author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ricky Randall Rex SMITH, Defendant-Appellant.
    No. 13695.
    Missouri Court of Appeals, Southern District, Division Three.
    April 3, 1985.

      John D. Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Roy W. Brown, Bruce B. Brown, Brown & Brown, Kansas City, for defendant-appellant.
   TITUS, Judge.

Defendant was jury-convicted of the felony of possessing more than 35 grams of marihuana. § 195.020. The jury assessed punishment at imprisonment for a term of five years. § 195.200.1(l)(b). Judgment was accordingly entered and defendant appealed.

Brent Short had been employed as a mechanic at a West Plains garage “right after the first” of 1983. From the time of his employment until April 22, 1983, the garage employees had been working on a Renault said to be owned by Jollie Smith, a brother of defendant. On April 22 Short had driven the car to his home to put mileage on the vehicle so the head gasket could be “retorqued.” Short’s employer called with instruction to drive the Renault to the garage so it could be test driven. After Short arrived at the garage, Jollie got into the driver’s seat with Short in the front passenger seat. Just as they were leaving, defendant ran from the garage stating “that he was going too.” However, before the test drive got underway, defendant left the Renault and went to the car in which the Smith brothers had arrived for the announced purpose of getting “the goody box.” When defendant and the “goody box” (described as a “metal candy can”) were ensconced in the Renault’s back seat, the trio proceeded in the Renault towards the Thayer-Koshkonong area. While en route to that destination, defendant poked Short in the ribs with what was assumed to be a gun and told Short to “Get out.” As Jollie slowed the speed of the Renault and pulled onto the highway’s shoulder, Short “kicked the door open and rolled out of the vehicle.” Jollie and defendant “took off down the highway.”

Short reported the incident to the authorities and soon thereafter the .Renault was stopped at a church parking lot in Alton, Oregon County. Jollie and defendant were told to evacuate the car. When the pair did so, defendant fled the scene on foot and escaped injury from two fired shots. When the Renault was searched “the goody box” was found and later examination revealed it contained marihuana weighing 55.6 grams. Pour law officers testified concerning the search of the Renault, the discovery of the “goody box,” the retrieval of its spilled contents from the car and the weighing thereof, its transportation to the Missouri Highway Patrol Laboratory for testing and its return to be used as trial evidence.

Defendant and his two brothers, Jollie and Rowdy, testified that on the night in question they went in Rowdy’s car to the West Plains garage concerning the Renault. Each stated there had never been a “goody box” in Rowdy’s car which had been transferred to the Renault.

Defendant has not challenged the sufficiency of the evidence to support the jury’s verdict. Nonetheless, in his first point relied on defendant claims the trial court erred in admitting the marihuana exhibits into evidence (1) because the alleged careless handling of the “goody box” prevented him from obtaining fingerprints therefrom to demonstrate he had not handled the can and (2) because the evidence of the chain of possession of the contents of the “goody box” was insufficient to provide a reasonable assurance that the contents had not been altered or substituted.

Even in a circumstantial case, the prosecution is not required to conclusively establish guilt or exclude every hypothesis of innocence. State v. Brown, 660 S.W.2d 694, 699[12] (Mo. banc 1983). We do not view the instant case as a case predicated wholly upon circumstantial evidence as state’s witness Short directly testified that defendant had, in fact, obtained the “goody box” from brother Rowdy’s car and transferred it to the Renault where it was ultimately discovered by the authorities. Also, the record reveals that after the lawmen had been advised of Short’s forcible ejectment from the Renault by defendant and Jollie, and had stopped the vehicle, they discovered the “goody box” and its contents in the Renault and observed defendant’s flight from the scene. The supposed presence or absence of any designated person’s readable fingerprints on the “goody box” would not, per se, absolutely contradict or disprove the testimony of Short and the officers. In any event, defendant’s supposition as to what an unadulterated examination of the “goody box” might have demonstrated smacks of the same speculation and conjecture as found in the pronouncement that “If the dog hadn’t stopped to scratch, he would have caught the rabbit.”

Admittedly there were minor contradictions and inconsistencies in the testimony of the officers who searched the Renault as to which particular officer or officers had up-ended the “goody box” or spilled its contents and which particular officer or officers had sacked the spilled marihuana and placed it in evidence bags. Nevertheless, there was ultimate agreement that the “goody box” and its contents were found inside the Renault and that the contents had been put into marked evidence bags which were transported to the laboratory and there declared to contain marihuana. The lesser discordancies noted, supra, did not prevent the remainder of the testimony from being substantial. Such inconsistencies and contradictions were matters properly left for determination of the jury as fact finder. State v. Ivy, 642 S.W.2d 128, 130[1] (Mo.App.1982). The evidence of the chain of possession of the contents of the “goody box” was sufficient assurance, as the jury obviously found, that said contents had not been altered or' substituted. Defendant’s first point is denied.

Defendant’s second point relied on claims the trial court erred in failing to instruct on the possession of 35 grams or less of marihuana [§ 195.200. l(l)(a) ] because it is a lesser included offense of possessing more than 35 grams thereof as denounced by § 195.200.l(l)(b).

Defendant frankly acknowledges his inability to find any case specifically holding that possession of 35 grams or less of marihuana is a lesser included offense of possessing more than 35 grams of the substance. However, he relies on § 556.046.1 which, in part, provides that a defendant may be convicted of an offense included in the offense charged provided “(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” However, defendant ignores the second paragraph of the statute which states: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”

The Missouri Highway Patrol chemist who examined state’s exhibits A & E, consisting of the “goody box” and evidence of the substances removed from the Renault, testified unequivocally and without contradiction that Exhibit B consisted of 55.6 grams of marihuana. When some confusion occurred between the numerical markings of the exhibits, i.e., State’s Exhibit 2, and the trial marking of the same exhibit, i.e., State’s Exhibit B, the witness, in response to an admonition to “use the letter,” replied: “The letter? Okay. State’s Exhibit B and State’s Exhibit E, I weighed the plant material and it weighs one gram.” Defendant seizes upon and isolates this single answer to argue there was testimony that B & E exhibits had a combined weight of only one ounce whereas there was repeated testimony the marihuana in Exhibit B alone weighed 55.6 grams.

Each involved exhibit, except Exhibit B, contained only traces of marihuana and the contents of some exhibits were so infinites-timal the chemist did not undertake weighing them. It is obvious the witness’s correction of the numerical to the alphabetical designation of the exhibits did not constitute a contradiction that Exhibit B did, in fact, weigh more than 35 grams. Even accepting defendant’s claim of the possession of 35 grams or less being a lesser included offense of a charge of possessing more than 35 grams, it would have been error for the court to have instructed the jury on a supposed lesser included offense which was not supported, as here, by the evidence. State v. Story, 646 S.W.2d 68, 73[7] (Mo. banc 1983). Defendant’s second point is denied.

In full, defendant’s third and final point reads: “The trial court erred as a matter of law and to the prejudice of the defendant when it overruled defendant’s motions in limine to exclude evidence of other alleged crimes arising out of this occurrence because such evidence did not tend to prove a material fact in issue and because it was hearsay in nature, having a dangerous tendency to mislead, prejudice, and inflame the minds of the jury.”

Any reader acquainted with Rule 30.06(d) will quickly note defendant’s noncompliance with the mandatory requirements thereof. In his point defendant does not undertake to advise what the evidence was that pertained to “other alleged crimes arising out of this occurrence.” Also, the point does not indicate “wherein and why” the evidence of other crimes does not tend to prove a material fact in issue or “wherein and why” it was hearsay and tended to inflame the jury. Courts considering appeals have no duty to search the transcript or the argument section of a brief to ascertain the possible intendment of points penned in an abstract and conclusory manner. State v. Lyell, 634 S.W.2d 239, 243 (Mo.App.1982); State v. Holt, 603 S.W.2d 698, 701[1] (Mo.App.1980). But for the existence of Rule 30.09(a) and our failing to give defendant a second chance to do correctly that which he should have done in the first instance, this point could be denied for failure to comply with Rule 30.06(d). Because of Rule 30.09(a), we shall consider the point on its merits, if any.

In the argument section of defendant’s brief concerning this point, he asserts Brent Short’s testimony anent defendant’s use of a gun to force Short from the Renault was improper and not necessary to prove defendant’s possession of marihuana. Defendant also claims it was error to permit any official participating in the matter to testify concerning the use of a gun because they received such information via a radio dispatch which made it hearsay.

Defendant’s point, supra, acknowledged the evidence of other crimes arose “out of this occurrence” but argues proof thereof was not necessary to show that defendant possessed the marihuana. Evidence of other crimes is proper when it tends to establish intent, motive, the absence of mistake or accident, a common scheme or plan embracing two or more crimes so related to each other that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime at trial. If evidence of other crimes has a logical tendency to prove a material fact in issue, that evidence should not be excluded because it incidentally proves defendant guilty of other crimes. Moreover, and of especial importance here, where the circumstances are such as to constitute a continuous transaction in the accomplishment of a common design so that proof of one cannot be made without showing the entire facts, the entire facts are admissible as they are regarded as being part of the res gestae. When such circumstances exist, the prosecution is not compelled to nicely sift and separate the evidence. State v. Hindman, 543 S.W.2d 278, 287[24,25] (Mo.App.1976).

