. T.C.A. § 35-50-110(8) [formerly T.C.A. § 35-618(8)], for example, specifically authorizes an executor to borrow money and pay interest when the decedent incorporates this provision into his will, as the testator did in this case.

In Coffee v. Ruffin, 44 Tenn. 487 (1867), the executor was granted broad powers under the will. During the administration of the will, the executor borrowed money at usurious rates of interest to prevent a sacrificial sale of the real estate. The court credited the executor for the usurious interest paid, noting the broad discretion conferred upon the executor by the will to borrow money, even at usurious rates, and to charge the estate with that interest. In Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715 (1891), the executor borrowed money without express authorization. Because the money was used to benefit the estate, however, the court credited the executor for legal interest paid on the loan, but it refused to credit the usurious percentage of the interest.

As the Coffee and Ruffin courts credited interest as a cost of administration under those circumstances, likewise, interest should be a proper expense of administration when specifically authorized by the terms of the will, as in the present case. Interest is simply the cost of using money, and there should be no differentiation for purposes of deductibility whether the interest is paid on taxes or on money borrowed to pay the taxes. Estate of Bahr v. Commissioner, 68 T.C. 74 (1977); Holt v. Lynch, 307 N.C. 234, 297 S.E.2d 594 (1982).

The federal courts have consistently determined that interest on unpaid taxes is a deductible expense of administration under I.R.C. § 2053(a)(2), the federal counterpart to T.C.A. § 67-8-315. See, e.g., Estate of Wheless v. Commissioner, 72 T.C. 470 (1979); Estate of Bahr v. Commissioner, supra; Estate of Webster v. Commissioner, 65 T.C. 968 (1976); Estate of Todd v. Commissioner, 57 T.C. 288 (1971); and Penrose v. United States, 18 F.Supp. 413 (E.D.Pa.1937).

The Commissioner, however, maintains that, regardless of the deductibility of interest paid on federal estate taxes, the interest on Tennessee inheritance taxes is not a deductible administrative expense under T.C.A. § 67-l-801(a)(3), which provides: “Any interest imposed on delinquent or deficient tax payments shall be considered part of such delinquent or deficient taxes and shall be payable to and collectible by the commissioner in the same manner as the tax is paid and collected.” Based on this section, the Commissioner asserts that such interest is part of the Tennessee inheritance taxes and is not deductible as an administrative expense.

In Holt v. Lynch, supra, a similar issue existed as the North Carolina statute also defined interest as part of the tax. The North Carolina Supreme Court rejected the Commissioner’s argument that the deduction of interest as an expense of administration should be disallowed and stated: “To adopt the Commissioner’s reasoning, we must accept his underlying assumption that interest on a tax is a tax for purposes of determining its non-deductibility under G.S. § 105-9. It is this underlying assumption that we now reject.” 297 S.E.2d at 597. The court then stated that the statutory definition of tax, G.S. § 105-241.1(il) was contained within the subchapter of the Code entitled “General Administration; Penalties and Remedies.” This suggested to the court that this statutory definition of tax as including interest was for administrative purposes only, and that interest itself is substantively something that is separate and distinct from the tax. The court concluded that interest should be treated in the same manner as the tax only for the limited purposes of assessment, collection and payment, and that, although collected as part of the tax, interest paid on an estate or inheritance tax deficiency should be more properly characterized as something in addition to the tax. 297 S.E.2d at 597.

The federal courts, except for Ballance v. United States, 347 F.2d 419 (7th Cir. 1965), have uniformly held that interest is not part of the tax in determining deducti-bility. While Ballance has not been expressly overruled, the I.R.S. has consistently recognized the case as an aberration by acquiescing in Tax Court decisions to the contrary and by issuing Revenue Rulings that have permitted the interest as a deductible expense of administration. See Rev.Rul. 125, 1978-1 C.B. 292; 250, 1980-2 C.B. 278; 154,1981-1 C.B. 470; 256, 1981-2 C.B. 183; 24, 1983-1 C.B. 229.

