author: FLANIGAN, Judge.

text:
    STATE of Missouri, Respondent, v. Audrey MORTON, Appellant.
    Nos. 13620, 13622.
    Missouri Court of Appeals, Southern District.
    Jan. 9, 1985.

      Donald Rhodes, Bloomfield, Thomas L. Arnold, Benton, for appellant.
    John Ashcroft, Atty. Gen., Mark S. Sied-lik, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Judge.

A jury found defendant Audrey Morton guilty of two offenses of selling marijuana (§ 195.020). The first sale took place on July 28, 1983, and the second sale took place the following day. Both sales were made to Richard Rodgers, a police informant, and took place at defendant’s house in Cape Girardeau. By agreement the two offenses were tried together. Defendant was sentenced to ten years’ imprisonment for each offense, the sentences to run concurrently. Defendant appeals.

Defendant’s first point is that the evidence is insufficient to support the verdict. In ruling this point this court must view the evidence in the light most favorable to the state and accept all substantial evidence and all legitimate inferences fairly deducible therefrom which support the verdict. All evidence unfavorable to the state must be disregarded and the submissibility of the case will be determined upon the basis of all the evidence, including those portions of defendant’s evidence which favor the state. State v. Stith, 660 S.W.2d 419, 420[1] (Mo.App.1983).

The state’s evidence showed that Rodgers, working undercover with Cape Girar-deau police officers, was outfitted with a recording device which was concealed on his person. On the late afternoon of July 28, police officers “strip searched” Rodgers, gave him some cash and dropped him near the home of defendant. Rodgers testified that he entered the home and purchased marijuana from the defendant for $20. The conversation between Rodgers, defendant, and defendant’s son Bruce Morton, who was also present at the sale, was recorded. A transmitter permitted the officers to hear the conversation while it was being recorded.

Essentially the same transaction took place on July 29 but this time the third person present was one Caldwell rather than defendant’s son. The state’s evidence showed that the substance purchased was marijuana. Although police officers had driven Rodgers to the vicinity of defendant’s house before the sales and picked him up thereafter, they were not present when the sales took place.

In attacking the sufficiency of the state’s case defendant argues that “the only evidence to connect defendant with the crimes was that of Rodgers.” The defendant then argues that Rodgers’ testimony was unworthy of belief because his reputation for honesty was bad, his descriptions of defendant and her son “were grossly inaccurate,” his identification of Caldwell “was entirely inaccurate,” Rodgers had been previously convicted “of criminal activity” and “was guilty of further criminal activity within two months after the sales,” no one actually saw Rodgers enter defendant’s home, and the quality of the tapes “of the conversations” was so poor as to be unintelligible.

As pointed out in State v. Williams, 652 S.W.2d 102, 111[16-19] (Mo. banc 1983), the determination of the credibility of a witness is within the peculiar province of the jury. Furthermore, testimony of a single witness may be sufficient to make a submissible case. Rodgers’ criminal record may have affected his credibility but it was for the jury to decide how much weight to give his testimony.

The recordings of the two conversations were introduced into evidence. Also introduced was the recording of a telephone conversation between Rodgers and a woman whom Rodgers telephoned on the evening of the first sale. That telephone call, made from the police station, was to the telephone number listed in the directory for Audrey Morton at her residence. In that conversation arrangements were made for the second sale. Although the recordings may be inaudible in places, other portions are audible. Those recordings merely supplemented the testimony of Rodgers as to the sale transactions. Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in receiving into evidence state’s Exhibit 2 (recording of the July 28 sale), state’s Exhibit 3 (recording of the July 28 telephone conversation), and state’s Exhibit 4 (recording of the July 29 sale), and permitting the jury to hear them, because (a) the recordings were of such poor quality that it is impossible to understand what was said or to identify the voices; (b) the recordings were never identified by Richard Rodgers, the person who purported to make them; (c) there was no proper foundation for the admission of the recordings; (d) the recordings show that they had been interrupted twice, and (e) no one identified any voice to be that of defendant.

At the time the three exhibits were respectively offered into evidence defendant objected to Exhibit 2 on the ground “there is no foundation that this is the voice of defendant”; she objected to Exhibit 3 on the ground the exhibit was “not properly identified”; the objection to Exhibit 4 was “no proper foundation.” Defendant also made some objections on constitutional grounds to Exhibit 3 and Exhibit 4 but they are not presented here and are thus abandoned.

A ground for objection which is not stated at the time the evidence is offered is not timely presented to the trial court and is not preserved for appellate review. State v. Franco, 544 S.W.2d 533, 537[7] (Mo. banc 1976); State v. Martin, 651 S.W.2d 645, 652[8] (Mo.App.1983). A comparison of the objections made at trial with those set forth in defendant’s second point shows that many of them were not preserved.

This court has listened to the recordings. Richard Rodgers, who was a participant in all three conversations, testified that all portions of the conversations were recorded, that he had listened to the recordings, and that there had been no changes in them. Detective Casteel, who placed the portable transmitter and recording device on Rodgers, explained their respective functions to the jury. He, too, testified that the entire conversations were taped and there had been no changes or deletions.