How could the officers have possessed good and lawful reason to stop the Renault safely and take charge of its contents and occupants if they had not been made aware that defendant and Jollie had taken at least questionable possession of the vehicle via defendant forcibly ejecting Short from the car at gunpoint? To say that Short’s recountings of defendant's conduct in possessing a weapon and forcing his ejectment from the Renault at gunpoint was not a part of the continuous transaction of defendant assuring himself, inter alia, of sole and safe possession of the marihuana is, in our opinion, far from plausible. As to defendant’s claim it was error for the officers to testify concerning the radio dispatch that defendant was armed because it was hearsay, we observe that such evidence had already been received into evidence by the prior testimony of Short on the witness stand. When Short was a witness and subject to cross-examination, the rationale of the hearsay rule as it relates the officers’ testimony does not apply when their declarations were merely repetitious of what was already in evidence. However, even if such repetitive testimony be considered hearsay, it was nonprejudicial. State v. Thomas, 664 S.W.2d 56, 59 (Mo.App.1984), and cases there cited. Defendant’s final point is denied and his request for oral argument is also denied.

Judgment affirmed.

CROW, P.J., PREWITT, C.J., and FLAN-IGAN and MAUS, JJ., concur.

      . Statutory and rule references are to V.A.M.S. and V.A.M.R.


source: Caselaw Access Project

author: BROCK, Justice. HARBISON, Justice,

license: Public Domain

text:
    OMNICON, INC., Plaintiff-Appellant, v. John K. KING, Commissioner of Revenue for the State of Tennessee, Defendant-Appellee. EPPING REALTY, INC., Plaintiff-Appellant, v. John K. KING, Commissioner of Revenue for the State of Tennessee, Defendant-Appellee.
    Supreme Court of Tennessee, at Jackson.
    Feb. 19, 1985.
    Robert E. Orians, Memphis, for plaintiffs-appellants.
    Joe C. Peel, Asst. Atty. Gen., Nashville, for defendant-appellee; William M. Leech, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

These consolidated actions were brought by plaintiffs to recover corporate franchise taxes paid under protest for the tax years 1976-79.

In 1972, a general partnership was formed between Cook Realty Co. No. 1 of Tennessee, Inc. [Cook], and Decoma Enterprises, Inc. [Decoma], to conduct business under the name of Epping Forest Associates. Each partner owned a 50% interest in the partnership. The taxpayers, Omni-con, Inc. [Omnicon] and Epping Realty, Inc. [Epping Realty] succeeded to the 50% interest of Decoma and Cook, respectively. Omnicon and Epping Realty are wholly owned subsidiaries of Allen & O’Hara, Inc.

Epping Forest Associates engaged in the development and operation of Epping Forest, a real estate project. During 1976-1979, the real property owned by the Ep-ping Forest Associates partnership was encumbered by mortgages. The partnership had net operating losses and a negative net worth. As a result, on its franchise returns for those years, each taxpayer included a zero value for its respective interest in the partnership in computing its minimum tax base under T.C.A., § 67-2908 [now § 67-4-906]. The taxpayers had no assets other than the partnership interest; accordingly, each paid only the $10.00 minimum franchise tax.

The Commissioner audited the returns of the taxpayers and assessed additional taxes, interest and penalties in the amount of $25,812.86 against each of them. The additional assessments were the result of the inclusion of 50% of the book value of the real and tangible personal property of the partnership in the minimum tax base • of each taxpayer.

The taxpayer paid the additional assessments under protest, and brought these suits. On cross motions for summary judgment, the Chancellor granted the motion of the Commissioner and dismissed the complaints. This appeal followed.

The issue on appeal is the proper method of valuing a corporate taxpayer’s interest in a partnership for purposes of the Franchise Tax Law, T.C.A., § 67-4-901, et seq. The taxpayers contend that the value of the partnership interest, as represented by the capital accounts of the partnership, is the figure which should be the basis of the valuation. The Commissioner contends that the book value of the assets of the partnership is the proper basis for the valuation. We agree with the position of the taxpayers and reverse the Chancellor’s grant of summary judgment in favor of the Commissioner.

The Franchise Tax is not an ad valorem property tax but is a tax levied upon the privilege of engaging in business in corporate form in Tennessee. It is levied upon the net worth or capital of the corporation. Tollett v. Franklin Equities, Inc., 586 S.W.2d 96, 97 (Tenn.1979); Crown Enterprises, Inc. v. Woods, 557 S.W.2d 491 (Tenn.1977). The minimum net worth of a corporation, for purposes of the Franchise Tax, is “the actual value of the property owned, or property used, in Tennessee.” T.C.A., § 67-2908.

In order to determine the minimum net worth of these corporate taxpayers under T.C.A., § 67-2908, we must determine what property is owned or used by the taxpayers in Tennessee. In the absence of an indication that the legislature intended otherwise, we make that determination with reference to general principles of partnership law.

The property rights of a partner are (1) his rights in specific partnership property, (2) his interest in the partnership, and (3) his right to participate in the management of the partnership. T.C.A., § 61-1-123. A partner’s interest in specific partnership property is his interest as a co-owner of the property with the other partners, holding as a tenant in partnership. T.C.A., § 61-l-124(a). As a tenant in partnership, a partner has no right to possess specific partnership property for any purpose other than partnership purposes, without the consent of his partners. T.C.A., § 61-l-124(b)(l). A partner’s interest in the partnership is his share of the profits and surplus. T.C.A., § 61-1-125.

It is the actual value of the three property rights outlined above, comprising a partner’s interest, which must be included in the minimum measure. We believe that the net worth of the partnership is a more accurate basis for calculating the actual value of those property rights than is the book value of the assets of the partnership. The book value of the assets of the partnership reflects the actual value of the property of the partnership rather than the actual value of the partner’s intangible property interest, the property interest for which a value is sought.

The truth of the preceding statements is evidenced by the facts in the instant case. The record reflects that in 1975, Allen & O’Hara, Inc. purchased Cook from its parent corporation. Allen & O’Hara paid only $168.52 for all of the stock of Cook, and, in addition, Allen & O’Hara obtained from Cook and its parent a release of all claims to $650,000 which was owed to Cook by Epping Forest Associates. The terms of the sale clearly indicate that the value of the partnership interest sold was a negative figure.

Both parties rely upon our decision in Tollett v. Franklin Equities, supra, 586 S.W.2d 96 (Tenn.1979). In that case, the issue before this Court was whether the intangible assets of a corporation, in particular an interest in a partnership, were to be included in the statutory franchise tax base. We held that the word “property” as used in T.C.A., § 67-2909, without any qualifying language, included intangible property rights such as an interest in a partnership. The value of that interest was not at issue.

In Franklin Equities, we expressly rejected the Commissioner’s argument that “through some sort of imputation or ‘attribution,’ outright ownership of the real estate and tangible personal property of the partnership should be ascribed to the corporate taxpayer.” 586 S.W.2d at 98. The Commissioner’s present attempt to value the taxpayers’ property as 50% of the book value of the partnership’s property is, in substance if not form, an attempt to attribute ownership of the property to the taxpayers. Again, as in Franklin Equities, we find no statutory or evidentiary basis for the Commissioner’s position and therefore we reject it.

The grant of summary judgment in favor of the Defendant is reversed. The matter is remanded to the trial court for further proceedings not inconsistent with this Opinion. Costs are assessed against the Defendant.

FONES and DROWOTA, JJ., concur.

HARBISON, J., filing dissent in which COOPER, C.J., joins.

HARBISON, Justice,

dissenting.

I respectfully dissent.

T.C.A. § 67-4-906(a)(l) provides that the measure of franchise tax

“shall in no case be less than the actual value of the property owned, or property used, in Tennessee.”

While it is true that the franchise tax is not an ad valorem tax, the minimum tax base is fixed by “actual value” of property used or owned by the taxpayer. Had the corporate taxpayer in this ease held title to the apartment buildings involved, their actual value, not their net equity, would have been used in computing the franchise tax base. The same is true of property leased or rented to a taxpayer, although there are specific provisions in the statutes for computing the value of rented property. T.C.A. §§ 67-4-906(a)(3), (4), and 67-4-906(b).

It is true that in the case of Tollett v. Franklin Equities, Inc., 586 S.W.2d 96 (Tenn.1979), the Court held that the statutes did not provide for attribution or imputation of ownership to the corporate taxpayer. That case, however, did not involve questions of the valuation of properties used by the corporate taxpayer, and nothing therein is inconsistent with the Commissioner’s assessment of the property used by the taxpayer in the present case. The thrust of Tollett v. Franklin Equities, Inc., supra, was to prevent corporate taxpayers from avoiding the franchise tax through the use of non-corporate subsidiaries. In that case it was claimed that the assets involved were totally beyond the reach of the franchise tax statutes. This Court held to the contrary.

Unless, however, assets held by subsidiary partnerships or joint ventures are included at their actual value, the purposes of T.C.A. § 67-4-906 will be frustrated, and the holding of the Court in the Tollett case, supra, could be essentially negated.

For these reasons, I would affirm the judgment of the Chancellor. I am authorized to state that Justice Cooper joins in this dissent.


author: HARBISON, Justice.

text:
    STATE of Tennessee ex rel. Robert COOPER, Jr., Plaintiff/Appellee, v. Cynthia L. Cooper HAMILTON, Defendant/Appellant.
    Supreme Court of Tennessee, at Knoxville.
    April 15, 1985.

      William 0. Shults, Newport, for plaintiff-appellee.
    William M. Leibrock, Newport, for defendant-appellant.
   OPINION

HARBISON, Justice.

This case involves an interstate custody dispute, and the question presented is whether the trial court in Tennessee properly exercised jurisdiction to modify a previous custody award made in Indiana.

The trial court held that jurisdiction existed and modified the visitation provisions of the Indiana decree.

The Court of Appeals reversed. We agree with the results reached by that court, but for different reasons.

The essential facts are undisputed. There are some conflicts in the testimony, but for the most part these do not touch the jurisdictional issues.