If the executor had borrowed money from a private lender to pay the federal estate taxes, the interest would have clearly been deductible as an administrative expense under I.R.C. § 2053(a)(2). Estate of Todd v. Commissioner, supra. The Commissioner, however, proposes that “tax” interest does not share the same status as “commercial” interest paid on borrowed money, even though in both circumstances the interest incurred benefits the estate. A similar argument by the I.R.S. was rejected by the Tax Court in Estate of Bahr v. Commissioner, supra. The Bahr court concluded that interest is separate and distinct from the tax imposed, although collected as part of the tax, and is therefore a deductible expense of administration. The court stated: “To deny petitioner the right to deduct for estate tax purposes the statutory interest incurred to defer the payment of estate tax has the practical effect of treating such interest in the same manner as a penalty if the estate does not have sufficient taxable income to benefit from deducting the interest paid on its income tax returns.” Id. at 82.

The decree of the trial court is affirmed. Costs are adjudged against the Commissioner.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.

      . T.C.A. § 67-l-801(a)(3) is also contained within the penalties and interest section of the General Provisions of Title 67, the tax portion of Tennessee Code Annotated.


text:
    TENNESSEE GROWERS, INC., Appellee, v. John K. KING, Commissioner of Revenue of the State of Tennessee, Appellant.
    Supreme Court of Tennessee, at Jackson.
    Dec. 10, 1984.

      J. Robert Walker, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, for appellant.
    Walker T. Tipton, Covington, for appel-lee.
   OPINION

COOPER, Chief Justice.

This is an action by a taxpayer for refund of state excise taxes paid under protest. The chancellor entered judgment for the taxpayer, and the commissioner appealed.

Tennessee Growers, Inc. acquired all of the capital stock of Shelton Fertilizer Co., Inc. on January 1, 1979. On January 5, 1979, Tennessee Growers, Inc. liquidated Shelton, took over its assets, assumed its liabilities, and cancelled the stock of Shelton.

Shelton filed a federal income tax return for the period of January 1, 1979, through January 5, 1979, reporting gross income of $123,605.00 attributable to, the “recapture of depreciation” previously taken. See 26 U.S.C.A. § 1245. The “recapture of depreciation” reported by Shelton represented the depreciation taken from 1961 until 1979 on the assets distributed in the liquidation. These assets included machinery and equipment, office signs, trucks, tractors, “applicators,” office equipment and other unde-scribed equipment.

Shelton claimed deductions for federal tax purposes of $21,937.00, including $1,065.00 in operating expenses, leaving $101,668.00 in federal taxable income.

Shelton also filed a state franchise and excise tax return for the period of January 1, 1979, through January 5, 1979. Shelton reported the net income shown on the federal tax return but claimed a deduction of $123,605.00, the total amount of depreciation recaptured. Consequently, no taxable income was reported by Shelton on the state tax return and no tax was paid.

On reviewing the tax return, the commissioner denied the “recapture of depreciation” deduction and assessed Shelton $6,313.58 for excise taxes and interest. Shelton paid the assessment under protest and filed the present action for refund.

The primary issue presented to the trial court, and now to this court, is: Is the “depreciation recaptured” a proper deduction from federal taxable income in determining “net earnings” of Shelton for excise tax purposes? We hold that it is not, and reverse the judgment entered in the Chancery Court of Tipton County.

T.C.A. § 67-2702(a) [now T.C.A. § 67-4-806(a) ] requires corporations doing business in Tennessee to pay an excise tax “equal to six per cent (6%) of the net earnings for the next preceding fiscal year for business done in this state.” The tax is upon the privilege of engaging in business in corporate form in Tennessee, and not merely on the doing of business. Mid-Valley Pipeline v. King, 221 Tenn. 724, 431 S.W.2d 277 (1968).