The parties were divorced on January 24, 1980, by a decree entered in the Superior Court of Laporte County, Indiana. At that time they had been residents and citizens of Indiana for more than twenty years. Their three minor children were born there and had lived in that state all of their lives. The divorce proceedings were sharply contested. There was a great deal of disharmony and tension in the family prior to the dissolution of the marriage. The divorce decree awarded custody of the two older children to appellee, Robert Cooper, Jr., but custody of the youngest child, Whitney Cooper, was awarded to her mother, appellant here. The child was at that time about three and one-half years of age. The decree contained provisions for visitation by Mr. Cooper, and it also provided that Mrs. Cooper would undergo some counseling in connection with her relations to the older children. Nothing in the decree, however, expressly prohibited Mrs. Cooper from leaving the jurisdiction or removing Whitney therefrom.

Mrs. Cooper left Indiana the day following the divorce and moved to Cocke County, Tennessee. About one month later she married Timothy Hamilton, whose parents and other relatives lived in Cocke County. She and Mr. Hamilton have been residents of that county since their marriage. Mrs. Hamilton brought her daughter, Whitney, with her from Indiana, and the child has continuously resided in Tennessee since January 1980.

Mr. Cooper contended that he had no knowledge of the whereabouts of his former wife or of his daughter until shortly before he filed a habeas corpus petition in Cocke County in January 1981. The evidence on this point is disputed, and there is testimony that he had suspected that his former wife had come to Cocke County immediately after the divorce. He himself made two or three visits to that county, as well as to other places, in an effort to locate her and the child. In February 1980, one month after the divorce decree was entered, he caused a bench warrant to be issued by the Indiana court, charging his former wife with contempt. On May 12, 1980, he filed a petition to modify the provisions of the divorce decree regarding the custody of Whitney. On the same day that the petition was filed, the Indiana court entered an order granting Mr. Cooper temporary custody of Whitney.

There is no contention that there was any notice or service of process upon appellant, the mother of the child, in connection with either of these proceedings. There was some indication in colloquy between the trial court and counsel that Mr. Cooper had caused publication to be made for his former wife, but no evidence to that effect was ever introduced. There is no indication that Mr. Cooper has ever pursued the Indiana proceeding further, or caused any process in connection therewith to be served upon appellant. His habeas corpus petition in Tennessee, however, did seek to have the child returned to Indiana so that the courts of that state might pass upon the modification issue. The mother, Mrs. Hamilton, also filed a petition in the Tennessee court seeking modification of the visitation provisions of the Indiana decree.

The trial judge concluded that jurisdiction of the modification issue lay in Tennessee. After a full hearing he determined that custody of the child should remain with her mother, but he did modify in some respects the visitation provisions of the Indiana decree. He held that the ex parte proceedings instituted in Indiana after the original divorce in January 1980 were of no force and effect, since due process had not been accorded to appellant in connection therewith.

The Court of Appeals reversed and held that Tennessee had no jurisdiction of the case, because it found that Indiana was the “home state” of the child. We are of the opinion that this conclusion was erroneous under both the Federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, and the Tennessee version of the Uniform Child Custody Jurisdiction Act, T.C.A. §§ 36-6-201 to 225. Under those statutes Tennessee was the home state at the time of the hearing in the Tennessee trial court. Under some circumstances it could modify a custody decree from another state, but not under the circumstances shown in this case.

The Tennessee statute defines the “home state” as that state:

“... in which the child immediately preceding the time involved lived with his or her parents, a parent, or a person acting as a parent for at least six (6) consecutive months, and in the case of a child less than six (6) months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six (6) months or other period_” T.C.A. § 36-6-203. Accord 28 U.S.C. § 1738A(b)(4).

The Court of Appeals held that the phrase “immediately preceding the time involved” meant the period of time prior to the institution of the action in which the initial custody decree was rendered.

With respect to an initial custody decree this is correct. As to a modification proceeding, however, we believe that the holding of the Court of Appeals is erroneous and would be contrary to the spirit and purpose of both the federal and state statutes. A further provision of the Tennessee statute makes clear that the statutory reference to “the time involved” is to the period immediately preceding the institution of a modification proceeding, and not the original custody determination.

T.C.A. § 36-6-203(a) provides as follows:

“A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state:
(A) Is the home state of the child at the time of the commencement of the proceeding_” (Emphasis added).

Clearly, in the case of a modification proceeding, the statute has reference to the period of time prior to the institution of that proceeding, not to the months preceding the initial custody determination. Otherwise, no state other than that which originally rendered the custody decree could have authority under either the federal or the state statute to modify an initial award.

This was the holding of the Supreme Court of Connecticut in the case of Kioukis v. Kioukis, 185 Conn. 249, 440 A.2d 894 (1981). There the mother of a minor child had obtained custody in a Connecticut divorce proceeding. She moved with the child to Tennessee. The father continued to reside in Connecticut. Three years later he undertook to institute a modification proceeding in Connecticut. The court held that Tennessee had become the “home state” of the child, but also held that Connecticut might still have primary jurisdiction under other provisions of the Uniform Child Custody Act. With respect to “the time involved,” the Court said:

“Connecticut was not the home state of the child at the commencement of the modification proceeding. ‘The proceeding’ refers to the modification action, and not to the original complaint seeking a dissolution of the marriage of the parties, which was in 1976. To hold that ‘the proceeding’ refers to the original dissolution action would confer perpetual jurisdiction over matters of custody to the courts of the state which granted the dissolution, regardless of whether the parties or child had any further connection with that state.” 440 A.2d at 898.

That opinion and the comments of the Commissioners who drafted the Uniform Child Custody Act make clear that “jurisdiction” in the primary sense of authority or power to act could possibly lie in more than one state simultaneously but only one state is given priority in the exercise thereof. The fact that a state is or has become a “home state” does not, in and of itself, give that state authority to pre-empt the jurisdiction of all other states. Any indication to the contrary in the Tennessee cases of Finney v. Finney, 619 S.W.2d 130, 132-33 (Tenn.App.1981), or Voninski v. Voninski, 661 S.W.2d 872, 878-79 (Tenn.App.1982) is erroneous, and those opinions are modified or overruled to the extent that they may be in conflict with this opinion.

The Tennessee statutes themselves are clear on this point. T.C.A. § 36-6-203(a) provides that a court of this state has jurisdiction to make an initial or a modification decree if Tennessee is the home state of the child at the time of the commencement of the proceeding. It also has jurisdiction in certain other circumstances, where there is no home state or where no other state at all appears to have jurisdiction. The statute, however, clearly makes a distinction between possessing jurisdiction generally and the actual exercise thereof. It places explicit restrictions upon the exercise of jurisdiction to modify the decrees of other states.

Subsection (d) of T.C.A. §§ 36-6-203 provides:

“Jurisdiction shall not be exercised to modify an existing custody decree except in accordance with § 36-6-215.”

The language could not be plainer. Jurisdiction simply shall not be exercised, even though Tennessee has become the “home state”, except in accordance with the code section cited. That section provides as follows:

“If a court of another state has made a custody decree recognizable and enforceable under § 36-6-213, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this part or has declined to assume jurisdiction to modify the decree and (2) the court of this state has jurisdiction.” T.C.A. § 36-6-215(a).

There are statements in the opinions of the Court of Appeals cited previously to the effect that after a six-month period of residence and the acquisition of a “home state” status, the courts of this state may assume jurisdiction to modify the decrees of other states under all circumstances. This is simply not what the statute provides, nor was it the intent of the drafters. The comments of the Commissioners to § 14 of the Uniform Child Custody Act make this clear. They state:

“Courts which render a custody decree normally retain continuing jurisdiction to modify the decree under local law. Courts in other states have in the past often assumed jurisdiction to modify the out-of-state decree themselves without regard to the preexisting jurisdiction of the other state (citations omitted). In order to achieve greater stability of custody arrangements and avoid forum shopping, subsection (a) declares that other states will defer to the continuing jurisdiction of the court of another state as long as that state has jurisdiction under the standards of this Act. In other words, all petitions for modification are to be addressed to the prior state if that state has sufficient contact with the case to satisfy section 3. The fact that the court has previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere (citations omitted).
“For example, if custody was awarded to the father in state 1 where he continued to live with the children for two years and thereafter his wife kept the children in state 2 for 6V2 months (3½ months beyond her visitation privileges) with or without permission of the husband, state 1 has preferred jurisdiction to modify the decree despite the fact that state 2 has in the meantime become the ‘home state’ of the child_” Unif. Child Custody Jurisdiction Act § 14, Commissioners’ note, 9 U.L.A. 154 (1968).

This was the holding of the Supreme Court of Georgia in the case of Steele v. Steele, 250 Ga. 101, 296 S.E.2d 570 (1982). In that case a divorce decree had been rendered in Wisconsin, which unquestionably had jurisdiction at the time of rendition. Later the mother took the children to Georgia and resided in Georgia for more than one year prior to seeking a modification of the Wisconsin decree in that state. The father had remained in Wisconsin, and he instituted proceedings there to modify the Wisconsin decree. The Supreme Court of Georgia, reversing the trial court, held that even though Georgia had become the “home state” of the children, it should not exercise jurisdiction to modify the Wisconsin decree and that any relief would have to be sought in the original rendering state.

There can be no question but that the intention of the drafters of the Uniform Act was to give priority to the original rendering state, and not to other states, so long as at least one of the contestants to the original action remained in that state, and the state otherwise retained jurisdiction.

“The basic scheme of the Act is simple. First, one court in the country assumes full responsibility for custody of a particular child. Second, for this purpose a court is selected which has access to as much relevant information about the child and his family in the state as possible. Third, other essential evidence, which is inevitably out-of-state in the case of an interstate child, is channeled into the first court which might be called the ‘custody court.’ Fourth, other states abide by the decision of the custody court and enforce it in their territory, if necessary. Fifth, adjustments in visitation and other ancillary provisions of the decree, and custody changes, if any, are as a rule made by the original custody court. Sixth, if the child and his family no longer have appreciable ties with the state of the original court, a new custody court is selected to take the place of the original one for purposes of adjustments and modifications, and pertinent information is channeled from the prior to the subsequent custody court.” Bodenheimer, “The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand.L.Rev. 1207, 1218 (1969).