For the applicable tax period, “net earnings” are defined for excise tax purposes as federal taxable income, with certain enumerated adjustments. See T.C.A. § 67-2704 [now § 67-4-805]. Since Shelton reported taxable income for federal tax purposes for the tax year in question, it also had, absent an offsetting adjustment, net earnings for state excise tax purposes. The "recapture of depreciation” item of federal taxable income is not an enumerated adjustment. The taxpayer insists, however, that it is an allowable deduction in the calculation of state excise taxes under the provision allowing the subtraction of “[a]ny amount included in federal taxable income but not taxable under the law of this state.” T.C.A. § 67-2704(b)(2) [now § 67-4-805(b)(2)(B) ].

In permitting the taxpayer to exclude . “recaptured depreciation” income from net earnings for excise tax purposes under T.C.A. § 67-2704(b)(2) [now § 67-4-805(b)(2)(B) ], the chancellor concluded that:

[I]t was the intent of the legislature [in defining “net earnings” for excise tax purposes] that there be excluded from the federal taxable income those portions of federal taxable income which, prior to the enactment of the 1976 Act, were not taxable under the Tennessee Excise Tax Law, ie., those items included in federal taxable income which did not constitute net earnings as computed by accepted accounting methods.

The chancellor based his conclusion, in part, upon the final report of the Committee to Study the Franchise and Excise Taxes, which was released prior to the enactment of the 1976 Act and which specifically defined “net earnings” for the first time. One of the recommendations of the Committee was that:

... the statutory definition of the tax base be revised to define “net earnings” as the net income for federal income tax purposes as set out in the Internal Revenue Code in effect for the taxable year, adjusted so as to retain substantially the current Tennessee tax base.

Legislative intent is derived from construing the statute in its entirety, and it should be assumed the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. See Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977); Tidwell v. Servomation—Willoughby Co., 483 S.W.2d 98 (Tenn.1972).

The stated purpose for the Committee’s recommended definition was to improve “the efficiency of tax administration and compliance by moving more closely toward accounting practices commonly accepted for federal and state tax purposes.” This purpose could not be accomplished under the chancellor’s interpretation of what constitutes “net earnings” for excise tax purposes. As pointed out by the commissioner, the chancellor’s interpretation of T.C.A. § 67-2704(b)(2) [now § 67-4-805(b)(2)(B) ] would permit the deduction of any item of income not included in net earnings prior to 1976, and would have the effect of negating the need for the remainder of the Act, or, for that matter, the definition of “net earnings” set forth in the Act.

In our opinion, T.C.A. § 67-2704(b)(2) [now § 67-4~805(b)(2)(B) ] simply means what it says: any amount which is taxable under federal law “but not taxable under the law of this state” is to be deducted from federal taxable income in calculating the excise tax base,” for example, the deduction from federal taxable income of corporate income which may be allocated or apportioned to other states and consequently is not taxed by this state. See T.C.A. §§ 67-2709 — 2713 [now § 67-4-810] (allocation); T.C.A. §§ 67-2714 — 2722 [now § 67-4-811]; and T.C.A. §§ 67-2724 — 2726 [now § 67-4-814 — 67-4-816] (apportionment). Other federal taxable income, such as, the “recapture of depreciation,” not expressly excluded from taxation by the laws of this state are within the statutory definition of “net earnings” for excise tax purposes.

The taxpayer also argues that there were no “net earnings from any business activity” in Tennessee during the tax period and that, consequently, no excise taxes were due the State of Tennessee. It is undisputed that there was some business activity at Shelton during the tax period in question. Tax forms filed show that Shelton incurred and claimed “operating expenses" in calculating both the federal income tax and state excise tax. It is also undisputed that Shelton reported income from the “recapture of depreciation” as the result of its liquidation and distribution of assets to Tennessee Grower’s Inc. This income, in our opinion, should properly be classed as “business earnings." But whether classed as business or non-business earnings, it is income for excise tax purposes. “Business earnings” are defined in T.C.A. § 67-2703(a) [now § 67-4-804(a)(1)] to include “earnings from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.” Property subject to “recapture of depreciation” is generally limited to personal property used in trade or business or held for the production of income. See 26 U.S.C.A. § 1245(a)(3). The assets distributed on liquidation by Shelton thus would not have been subject to the “recapture of depreciation” provision of the Internal Revenue Code, unless they had been used in Shelton’s business operations. Consequently, the recapture of depreciation would be “business earnings” as that term is defined. But, if the recapture of depreciation income were to be classed as “non-business earnings” it would still constitute taxable income for excise tax purposes, as the property had a situs in this state at the time Shelton was liquidated and the property was distributed to Tennessee Growers, Inc. See T.C.A. §§ 67-2709, 67-2711(b)(l) [now § 67-4-810]

The judgment of the Chancery Court of Tipton County is reversed, and the case is dismissed. Costs will be paid by Tennessee Growers, Inc.

FONES, BROCK, HARBISON, and DROWOTA, JJ., concur.


author: SANDERS, Judge.

text:
    Scott Allan ABBOTT by Next Friend Judith K. ABBOTT, and Judith K. Abbott, Individually, Plaintiffs-Appellants, v. AMERICAN HONDA MOTOR COMPANY, INC., King of Sports, Inc. d/b/a Valley Honda, and Honda Motor Company, Ltd., Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 2, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1984.

      Jerrold L. Becker, with Loekridge & Becker, Knoxville, for plaintiffs-appellants.
    Charles B. Lewis, with Morton, Lewis, King & Krieg, Knoxville, for defendants-appellees.
   OPINION

SANDERS, Judge.

In this suit for personal injuries the Plaintiffs have appealed from a jury verdict in favor of the Defendants.

On June 12, 1981, Plaintiff-Appellant Scott Allan Abbott, aged 11, was riding a Honda ATC-70, three-wheeled, all-terrain motorcycle on his father’s property near his home. As the Plaintiff was going up a hill, the vehicle lost its speed and power and Scott Abbott thereupon applied the brakes. Subsequently he released the brakes and began to ease the motorcycle backwards down the hill. The motorcycle then began to pick up speed, causing the Plaintiff to reapply the brakes. As a result of this action the front wheel came off of the ground, resulting in the Plaintiff’s falling or being thrown over the back of the vehicle and onto the ground. The vehicle, in continuing its backwards and downhill movement, then passed over Abbott and seriously burned him when the unshielded underside of the exhaust pipe came into contact with him. The resulting burns are alleged to have caused permanent scarring and injuries, both physical and emotional.

Scott Abbott, by next friend Judith K. Abbott (his mother), sued Honda Motor Company, Ltd. (manufacturer), American Honda Motor Company, Inc. (distributor), and King of Sports, Inc. (seller) for damages arising from the injuries sustained in connection with the accident with the Honda ATC-70. Judith Abbott joined in the suit as a plaintiff, .seeking to recover damages for various expenses, including her son’s hospitalization and medical costs, and for the loss of her son’s services, society, and companionship.

In their complaint, the Plaintiffs asserted that the Defendants were liable upon a variety of grounds, including strict liability, negligence and breach of implied warranties of merchantability and of fitness for a particular purpose. For their answer the Defendants completely denied any liability.

At trial the Plaintiffs proceeded solely upon the theory of strict liability. The jury returned a general verdict in favor of all of the Defendants and the trial court entered judgment in accordance with the verdict. Following the dismissal of their motion for a new trial, the Plaintiffs have appealed, assigning as error various instructions made by the court to the jury.

As their first assignment of error, the Appellants assert that the trial judge, at best, issued confusing instructions relative to the doctrine of contributory negligence and, at worst, issued incorrect instructions relative to the doctrine.

Toward the beginning of his charge to the jury the judge stated as follows: “Members of the jury, I charge you in this case that this is not a negligence case, but is based on Section 402A, Restatement of Torts, and I charge you that contributory negligence of this plaintiff, or plaintiffs, is not a defense to an action based upon strict liability for a defective product.” Later in his charge the judge stated that “[t]he manufacturer of a product which involves a risk of injury to the user is liable to any person, whether a purchaser or third person, who without fault on his part sustains an injury caused by a defect in the design, the composition, or manufacture of the article, if the injury might reasonably have been anticipated or foreseen.” The Appellants contend that, despite the original instruction that contributory negligence is not a defense in a strict liability action, the court’s subsequent “references to ‘fault’ were so highly prejudicial and contrary to settled law that no cure could have undone the harm.”