In the Steele case, supra, both Georgia and Wisconsin had adopted the Uniform Child Custody Act, as have both Tennessee and Indiana. The Tennessee version differs in some respects from the Uniform Act, especially in the provisions of T.C.A. § 36-6-203(a)(2), but those variations are not dispositive here, especially in light of the explicit language of T.C.A. § 36-6-203(d) quoted above with respect to modification of out-of-state decrees.

There is no question in the present case but that the Indiana court originally had jurisdiction when it rendered the divorce and custody decree. Mr. Cooper and the two older children at all times continued to reside in that state. The Indiana court retained jurisdiction, which it had exercised “under jurisdictional prerequisites substantially in accordance” with the Tennessee statute. T.C.A. § 36-6-215(a).

The same is also true with respect to the controlling provisions of the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. With respect to the continuing jurisdiction of the rendering court, that statute provides:

“The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.” 28 U.S.C. § 1738A(d).

The requirement of subsection (c)(1) referred to is that the rendering court continues to have jurisdiction under the law of its own state, and no question in that respect has been raised in the present case.

The federal statute also limits the authority of courts of other states to modify a previous custody decree as follows:

“A court of a state may modify a determination of the custody of the same child made by a court of another State if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.” 28 U.S.C. § 1738A(f).

In the law review article of Brigitte M. Bodenheimer, Reporter for the Special Committee preparing the Uniform Child Custody Jurisdiction Act, the following is stated:

“A typical example is the case of the couple who are divorced in state A, their matrimonial home state, and whose children are awarded to the wife, subject to visitation rights of the husband. Wife and children move to state B, with or without permission of the court to remove the children. State A has continuing jurisdiction and the courts in state B may not hear the wife’s petition to make her the sole custodian, eliminate visitation rights, or make any other modification of the decree, even though state B has in the meantime become the ‘home state’ under section 3. The jurisdiction of state A continues and is exclusive as long as the husband lives in state A unless he loses contact with the children, for example, by not using his visitation privileges for three years.” Bodenheimer, op. cit. supra at 1237.

In the present case, the Indiana court has n.ot as yet declined to exercise jurisdiction. It, of course, could do so and could refer the matter to Tennessee as a more convenient forum, especially since there has already been a full hearing in Tennessee. Unless and until it does so, however, primary jurisdiction to modify the Indiana decree remains with the Indiana courts, not with the Tennessee courts, even though this has become the “home state” of the child whose custody is involved.

The judgment of the Court of Appeals is affirmed for the reasons stated herein. The cause will be remanded to the trial court for any further proceedings which may be necessary. Costs incident to the appeal are taxed to appellant.

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


author: CRAWFORD, Judge.

text:
    Elizabeth BOWERS and Norma Jean Boals, Plaintiffs-Appellants, v. William J. THOMPSON, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Nov. 27, 1984.
    Application for Permission to Appeal Denied April 1, 1985.

      Joseph L. Lackey, Jr., Nashville, for plaintiffs-appellants.
    Philip C. Kelly, Gallatin, for defendant-appellee.
   CRAWFORD, Judge.

Plaintiffs, Elizabeth Bowers and Norma Jean Boals, appeal from the judgment of the trial court on a jury verdict for the defendant, William J. Thompson. The case arose as the result of an accident involving an automobile driven by Bowers and a pickup type truck driven by Thompson. Although the case was tried with two companion cases resulting in verdicts for defendants in all cases, the only parties involved in this appeal are plaintiffs-appellants Bowers, a minor 17 years of age at the time of the accident, her mother, Boals, who was responsible for Bowers’ medical bills, and defendant, Thompson. However, as hereinafter noted, the admission of evidence by the trial court will be governed by the trial status at that time.

The record reveals that at the time of the accident, Bowers was driving a car owned by her boyfriend, Jesse R. Oatsvall, with his permission and was leaving a private driveway in a rural area to enter a public highway. As she pulled onto the highway, her vehicle was struck by the pickup truck owned and driven by Thompson. The suit by Bowers and Boals is for damages sustained by them for the personal injuries and medical expenses incurred. Plaintiffs have presented three issues for review which we shall discuss separately.

ISSUE NO. 1

Did the trial court err in refusing to strike as an affirmative defense the failure of the plaintiff to have a Tennessee driver’s license and err in not charging the jury to disregard the testimony as it pertains to the failure to have a Tennessee driver’s license?

Plaintiffs assert that proof concerning Bower’s lacking a driver’s license is inadmissible on the issue of her contributory negligence. We have no quarrel with plaintiffs’ assertion in this regard; however, plaintiffs fail to recognize that this case was tried with two other eases, one of which was a suit by William Thompson and wife Eva Thompson against Jesse R. Oatsvall, Bowers and Boals. In that case, in addition to the alleged liability of Oatsvall on the theory of respondeat superior, Thompson asserted that Oatsvall was negligent in his entrustment of the vehicle to Bowers, alleging in substance that she was incompetent as a driver and that she had failed the driver’s license test on two previous occasions. The introduction of proof in support of these allegations was material and relevant on the issue created by the allegations of Thompson and was, therefore, properly admitted by the trial court.

Plaintiffs assert in the alternative that the trial court was in error in not instructing the jury to disregard the proof. Nowhere in the record do we find a request by plaintiff for an instruction directing the jury to consider this evidence for the limited purpose of its relation to the issue created by Thompson against Oatsvall. In the absence of such a special request, the trial court should not be held in error. Cohen v. Cook, 62 Tenn.App. 292, 462 S.W.2d 502 (1969); Wallace v. Knoxville’s Community Development Corp., 568 S.W.2d 107 (Tenn.App.1978). For these reasons, we find the first issue presented by plaintiffs to be without merit.

ISSUE NO. 2

Did the trial court err in allowing testimony that the plaintiff had, at one time in her life, smoked marijuana cigarettes and had drunk alcohol when there was no proof introduced that any of these events took place at or about the time of the accident or were in any way related to the cause or the accident?

The record of the cross-examination of Bowers reveals that the testimony concerning the use of marijuana and the use of alcohol were two separate incidents in the trial of the case and should be so treated in our consideration. Although the transcript dealing with this issue is quite lengthy, we quote a major portion thereof as it pertains to the evidence complained of. As to the alcohol:

Q. Now, you stated that you were concerned about your condition after you got out of the hospital.
A. Yes.
Q. And that is correct, is it not?
A. Uh-huh.
Q. But even with that concern, you drank, did you not, intoxicants?
A. I did drink. I didn’t drink all the time. I had drank occasionally. I had done that. And it was the fact that I knew that I was not — I could not do that. I’m not supposed to do that. I don’t drink now because it could kill me because I don’t have a spleen. And it was hard for me to accept that, that I no longer have a spleen. I can’t do the—
Q. Well, my question really is this and I don’t want to cut you off, Randy Oats-vall knew you drank, did he not?
A. Yes, he did.
Q. He let you have the car — I’m not picking on you — but he knew that you drank, didn’t he?
MR. LACKEY: If the Court please, I’m going to object again. If Mr. Kelly is saying this woman was under the influence of alcohol or anything when this accident happened, why didn’t he ask her that question.
MR. FRED KELLY: All right.
THE COURT: Well, I think that you need to connect the relevancy of these questions to the accident.
MR. FRED KELLY: What I’m trying to do is get on Mr. Oatsvall’s cause of action. All right.
MR. LACKEY: Your Honor, please, I think Mr. Kelly was trying to get in the minds of this jury this girl drinks and she smokes marijuana, and try to get them out of the fact that she was involved in a serious automobile accident.
THE COURT: All right.
MR. FRED KELLY: I’m going to back clear off. We’re losing sight of the— THE COURT: Ask the question to see whether or not these questions have any bearing on the issues of liability. MR. FRED KELLY: Right. Now, I’m going to back all away from this with one other question.
Q. (By Mr. Kelly) Do you remember enough about the evening before the accident to tell this Court and Jury whether or not you.had been drinking to such an extent that it would have lasted until the next day?
A. I do not remember the evening, but I do know I did not drink because I had went over to Randy’s house for the fact that I was going to the doctor the next — I had an appointment with the dentist, or I had — I don’t remember. I had the dentist appointment. That’s what I was there for.

Although the trial court apparently did not consider the testimony about alcohol as relating to plaintiff’s physical condition after the accident, the record indicates the initial thrust of the cross-examination was in that regard. Bowers candidly admitted that because of the injuries sustained and aggravation to be expected she was not to use alcoholic beverages. She nevertheless admitted partaking thereof. We do not deem it necessary to cite authorities on the proposition that a plaintiff must attempt to minimize her damages. The testimony elicited on cross-examination concerned her post accident use of alcohol. Perhaps defendant’s counsel strayed a bit too far in the remainder of his cross examination concerning the use of alcohol, but this error standing alone probably did not influence the jury.