Long ago, our Supreme Court established the rule that inconsistent or contradictory instructions can be the basis for reversal on appeal. In Citizens’ Street Railroad Co. v. Shepherd, 107 Tenn. 444, 64 S.W. 710 (1901), the Court stated that it had “repeatedly held that inconsistent and contradictory statements do not neutralize or validate each other, but are vitally erroneous.... The parties are entitled to a clear and consistent charge, as well as a correct one, that justice may be reached.” Id. at 449-50, 64 S.W. 710. See also Employers Liability Assurance Corp. v. Farquharson, 182 Tenn. 642, 188 S.W.2d 965 (1945).

It has been generally stated, in 75 Am. Jur.2d Trial § 628, 920 (1974), that:

“Instructions as a whole must be consistent and harmonious, not conflicting and contradictory.... Where instructions given to the jury for their guidance present contradictory and conflicting rules which are unexplained, and where following one would or might lead to a different result than would obtain by following the other, the instructions are inherently defective. This is true although one of the instructions correctly states the law as applicable to the facts of the case, since the correct instruction cannot cure the error in the contradictory erroneous instruction.... The fact that the court gave a correct charge at first will not avail to defeat an exception to a subsequent erroneous instruction.”

See also 88 C.J.S. Trial § 338-39 (1955).

Under Tennessee law, the jury charge will be “viewed in its entirety” or “considered as a whole” in order to determine whether the trial judge committed prejudicial error. See Farguharson, supra; Cooper Paintings & Coatings, Inc. v. SCM Corp., 62 Tenn.App. 13, 457 S.W.2d 864 (1970); and Hayes v. Schweikart’s Upholstering Co., 55 Tenn.App. 442, 402 S.W.2d 472 (1965).

Considering the charge in question as a whole, we do not find that the trial judge committed prejudicial error relative to his instructions on contributory negligence. As heretofore mentioned, the trial judge originally stated unequivocally that contributory negligence will not serve as a defense in a strict liability action. His subsequent references to “fault,” although perhaps a bit unqualified, do not serve to contradict or to confuse his original charge. “Fault,” as used within the context of the trial court’s charge, clearly connotes a form of improper conduct or omission. And although contributory negligence cannot be applied as a defense to strict liability, certain forms of improper conduct or omission by a plaintiff may serve to shield the defendant(s) from liability. In Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973), our Supreme Court stated:

“The courts do recognize, however, that plaintiffs can conduct themselves in such a way as to defeat recovery. Regardless of which label is used, ‘contributory negligence’ or ‘assumption of risk,’ the courts have generally held that ordinary lack of care is not a defense, while ‘voluntarily and unreasonably proceeding to encounter a known danger’ is a defense. Williams v. Brown Manufacturing Co., supra [45 Ill.2d 418], 261 N.E.2d [305] at 309 [ (1970) ]; Prosser, The Law of Torts, Sec. 102 at 670; Restatement (Second) of Torts, Sec. 402A, comment n at 356. As the court said in Carney v. Ford Motor Co.:
“ ‘We ... conclude that when a plaintiff, with knowledge of the defect, uses the product in such a manner as to voluntarily and unreasonably encounter a known danger, the act may be plead as a defense to an action based on strict liability in tort. We do not deem it determinative of the availability of this defense whether it be called negligence, contributory negligence or assumption of risk. It is more a matter of the unreasonableness of permitting a plaintiff to deliberately put in motion a known danger and attempt to profit thereby.’ Id. at 9727.
“Likewise, the Restatement (Second) of Torts, Sec. 496A, comment d at 563, states that the only form of contributory negligence which can be used as a defense in strict products liability cases is that known as ‘assumption of risk’ as defined in Carney v. Ford Motor Co., supra.”