As to the marijuana we again quote from the trial record:

Q. Do you remember what you had done the night before [the accident]?
A. No, I don’t. All I know is that I did stay there. I did spend the night.
Q. Do you know what you did the evening before is what I’m getting at?
A. No, I don't.
Q. Well, you very candidly said whether this evening, I suppose — now, I really don’t know, but you had smoked marijuana, you were a marijuana smoker.
A. I had tried it before.
MR. LACKEY: I object to that.
THE COURT: What is the basis of your objection?
MR. LACKEY: I don’t know whether she has smoked marijuana or not or did or didn’t but I don’t know what relevancy it has to this lawsuit and this accident. If he is claiming she was under the influence of marijuana at the time of this accident, I think he needs to ask that question.
MR. FRED KELLY: That is my question that I’m going to ask.
THE COURT: I’m going to overrule the objection.
MR. LACKEY: Excuse me just one minute. Could we approach the bench?
THE COURT: Let’s let the Jury step to the Jury room minute.
******
MR. LACKEY: If the Court please, that question is based on a question that Mr. Kelly asked at this lady’s discovery deposition. And he said — he started out with this premise, I think he used the word candidly, or you very openly admitted, that you smoked marijuana on the evening before this incident. No, I think he said on this evening or another evening before this incident. There’s no excuse, in my opinion, for that to be injected into this lawsuit except in the form of question: Were you under the influence of marijuana at the time of this accident, or had you smoked marijuana at a time with respect to this accident that it would have affected your driving in any way? And we would respectfully “submit that there is — the proof shows this lady got up in the morning at four o’clock, came home, went back to sleep, got up, and left to go to a friend’s house.
MR. FRED KELLY: -I want to ask the question in that form if you want to cut this short.
MR. LACKEY: Well, I understand now. And he’s going to ask the question in that form, if the Court please, but he’s already put in the minds of the Jury this lady’s admission at a previous date of smoking marijuana. And that admission of her smoking marijuana at a previous date has absolutely nothing to do with this lawsuit, but it does get in the minds of this Jury that she has smoked marijuana. And in my opinion, it was done to arise passion, prejudice, and caprice in the minds of the Jury, and I think it’s entitled to be a mistrial and we need to start all over with another Jury and let him ask the question properly.
MR. FRED KELLY: Well, now suppose she answers the question yes?
MR. LACKEY: Well, you should have asked that question first, in my opinion. And if she did, then I wouldn’t have any grounds for this objection.
******
THE COURT: I’m going to overrule the motion for a mistrial. I’m going to allow Mrs. Colley [Bowers] to finish her answer. I'll let her give any answer she wants to and explanation.
MR. LACKEY: Can she do it outside the presence of the Jury so I’ll know what the answer is going to be?
MR. KELLY: What’s the reason for that on cross examination?
MR. LACKEY: Well, I withdraw that request.
THE COURT: Are you all ready? You understand, Mrs. Colley [Bowers], you have a right to explain. You were asked the question about smoking marijuana.
WITNESS: Yes.
MR. FRED KELLY: And may I make a suggestion, so I will not repeat the question, so I will not push too much other than to get the answer to what I asked, if she would just give the answer without me repeating the question. I think the witness knows the question.
THE COURT: I think you understand the question. And you can tell — you can explain to the Jury your response, your answer to that question, when, where you had smoked marijuana, if you want to; whether or not it had anything to do with this accident or not whether it had anything to do, but whether you smoked any marijuana at the time of this accident. Do you understand what I’m saying?
WITNESS: Uh-huh. Do you want me to explain it?
THE COURT: I’m going to give you an opportunity to answer fully that question.
WITNESS: Okay. I had tried it before when we were in school, like all the other kids in school, but I do not do drugs. I do not.
THE COURT: All right.
MR. LACKEY: For purposes of the record, if the Court please, I would like to renew my objection to the question and the — there’s no need objecting to the answer, I objected to the question.
THE COURT: All right. I’ll overrule it. This is cross examination and for that reason I’ll overrule it.
MR. LACKEY: I would like to state into the record the grounds are that based on — well, it’s obvious that there’s no relation, in my opinion, to the timing.
(Whereupon, the Jury returned to the Courtroom.)
THE COURT: Mrs. Colley [Bowers] your answer was interrupted, and you have the right and opportunity to fully answer the question asked.
WITNESS: Okay. The answer I had tried it before when I was in school. I had tried it that — I think every child in school had tried it once before. Just once before, that is all that I ever did. I tried it once.
MR. FRED KELLY: Your Honor, do I have a right now to ask questions? Do I have a right now to pursue some answers in a deposition along this same line for purposes of impeachment?
THE COURT: This is cross examination and you have a right to ask the questions subject to objection.
MR. FRED KELLY: I understand that I do, but the objection was strenuously made and I don’t want to do improper. THE COURT: All right.
Q. (By Mr. Fred Kelly) I will ask you if you had not stated that you have used marijuana on more than one occasion?
A. Had I used it on more than one? Q. Yes.
A. Yes.
Q. As many as four or five times? A. Not to — well, it was just something that everybody had tried and I tried it.
Q. All right. Let’s leave that_

Defendant asserts that Bower’s cross-examination testimony concerning her drug use was relevant to the issues in this case. We note, however, that neither Thompson’s answer to plaintiff’s complaint, nor Thompson’s complaint filed in the companion case alleges any incapacity at the time of the accident resulting from Bower’s use of drugs or alcohol. We also note there is no allegation of violation of the statutory provisions dealing with driving under the influence of narcotics or alcohol. As the transcript indicates, the trial court overruled the objection to the admission of this evidence. Although Bowers was allowed to explain her answers, we cannot escape the fact that the jury heard without limiting restrictions from the trial judge that Bowers had used marijuana on more than one occasion in her lifetime. In this regard, the case at bar is not unlike Tutor v. Bingham, 545 S.W.2d 944 (Tenn.App.1976), in which Judge Nearn held that the admission of testimony regarding plaintiffs sexual conduct was unrelated to the issues in a wrongful death action, and was, therefore, reversible error. In the absence of any allegations on the part of Thompson that plaintiff was under the influence of narcotics at the time of the accident, we can only speculate as to the intent of defendant’s counsel in introducing the evidence complained of.

For further support of our position that plaintiffs previous drug use was unrelated to the issues in this case, we cite Martin v. State, 584 S.W.2d 830 (Tenn.Crim.App.1979). In Martin, the court considered an attempt to introduce testimony about the use of marijuana by the victim of the crime and in affirming the disallowance of the testimony by the trial judge, the court said: “There is no connection between the use or possession of marijuana and the veracity of a witness. Such use, even if established, would not have reflected on the victim’s truthfulness or untruthfulness.” (Citations omitted). Id. at 834.

In the case at bar, the line of questioning utilized by defendant’s counsel was objectionable and the trial court was in error in overruling the objection. Having made this determination, we must now go one step further as required by T.R.A.P. 36(b) and determine the magnitude of this error. T.R.A.P. 36(b) provides:

Effect of Error. A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.

Under the facts of this case it is most difficult for this court to determine whether the introduction of this evidence “more probably than not affected the judgment,” although we do feel that the allowance of this error to go unchallenged “would result in prejudice to the judicial process.” In any event, we recognize that counsel for the defendant must have thought that the introduction of this testimony would affect the judgment of the jury in its deliberation or such testimony would not have been introduced. We say this bearing in mind that defendant had previously deposed the plaintiff and knew that her use of marijuana was not relevant to the issues in this case. To inject this fact into the case obviously evidences the belief by defendant’s counsel that it would have some effect on the decision of the jury. Consequently, the judgment of the trial court should be reversed and this cause remanded for a new trial.

Since we are remanding this case for trial, we will consider the final issue presented for review which is:

ISSUE NO. 3

Did the trial court err in refusing to charge the reckless driving statute and refusing to charge the law of gross negligence?

The record reveals that plaintiff did not submit a written request for instruction on gross negligence which was refused by the trial court, and therefore, this court has no way of knowing the content of plaintiff’s requested charge. The trial court cannot be held in error for an incomplete charge in the absence of such a special request. Cohen v. Cook, 62 Tenn.App. 292, 309-10, 462 S.W.2d 502, 510 (1969); Wallace v. Knoxville’s Community Development Corp., 568 S.W.2d 107 (Tenn.App.1978).

Plaintiffs also complain about the refusal of the court to charge the reckless driving statute which is:

55-10-205. Reckless driving. — (a) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

This statute makes willful and wanton disregard for the safety of persons or property an essential element of the offense of reckless driving. See Burgess v. State, 212 Tenn. 315, 369 S.W.2d 731 (1963).

In State v. Wilkins, 654 S.W.2d 678 (Tenn.1983), the Supreme Court considered the issue of whether the conviction of reckless driving can be maintained on speed alone when there is evidence that the defendant’s speed was approximately 120 m.p.h. In holding that such a conviction could be maintained under these circumstances, Justice Drowota speaking for the court said:

Willful and wanton disregard for another’s safety is a factual question properly determined from all the circumstances. It exceeds negligence in that the actor willfully breaches a duty. While 20 miles per hour without more is not “willful and wanton,” we do not think such can be said for all speeds. Indeed, we think it is within the discretion of the finder of fact to consider that a motor vehicle’s speed can be so fast as to constitute willful and wanton disregard for persons or property, be it the person and property of the driver or others on the road or in the area. (Emphasis supplied). Id. at 680.

There is proof in the record from which the jury could find that Thompson was exceeding the speed limit. Therefore, as required by Wilkins, “it is within the discretion of the finder of fact to consider that a motor vehicle’s speed can be so fast as to constitute willful and wanton disregard for persons or property ...” Consequently, the Court under appropriate instruction should have submitted this issue to the jury, but it cannot be held in error for failure to do so in the case at bar because plaintiff did not submit a special request for instruction. The trial court cannot be held in error in the absence of such a special request. Cohen v. Cook, 462 S.W.2d at 510, Wallace v. Knoxville’s Community Development Corp., 568 S.W.2d at 112-13.

The judgment of the trial court is reversed and this case is remanded for a new trial consistent with this opinion. Costs are adjudged against the appellee.

NEARN, P.J. W.S., and TOMLIN, J., concur.


text:
    Stella POTTER, Plaintiff-Appellee, v. Tanya TUCKER and Lawrence Brown, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Jan. 24, 1985.
    Application for Permission To Appeal Denied April 1, 1985.

      Robert L. Littleton, Dickson, for plaintiff-appellee.
    Ed Long, Dickson, for defendants-appellants.
   CRAWFORD, Judge.

Plaintiff, Stella Potter, sued the defendants, Tanya Tucker and Lawrence Brown, individually and d/b/a Brown Lumber and Development Company, seeking compensatory and punitive damages for the unauthorized cutting of timber on her land. Plaintiff alleges inter alia that defendant Tucker, plaintiff’s adjoining landowner, contracted with defendant Brown for timber cutting on Tucker’s property, that Tucker failed to point out the boundary lines of her property to Brown, that Tucker and Brown were engaged in a joint enterprise in this endeavor, that Brown was Tucker’s agent, and that Brown and his employees entered the plaintiff’s land, cutting her timber and otherwise damaging her land. The complaint sought recovery against Brown and sought recovery from Tucker on the theories of respondeat superior, with Tucker being responsible for the acts of her alleged agent, and also independent negligence, because Tucker had not adequately established the boundary lines of her property.

Defendants joined issue on the material allegations of the complaint, and in addition, defendant Tucker filed a cross-claim against defendant Brown alleging breach of the written contract between them. Tucker further contended that the contract provided for Brown to indemnify her for any losses that might arise. Tucker also filed a counter-complaint against plaintiff Potter, but Tucker subsequently voluntarily dismissed this complaint.

The jury returned a verdict for plaintiff against both defendants for the total amount of $26,600, which included the value of the timber of $19,100 and other damages to the property of $7,500. The jury also returned a verdict on the cross action in favor of the defendant Brown. Judgment was entered on the jury verdict resulting in Tucker’s appeal which presents the following issues for review by this court:

I. Did the trial court err in failing to direct a verdict in favor of appellant or in failing to set aside the judgment when the proof clearly showed a co-defendant was an independent contractor and appellant could not be found liable for the contractor’s actions?
II. Did the trial court err in allowing an excessive judgment against appellant to stand when the proof presented in a timber case did not merit the application of the “harsh” rule?
III. Did the trial court err in its charges?
IV. Did the trial court err in allowing a judgment to stand in favor of defendant Lawrence Brown on the cross-complaint when the overwhelming proof was that the defendant Brown was in breach of contract, failed to have insurance coverage and was unjustly enriched by his actions?

The first issue concerns an alleged error of the court in failing to direct a verdict for defendant Tucker in plaintiff Potter’s suit against her. We find Tucker’s assertions on this issue without merit for several reasons. First, although Tucker made a motion for directed verdict at the conclusion of the plaintiff’s proof, the record does not reveal that Tucker renewed the motion for directed verdict at the close of all the proof. The motion must be made at the conclusion of all the proof in order for it to be considered by the trial court on a post trial motion and by this court on appeal. Tenn.R.Civ.P. 50.02; T.R.A.P. 3; Johnson v. Woman’s Hospital, 527 S.W.2d 133 (Tenn.App.1975). Although the record is clear that Tucker did not renew the motion at the conclusion of the proof, Potter’s response in her brief does not make this contention. Therefore, we will briefly address the merits of this issue. The rule for determining a motion for directed verdict requires the trial judge and the reviewing court on appeal to look to all of the evidence, taking the strongest legitimate view of it in favor of the opponent of the motion and allowing all reasonable inferences from it in his favor. The court must discard all countervailing evidence, and if there is then any dispute as to any material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. Tennessee Farmers Mut. Ins. Co. v. Hinson, 651 S.W.2d 235 (Tenn.App.1983). The court should not direct a verdict if there is any material evidence in the record that would support a verdict for the plaintiff under any of the theories he has advanced. See Wharton Transport Corp. v. Bridges, 606 S.W.2d 521 (Tenn.1980).

Tucker bases her argument for a directed verdict on the theory that the proof clearly showed that Brown was an independent contractor and that, therefore, Tucker could not be liable under the doctrine of respondeat superior. We recognize the general rule that an employer is not ordinarily liable for the negligence of an independent contractor. International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1949).

The courts of this state have repeatedly referred to the leading case of Powell v. Virginia Construction Co., 88 Tenn. 692, 13 S.W. 691 (1890) for the definition of independent contractor:

An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work. The employer of such a contractor, if he be a fit and proper person, and the work be not in itself unlawful, or a nuisance in itself, or necessarily attended with danger to others, will not be responsible for his negligence or that of his subcontractors or his servants. Mr. Thompson, in his work upon Negligence, says that “in every case the decisive question is, Had the defendant the right to control in the given particular the conduct of the person doing the wrong?” Thompson on Negligence, 909. (Emphasis supplied).

Id. at 697.

From the record before us, it appears that the defendant Brown and Tucker’s agents testified concerning various aspects of the business operation in which Tucker exercised control over Brown. We also observe that a landowner contracting for the harvest of his timber should be cognizant of the obvious danger to his neighbor’s property unless the boundary lines are explicitly pointed out to and scrupulously observed by the contractor. It could be argued that under these circumstances the actions of the independent contractor are “necessarily attended with danger to others” and constitute an exception to the general rule that the employer is not responsible for the actions of the independent contractor. In any event, plaintiff’s alternative theory was that Tucker was negligent in not adequately directing Brown to the proper boundary lines and there is material evidence in the record to support this theory.

In summary, we note that, aside from the procedural shortcomings of not renewing the motion for directed verdict at the close of all the proof, the record contains evidence that Tucker exercised control over Brown, that she should have been aware of the obvious dangers to her neighbor’s property, and that she was negligent in not pointing out the boundary lines. For these reasons, Tucker’s assertions on this issue are without merit.

The second issue concerns the amount of damages awarded plaintiff against defendants. Tucker asserts that the damages were excessive and that the proof did not merit the application of the so-called “harsh” rule for calculating these damages.

As noted in Stearns Coal and Lumber Co. v. Kitchen Lumber Co., 27 Tenn.App. 468, 182 S.W.2d 4 (1944):

It has been held that rules applicable in mining trespass cases are likewise applicable in a suit for wrongfully cutting timber. Holt & Johnson v. Hayes, 110 Tenn. 42, 73 S.W. 111. These rules are laid down in Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 446, in the following language:
“The mild rule is applied where the wrong was innocently done, by mistake or inadvertence; the harsh, where the facts show the trespass to' have been malicious, or with full knowledge of the title of the injured party, and in willful disregard of his rights. The former rule charges the defendant with the value of the coal, ore, or rock mined, in situ,— usually measured by the royalty charged in the particular locality. The latter charges him with the value of the same after severance, without compensation for mining and preparing for market.”

Id. at 7, 8.

The record contains proof the defendants were uncertain as to the location of the boundary line, that defendant Tucker did not undertake to point out or establish the boundary line to Brown before the timber cutting operation began, and that Brown himself frequently was not present at the timber cutting site. The size and magnitude of the trespass on plaintiff’s land (evidence indicates that trees were cut on approximately 75 acres of Potter’s land) could indicate a rather reckless abandon on the part of the timber cutters concerning the boundaries. There does not appear to be any evidence of uncertainty concerning the deed description to plaintiff’s property, but apparently the timber cutters were unable to locate the boundary line. The record contains evidence that the trespass by the timber cutters was caused by Tucker’s failure to initially establish or point out the boundary line location. In view of the magnitude of the cutting operation, this failure indicates a disregard for the rights of • neighbors when it should have been known that the failure to establish the boundary lines could result in damage to the neighbor’s property. There is material evidence in the record establishing the value of the timber under the applicable rules and the verdict of the jury conforms thereto. The function of this court in review of jury verdicts is succinctly stated by Judge Conner in Mason v. Tennessee Farmers Mutual Insurance Co., 640 S.W.2d 561 (Tenn.App.1982):

Of course, in testing the validity of a plaintiff’s jury award we must view the evidence in the light most favorable to plaintiff. This court has no right to weigh the evidence in a jury case, but must indulge every reasonable inference in favor of the plaintiff when there is material evidence in support of the verdict. Houser v. Persinger, 57 Tenn.App. 401, 405, 419 S.W.2d 179,181 (1967). We must look at all the evidence, take the strongest legitimate view of it in favor of the plaintiff and allow all reasonable inferences in plaintiff’s favor. Norman v. Liberty Life Assurance Co., 556 S.W.2d 772, 773 (Tenn.App.1977); Truan v. Smith, 578 S.W.2d 73, 74 (Tenn.1979). Our duty upon review of conflicting evidence in a jury trial is not to determine where the truth lies, but only to determine if there was any material evidence to support the verdict below. Davis v. Wilson, 522 S.W.2d 872, 875 (Tenn.App.1974); Chattanooga Gas Co. v. Underwood, 38 Tenn.App. 142, 149, 270 S.W.2d 652, 655 (1954). Even if we would have reached conclusions different from those reached by the jury, if there is some material evidence to support the verdict, it must be affirmed. Davis v. Wilson, supra; Chattanooga Gas Co. v. Underwood, supra at 149-150, 270 S.W.2d at 655-656.

Id. at 564.

We find material evidence to support the verdict for the plaintiff and consequently Tucker’s assertion on this issue is without merit.

With regard to the third issue, Tucker complains that the trial court erred in its jury instructions and attempts in her brief to delineate several allegedly erroneous instructions. We note, however, that Tucker’s motion for a new trial specifies only one allegedly incorrect instruction which we quote from that motion:

4. The Trial Court’s charge to the Jury was confusing in that the Jurors did not realize that a judgment against both Defendants did not mean that each would be responsible for one-half the amount.

Tucker’s brief does not address this alleged error. The alleged errors in the court’s charge that are addressed in the brief are not included in the motion for new trial and thus cannot be considered. T.R. A.P. 3(e). Cordell v. Ward School Bus Mfg., Inc., 597 S.W.2d 323 (Tenn.App.1980).