We agree. Taking the court’s charge as a whole, we do not believe the references to “fault” confused or contradicted the original and unequivocal instruction that contributory negligence is not a defense in a strict liability action.

The Appellants next contend that the trial court erred in its jury charge by failing to distinguish between “warnings” and “instructions.” Pertinent to this matter, the trial judge stated:

“Where a manufacturer or seller of a product has reason to anticipate a danger may result from a particular use, then the manufacturer or the seller is required to give adequate warning of the danger, and a product sold without such warnings is in a defective condition.

“An adequate warning is one calculated to bring home to a reasonably prudent user of the product the nature and extent of the danger involved in using the product.... Where the warning is adequate to inform the minor child of the dangers incident to the use of the product, the parents are put on notice to take steps to avoid injury to the child through proper training, instruction, and supervision.

“A product is unreasonably dangerous if it is dangerous to a greater degree than the ordinary consumer would expect, having ordinary knowledge of the nature of the product. However, when the manufacturer is aware of the danger and gives the consumer warning adequately informing him of that danger, the product is not rendered defective and unreasonably dangerous, and no liability will attach to the manufacturer.

“If you find, therefore, that the danger inherent in the motorcycle in this ease is not greater than an ordinary consumer would expect, or if you find that the warnings and instructions supplied by the manufacturer adequately apprise such consumer of said danger, the manufacturer cannot be subject to such liability.

“The warning should be such that if followed it would make the product safe for users. Where such a warning or instruction is given, the supplier may reasonably assume that it will be read and heeded. Furthermore, when a warning or instruction is given specifying a particular manner of use or caution, and that warning or instruction is not complied with, no liability will attach to the supplier.

“Therefore, if you find that the supplier knew or reasonably should have known of a danger in the use of the motorcycle, that the supplier warned of that danger in such a way that if the instructions were followed the injury would not have been sustained, and that the warnings or instructions were not in fact followed, the supplier is relieved from liability for said injury.”

The Appellants contend that the failure of the trial court to distinguish between “instructions” and “warnings” rendered its charge to the jury “confusing” and “misleading.”

We disagree. First, the trial judge clearly focused his charge on “warnings,” not “instructions.” True, in a few instances, he spoke of the two concepts together. When reading the charge in its entirety, however, we do not find this charge to be either “confusing” or “misleading.”

Additionally, it is not unusual for the two concepts to be spoken of together. In Young v. Reliance Electric Co., 584 S.W.2d 663 (Tenn.App.1979), this court continuously refers to “instructions or warning” and concludes a portion of its opinion by stating that a “manufacturer is entitled to expect reasonable instructions or warnings to be heeded.” Id. at 669.

Although “instructions” and “warnings” may be intended to serve different purposes, as the Appellants assert, obviously the two concepts are related in the fact that they both serve to lessen the potential for injury. It has been stated that “there should be adequate directions or instructions for the use of a product, as well as proper warning of foreseeable dangers in connection therewith.” 63 Am.Jur.2d Products Liability § 339 (1984). In fact, as a practical matter, instructions, when followed, may prevent an improper use of a product — an improper use that might otherwise result in injury to the user.

With the above in mind, we believe the trial judge did not commit prejudicial error in his charge on “warning” and “instructions.”

The Appellants also say the court’s charge on the state of the art was inadequate.

In determining whether or not a product is in a defective condition or unreasonably dangerous, a court will often give consideration to the state of the art. Addressing this concept, T.C.A. § 29-28-105(b) provides:

“In making this determination the state of scientific and technological knowledge available to the manufacturer or seller at the time the product was placed on the market, rather than at the time of injury, is applicable. Consideration is given also to the customary designs, methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.”

In the present case, the trial judge charged the jury on the issue of the state of the art as follows:

“The defendants in this case have asserted that their liability is determined in the light of whether the product was reasonably suited for the purpose for which it was intended, in accordance with the general accepted standards of the industry, having due regard for the' existent state of technology and the state of the art at the time the product was designed and manufactured.