Tucker’s fourth and final issue presented for review concerns the alleged error of the trial court “in allowing a judgment to stand in favor of defendant Lawrence Brown on the cross-complaint.” We look again to the motion for new trial and while we do not find this issue presented in its present form, we suppose a strained reading of the motion could result in construing it to allege error by the trial court for not directing a verdict for Tucker on her cross-claim against Brown. From our reading of the cross-complaint allegations, we perceive that Tucker and Brown had signed a written contract and that this contract contained a provision indemnifying Tucker. However, the contract was not made a part of the record on appeal, is not before the court and, therefore, we have no way of knowing the terms and provisions thereof. It is clear from the record, however, that Tucker, relying on the terms of the contract, did not make a motion for a directed verdict against Brown at the conclusion of the proof and this failure is fatal to review on this issue. See Tenn.R.Civ.P. 50.02. Johnson v. Woman’s Hospital, 527 S.W.2d 133 (Tenn.App.1975).

For the reasons stated, we find Tucker’s assertions on the issues presented for review to be without merit. Consequently, we affirm the judgment of the trial court and remand this case for such other proceedings as necessary. Costs are assessed against appellant.

NEARN, P.J.W.S., and TOMLIN, J., concur.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. Charlene HOUSTON, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Nov. 28, 1984.
    Permission to Appeal Denied by Supreme Court March 11, 1985.

      William M. Leech, Jr., Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, John T. Fowlkes, Jr., Asst. Dist. Atty. Gen., Memphis, for appellee.
    Leslie I. Ballin, Memphis, for appellant.
   OPINION

O’BRIEN, Judge.

Charlene Houston and a co-defendant, Patricia Nixon, were indicted by the Shelby County Grand Jury for grand larceny. Tried to a jury they were both found guilty and sentenced to serve not less than three (8) years nor more than six (6) years in the State Penitentiary. Nixon waived her right to appeal. Houston raises several issues before this Court.

Defendant’s assertion that the evidence preponderates against her guilt requires a summary of the proof submitted to the jury.

Co-defendant Nixon was employed in the Linen Department of Goldsmith’s Department- Store in Memphis. A fellow employee, noting what she considered to be unusual conduct on the part of Ms. Nixon, notified security. Nixon was observed stacking merchandise on a counter in the Linen Department and placing it into sacks. She then took the sacks to the stock room. She called a stock worker, John Kennedy, to move the sacks of merchandise to the customer pick-up dock and advised him a customer named Houston would pick up the packages around 8:00 p.m.

Store security personnel advised Mr. Kennedy to notify them if a customer asked for the merchandise. Ms. Houston arrived at the customer pick-up area about 8:30 p.m., and made such a request. Mr. Kennedy asked for her sales receipt or ticket. She replied she was picking up the items for a friend and had no ticket. There was no sales ticket on the merchandise. In order to pick up purchased items at the Goldsmith Loading Dock a customer must have a sales ticket, or present identification for merchandise that is ticketed. In either type transaction the dock worker must receive a sales ticket prior to delivering merchandise. Any alteration in this procedure must be personally approved by the store manager. Neither Ms. Nixon nor Ms. Houston had the required sales ticket, nor did one accompany the merchandise. There was no cash register entry corresponding to the sale of the merchandise.

In her argument relating to the preponderance of the evidence defendant insists the goods in question never left the possession of Goldsmith’s Department Store, therefore there was no trespass, no aspor-tation, and thus no larceny.

Grand larceny is the felonious taking and carrying away of goods over the value of Two Hundred Dollars ($200). T.C.A. § 39-3-1103. The law in this State is that there must be a trespass, a taking and an asportation. Wright v. State, 549 S.W.2d 682, 684 (Tenn.1977). The trespass is an offense against the possession of the owner. Wright v. State, supra. It matters not on the issue of trespass that Ms. Nixon had charge of the merchandise to dispose of by sale or any other instructions of her employer. A fraudulent appropriation of property by any person to whose charge or care it is delivered, subject to the immediate orders of the owner, or to the use of it in his presence, or for the purpose of his trade, is larceny. T.C.A. § 39-3-1118(a). See State v. McArthur, 648 S.W.2d 659, 660 (Tenn.Cr.App.1983). The removal of the goods by Ms. Nixon with the intent to wrongfully possess them created the trespass, as well as a taking. Wright, supra at 685.

Asportation is accomplished by the slightest movement of personalty by trespass. It is not necessary that the property be moved from the place or premises in which it is kept, such as would constitute a complete severance. The act of a thief in putting an article into his pocket or into any kind of receptacle which he carries is an asportation, even though he may never leave the owner’s premises. See Freeman v. State, 520 S.W.2d 739, 741 (Tenn.Cr.App.1974).

The evidence presented at trial was fully sufficient for a rational finder of fact to determine defendant Houston actively participated in the larceny, either as a principal, or as an aider and abettor. The evidence established that she and Nixon were working in concert with each other to steal the property from Goldsmith’s. The verdict of the jury was warranted by the evidence and we find the issue to be without merit.

Defendant contends the trial court erred in allowing the State witness, Kennedy, to testify that co-defendant Nixon had told him a customer named Houston would come to claim the merchandise. She argues that she was denied the right of confrontation and the testimony was a violation of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton the United States Supreme Court held that admission of a co-defendant’s confession implicating an accused at a joint trial constituted prejudicial error even in the light of clear, concise and understandable instructions that the confession could only be used against the co-defendant and must be disregarded with respect to the other. There was no such confession in this case. These were comments made in the course of an ongoing conspiracy to rob Goldsmith’s Department Store which involved this defendant as a co-conspirator. A conspiracy is defined as a combination between two or more persons to do a criminal or an unlawful act or a lawful act by criminal or unlawful means. It is not necessary that the conspiracy be set out in the indictment, but only that a conspiracy be established by the evidence. Once a conspiracy has been established, evidence of any act or declaration of a conspirator during the conspiracy, and in furtherance of it, is admissible as substantive evidence against any co-conspirator on trial for the commission of the target crime. (Citations omitted), State v. Lequire, 634 S.W.2d 608 (Tenn.Cr.App.1981).

Defendant complains of three statements made by State’s counsel during closing and rebuttal argument. Defendant has failed to cite authority for the propositions in her argument which constitutes a waiver of the issue. State v. Eberhardt, 659 S.W.2d 807, 811 (Tenn.Cr.App.1983). Nonetheless the issues are without merit. The Assistant District Attorney argued that Houston was an aider and abettor based on Nixon’s statement to the witness Kennedy that Houston was coming to pick up the merchandise. As we have indicated heretofore this was properly admissible testimony, and so it is fair grounds for argument.

Defense counsel, in arguing to the jury, attempted to explain the law of circumstantial evidence. Counsel’s explanation was a mis-statement of the law. The State’s objection was properly sus- . tained. It is the province of the trial judge to state to the jury the law of the case, and it is not advisable for counsel to attempt to do so in final argument because of the possibility of error in their summation. See State v. Smith, 626 S.W.2d 283, 285 (Tenn.Cr.App.1981).

Finally defendant argues it was improper to allow the prosecutor, in rebuttal argument, to state that there was not an attempt but a completed larceny, on the premise that neither defendant had argued that there was an attempt. Properly, rebuttal argument is limited to the subject matter covered in the State’s opening argument and the defendant’s intervening argument. Tenn.R.Crim.P. 29.1(b). Counsel for both defendants argued this crime was not completed because the merchandise never left the premises of Goldsmith’s store. Under the circumstances the comment of the District Attorney appears to be a response to defendant’s argument. This issue too is without merit.

We do not find reversible error and affirm the judgment of the trial court.

DUNCAN, and TATUM, JJ., concur.


author: DWYER, Judge.

text:
    STATE of Tennessee, Appellee, v. James William TOWNSEND, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Dec. 12, 1984.
    Permission to Appeal Denied by Supreme Court April 1, 1985.

      Thomas E. Weakley, Dyersburg, Charles Curbo, Memphis, for appellant.
    W.J. Michael Cody, Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, Lyman Ingram, Asst. Dist. Atty. Gen., Dyersburg, for appellee.
   OPINION

DWYER, Judge.

A Lake County jury sentenced appellant to confinement for thirty years for committing the offense of robbery with a deadly weapon. See T.C.A. § 39-2-501. There are twelve issues presented on his appeal as of right. See T.R.A.P. 3(b).

The first issue questions the sufficiency of the evidence. On February 12, 1980, at 5:00 p.m., the Bryant’s jewelry store in Tiptonville was held up by two male blacks. One was armed with a sawed-off shotgun. The owners of the store, Mr. and Mrs. Cochran, were the only two persons in the store. The holdup man who accosted Mrs. Cochran with the shotgun was identified as an Ira Belk. The other man was identified by Mrs. Cochran as appellant. She related that he had been in the store earlier and had examined jewelry for some thirty or forty minutes. When he left she told her husband that she was suspicious of the man. During the holdup Mr. Cochran related that the shotgun was pointed in his face and he was instructed to get down on the floor. When he got on the floor, he was kicked in the head by the armed man. He identified Belk as the one with the shotgun. He did not see appellant.

During the ransacking of the store, Lisa Lovell entered the store and was promptly ordered by Belk to lie on the floor. She observed appellant behind one of the counters and identified him at trial.

Belk was identified by an acquaintance he passed on the street when they fled. A blue Lincoln Continental car seen at the crime sight was traced to the common-law wife of appellant in St. Louis. The value of merchandise and cash taken from the store was estimated at over $100,000. The appellant was arrested in California around August 1, 1980, and returned to Lake County in September of 1980. On November 16, 1980, while awaiting trial, he escaped from the Lake County Jail. The evidence reflects that he held a razor to an inmate’s throat and fled when the cell door was unlocked.

The appellant testified, denying participation in the robbery. He denied being with Belk in the last five years. He testified that he had paid the sheriff, who was deceased at the time of trial, $500 to let him walk out of the jail.

Ira Belk testifying for the appellant, acknowledged robbing the store. He absolved appellant, relating that the other holdup man was a man named John Davis. He pled guilty earlier, receiving a twenty-year sentence.

On appeal the evidence is viewed in the strongest legitimate light to the theory of the State. State v. Cabbage, 571 S.W.2d 832 (Tenn.1978). With Mrs. Cochran and Ms. Lovell identifying appellant as one of the holdup men, plus other evidence as narrated, the evidence is sufficient and meets T.R.A.P. 13(e) requirements. The sufficiency of the evidence issue is overruled.

The second issue: Mr. Cochran made an unresponsive remark to a question by the State’s attorney that the crime was a “Class X felony.” The court’s prompt instruction to disregard this statement cured any error here. See State v. Tyler, 598 S.W.2d 798, 802 (Tenn.Cr.App.1980). Therefore, the trial court did not err in overruling the motion for mistrial.

The third issue: With appellant fleeing the scene of the crime and escaping from the jail after his arrest, the court did not err by instructing the jury on flight. See State v. Taylor, 661 S.W.2d 695, 698 (Tenn.Cr.App.1983); Craig v. State, 2 Tenn.Cr.App. 510, 455 S.W.2d 190, 193 (1970). This issue is overruled.

The fourth issue: When the prosecutor asked Mr. Cochran if he had insurance, there was an objection which was sustained. No answer was given. There is no error here.

The fifth issue: In its sound discretion the trial court may limit the time for argument. Tenn.R.Crim.P. 29.1(c). The court allowed appellant forty-five minutes. There is no error here. See Brooks v. State, 187 Tenn. 67, 77-78, 213 S.W.2d 7, 11-12 (1948).

The sixth issue: Since no identifiable fingerprints were found, the State did not withhold exculpatory evidence from appellant. In any event, the fact that no prints were found in the store was presented to the jury. This issue is overruled.

The seventh issue: The court erred by not excusing juror Jones from the jury for cause, because she worked across the street from the jewelry store. However, appellant was not prejudiced, for this juror was excused. This issue is overruled.

The eighth issue: In its discretion the trial court controls the voir dire of the jury. State v. Jefferson, 529 S.W.2d 674, 682 (Tenn.1975). In the absence of some “significant possibility” that a juror has been exposed to potential prejudicial material individual voir dire is not mandated. Sommerville v. State, 521 S.W.2d 792, 797 (Tenn.1975). There is no error here.

The ninth issue: The issue is predicated on the prosecutor’s argument with references to religion. A review reflects no objection was made to the argument in one portion. In another instance the court ordered the prosecutor to move on to something else. Further, the court directed the prosecutor to refrain from religious commentary. The argument, if error, did not affect the results. This issue is overruled.

The tenth issue: There was no error in allowing the sheriff to remain at the prosecution’s table during voir dire.

The eleventh issue: During closing argument the prosecutor related that the sheriff did not die as a rich man and he did not know whether the sheriff had enough money to pay his medical expenses. Since the objection was sustained with prompt instructions by the court for the jury to disregard the matters outside the evidence, there is no error here. When the prosecutor made reference to the deceased sheriff in rebuttal argument, appellant did not object. There is no error here. The statement about appellant’s delay in being captured inuring to his benefit coupled with the remark that the sheriff had died concerned reasonable inferences from the facts. This issue is overruled.

The last issue: Appellant contends that because the prosecutor was sued by the appellant for not providing him with medical assistance in jail a conflict of interest arose. The argument is then made that the attorney general having a personal interest in the case should have recused himself. Because the issue is not in his motion for new trial, it is waived. T.R.A.P. 3(e); See State v. Strouth, 620 S.W.2d 467, 471 (Tenn.1981). Moreover, the petitions for medical treatment did not name the State attorney. The judgment of the trial court is affirmed.

O’BRIEN and SCOTT, JJ., concur.


author: McGEE, Justice. GONZALEZ, Justice,

text:
    Estle L. KING, Petitioner, v. James BAUER, M.D., Et AL., Respondents.
    No. C-3297.
    Supreme Court of Texas.
    May 8, 1985.
    Woodruff & Ellis, Alfred W. Ellis, Dallas, for petitioner.
    Law Offices of Guy Allison, Kathryn Snapka, Corpus Christi, for respondents.
   McGEE, Justice.

OPINION ON REHEARING

The opinion and judgment of March 20, 1985 are withdrawn and the following is substituted. The motion for rehearing of Dr. Bauer is overruled.

Mrs. Estle King sued Dr. James Bauer, alleging negligent administration of radiation therapy. The trial court rendered judgment on the jury’s verdict and awarded Mrs. King $297,000 actual damages plus interest. The court of appeals reversed the judgment of the trial court and rendered judgment that Mrs. King take nothing, finding no evidence that Dr. Bauer breached the standard of care which a reasonable and prudent physician would have taken under the same circumstances. 674 S.W.2d 377. The judgment of the court of appeals is reversed and the cause is remanded to that court.

Mrs. King was treated for lung cancer in 1978, and shortly thereafter began a regime of radiation therapy under the direction of Dr. James Bauer. The prescribed treatment involved ten doses of radiation treatment in two weeks, followed by a two-week rest period and concluded with eight more doses in the next two weeks. The initial dose was 250 rads and each subsequent dose was 300 rads. Dr. Bauer testified that the total amount of radiation Mrs. King received was 5,398 rads and, in particular, the spinal column was exposed to approximately 4,650 rads. All of the treatments were given in an anterior-posterior fashion with a field size of 10 by 12 centimeters except that the last three doses were by a rotational-arc method using a 10 by 15 centimeter field. Dr. Bauer admitted no exterior shielding of the spinal cord was done.

Approximately 10 months after the completion of the radiation therapy, Mrs. King began to experience radiation myelopathy which resulted in the degeneration of the spinal column and complete paralysis of her lower body. At trial, Mrs. King contended that her paralysis was proximately caused by the negligent radiation treatment administered by Dr. Bauer.

The court of appeals initially determined that Mrs. King had established the general standard of care for physicians administering radiation therapy. Since the trial was prior to the effective date of the new rules of evidence, the parties did not have the benefit of asking a witness a question embracing the ultimate negligence issue. Tex. R.Evid. 704. The court of appeals, however, held there was no evidence to support the jury’s findings of negligence because Mrs. King had failed to present evidence that Dr. Bauer had undertaken a mode of treatment which would not have been taken by a reasonable and prudent physician under the same or similar circumstances. 674 S.W.2d 381.

An appellate court, in reviewing a “no evidence” point, must consider only that evidence and reasonable inferences drawn therefrom in their most favorable light to support the jury’s findings, disregarding all contrary evidence and inferences. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981). Various physicians testified as expert witnesses and evidence of the standard of care in administering radiation therapy was produced. Specifically, Dr. Joe Rector testified that 300 rads per day was more than the usual or standard dose in treating the type of cancer afflicting Mrs. King. He stated that the rule of thumb is about 1000 rads a week divided into five treatments of 200 rads. Dr. Rector described the field size of 10 by 12 centimeters to be a large one and explained that the “larger the field the smaller the dose.” He further remarked that the total amount of radiation Mrs. King received was “too much for her” and agreed that paralysis was not an acceptable result of radiation therapy.

Dr. Hubert Withers testified that the hazard of radiation myelitis and paralysis is “substantially higher” when a total dose of 4500 rads is given in 300-rad instead of 200-rad doses. He added that radiotherapists, in determining the amount of radiation given the spinal cord, “take a lot of care not to exceed a dose of 5,000 rads” and “to be quite safe, they commonly restrict the dose to about 4,500 rads.” Dr. Withers calculated that Mrs. King’s spinal cord had received a total dose as high as 4,700 rads. He also agreed that the usual split-course treatment consisted of two courses of 3,000 rads delivered in 10 doses separated by a one-month’s rest and in most cases the spinal cord is excluded from radiation during the second course of treatment. Another expert, Dr. Vincent Collins, testified that medical literature recognized the possibility of spinal cord injury under the circumstances of Mrs. King’s prescribed treatment.

There is evidence to support the jury’s findings that' Dr. Bauer was negligent. Accordingly, we reverse the judgment of the court of appeals in this respect and remand the cause for disposition of the “insufficiency” point. Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 105 (Tex.1979).

Because we are remanding this cause, we find it unnecessary to decide the question of whether pre-judgment interest should be allowed in a case of this type.

The judgment of the court of appeals is reversed and the cause is remanded to that court to determine the sufficiency of the evidence point of error.

GONZALEZ, J., dissents.

GONZALEZ, Justice,

dissenting.

I respectfully dissent. Mrs. King failed to offer any evidence that Dr. Bauer deviated from the proper standard of care. I would therefore affirm the judgment of the court of appeals.

In a medical malpractice case the plaintiff has the burden to prove by expert testimony the standard of care. In Hood v. Phillips 554 S.W.2d 160, 165 (Tex.1977), the court held that the plaintiff has the burden to prove that the doctor undertook a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances. (Emphasis added).

Various physicians testified as expert witnesses. Their testimony clearly established the common form of radiological treatment. Dr. Bauer’s treatment differed from the common form of treatment. The expert witnesses, however, also testified that a number of factors such as type of cancer, location of cancer, individual susceptibility to radiation, size of the patient, and other individual characteristics of the patient would vary the form of treatment a patient should receive. None of the doctors gave an opinion as to what Dr. Bauer should have done, taking into consideration the particular facts of this case. The testimony establishes only that radiologists in general administer 200 rads per treatment, and that in general 300 rads per dose is “unusual. ”

The expert testimony in my opinion failed to establish that Dr. Bauer’s treatment constituted the type of treatment that a reasonable and prudent physician would not have administered in the same or similar circumstances. Guidry v. Phillips, 580 S.W.2d 883, 886 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.). For these reasons, I dissent.