“I charge you that industry standards are not conclusive as to ordinary care in design or manufacture, but rather are admissible evidence for your consideration. The manufacturer and seller of a product or products, such as that involved in this case, have the duty to design and manufacture such products so that the products would be safe for their intended uses or for their reasonable foreseeable uses.

“The manufacturer and seller have the further duties to design, test, and install whatever necessary safety devices and safety guards that were available to render such product safe for their intended uses or for their reasonable foreseeable uses.

“A manufacturer is entitled to rely upon the state of the art at the time the product is placed on the market rather than at the time of the injury. Scientific and technical knowledge available to the manufacturer, as well as customary design methods, standards and techniques of manufacturing, inspecting and testing by other manufacturers of similar products, are elements to consider in determining whether the product conformed to the state of the art at the time it was placed on the market.

“If you find, therefore, that the defendants’ product conformed to the state of the art, that is that it was in conformance with the standard set by and customary design of similar products, and that the defendant used the same type of testing, inspecting, and manufacturing techniques as defendants’ competitors used, then the product is not determined to be defective and unreasonably dangerous, and no liability will attach to the defendants.”

Upon reading the state of the art charge in its entirety, we find absolutely no merit in the Appellants’ contention that the charge was inadequate in any way. The language used by the trial judge closely followed that of the statute and was in conformity with our case law. See Elli-thorpe, supra, at 519.

The Appellants also contend the jury charge on the issue of intervening negligence was in error. Pertinent to this matter, the judge charged:

“Ladies and gentlemen of the jury, in this case the defendants have interposed the plea of intervening cause or action. They say in this case that the parent, that is to say young Scott’s father, failed to advise him and warn him of the instructions in that book, and therefore that was an intervening act and cause of this accident.

“The law is that the chain of causation is not broken by the occurrence of an intervening act or event if that act or event might reasonably have been anticipa-ted_ Although there is an intervening act occurring after the defendant’s act, nevertheless the defendant’s act will be regarded as the proximate cause where the intervening act is a normal response to the stimulant of a situation created by the defendant’s conduct.

“If a later, new, and independent act or event which would not reasonably have been foreseen by the original negligent party, or original party holding liability under 402A, intervenes in the sequence of events and itself causes an injury to another, the original party is relieved of liability for the injury. In order to breach the chain of causation, the intervening act or event must not have been reasonably foreseeable by the original wrongdoer and must not have been a normal consequence of the situation created by him.

“If you find, therefore, that the parent of the minor plaintiff did not properly instruct and supervise the minor plaintiff in the use of the motorcycle, and that such failure itself caused the injury sustained, then the acts and omissions of the parent are an intervening cause sufficient to relieve the defendants of liability.”

The Appellants first contend the trial court erred in giving the charge of intervening negligence since the charge “was not substantiated by the weight of the evidence.”

We disagree. In this case, there was a question of whether or not the father of the injured minor plaintiff properly instructed the youngster as to the correct operation of the motorcycle, and was plead as an affirmative defense by the Defendants. As such, the issue of intervening negligence was properly submitted to the jury.

The Appellants further appear to argue that the trial court erred by failing to distinguish between a foreseeable intervening cause (which will not serve to bar the Defendants’ potential liability) and an unforeseeable intervening cause (which will serve to bar the Defendants’ liability). From a plain reading of the court’s charge, however, we find that the trial court clearly distinguished between the two. Therefore, the trial court did not commit error in his intervening negligence charge.

As their final assignment of error, the Appellants claim that the trial judge erred in refusing to use five of their requested instructions.

We again disagree. Certain of the Appellants’ proposed instructions were sufficiently covered by the court’s actual charge. See Lawing v. Johnson, 49 Tenn.App. 403, 355 S.W.2d 465, 469 (1961). The rest were correctly refused by the trial court as being improper under the facts of this case.

The issues are found in favor of the Appellees. The judgment of the trial court is affirmed and the cost of this appeal is taxed to the Appellants.

GODDARD and FRANKS, JJ., concur.