Of course Rodgers testified that defendant was the woman whose voice was being recorded at the time of the two sales. Casteel testified that it was defendant’s telephone number which was dialed when the telephone conversation took place. The mere fact that portions of a recording are inaudible does not necessarily render the entire recording inadmissible. State v. Miller, 588 S.W.2d 237, 241[8] (Mo.App.1979). See, generally, 57 A.L.R.3d 746. The trial court did not abuse its discretion in receiving the three exhibits. Defendant’s second point has no merit.

Defendant’s third point is that the trial court erred in granting, over defendant’s objection, the prosecutor’s request that the defendant read to the jury, at the close of the presentation of the state’s case, an excerpt from Mark Twain’s Life on the Mississippi.

On the morning of the trial, and before it began, the prosecutor informed the court in chambers that as his last piece of evidence he was going to ask the court to order the defendant to read “the first few pages” of Life on the Mississippi “so the jury will have a sample of what the defendant’s voice sounds like.” Defense counsel objected on the ground that “this has not been disclosed to me of any documents that they would have her read — this violates her constitutional right not to take the witness stand.” Defense counsel also requested a continuance. The court overruled the objections, denied the request, and stated he was going to require the defendant to read the material.

After the state had presented the testimony of four witnesses, covering over 100 pages of the transcript, the court, at the prosecutor’s request and over defendant’s renewed objection, asked the defendant to read page 1 from that book. The record shows that the defendant “read briefly” from it. The purpose of the reading was to enable the jury to compare the voice of the defendant with a woman’s voice contained on the three recordings which the jury had previously heard.

Defendant asserts that the prosecutor’s request was improperly granted because: (a) the request was not made until the morning of the trial; (b) the state had not previously disclosed its intention to make the request although defendant had previously sought discovery; (c) defendant should have been granted a continuance; (d) the comparison was improperly conducted in that the only right way to have done it was to require defendant to speak into a recording device and compare that recording with the others; and (e) the procedure was improperly suggestive in that only defendant’s voice was tested.

At the time the prosecutor’s request was granted, defendant objected on the grounds set forth in (a), (b), and (c), but failed to do so with respect to (d) and (e). The latter two have not been preserved for appellate review and this court finds no plain error with respect to those two grounds.

A criminal defendant’s Fifth Amendment privilege against self-incrimination is not violated by an order of the trial court requiring him to speak, for voice identification purposes, in the presence of the jury. United States v. Williams, 704 F.2d 315 (6th Cir.1983); State v. Spain, 27 Ariz.App. 752, 558 P.2d 947 (1976). See, generally, 3 A.L.R.4th 374 (propriety of requiring criminal defendant to participate in demonstration in presence of jury — voice demonstration cases are collected at p. 421).

In United States v. Williams, supra, a criminal defendant was required, during his trial, to read a “neutral passage” from Time magazine to the jury for purpose of voice identification. Rejecting defendant’s claim that his Fifth Amendment privilege had been violated, the court pointed out that the United States Supreme Court had ruled that an individual’s distinctive resonance, speech and voice idiosyncrasies are identifiable physical characteristics and that compelling a demonstration of them does not violate the privilege against compulsory self-incrimination. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

Missouri cases have upheld the trial court in granting a prosecutor’s request, over defense objection, that the defendant participate in a demonstration of a physical characteristic to the jury. In State v. Walls, 637 S.W.2d 812 (Mo.App.1982), the trial court did not err in granting the prosecutor’s request that defendant be ordered to wear certain clothing in the presence of the jury. The court said that the trial court, in balancing the probative value of demonstrative evidence with its prejudicial effect, is vested with broad discretion in admitting or rejecting such evidence. In State v. Owens, 620 S.W.2d 448 (Mo.App.1981), the trial court did not err in granting the prosecutor’s request that the court order the defendant to stand for the purpose of allowing a witness to inspect a tattoo on defendant’s face. In State v. Proctor, 535 S.W.2d 141 (Mo.App.1976), the trial court did not err in compelling defendant to walk, in the presence of the jury, for the purpose of displaying a limp. Other examples of demonstrative evidence which may properly be obtained from a defendant without violation of his Fifth Amendment rights are set forth in State v. Norris, 577 S.W.2d 941 (Mo.App.1979), both in pretrial and in-trial settings.

In support of ground (a) defendant argues that the reading of the book should not have been permitted because the prosecution had not pursued the pretrial procedure set forth in Rule 25.06(B). That rule provides, in pertinent part:

“(B) Upon motion by the state, and subject to constitutional limitations and any other safeguards deemed appropriate by the court, and upon a showing of good cause, the court may order the defendant to: ... (2) Speak for identification.”

Rule 25.02 provides, in pertinent part:

“Requests or motions for discovery shall be made not later than twenty days after arraignment in the court having jurisdiction to try the offense.... The court may enlarge or shorten the times herein specified.”

In support of ground (b) defendant cites Rule 25.03(A) which provides that the state shall, upon written request of defendant’s counsel, disclose “such part or all of the following material and information within its possession or control designated in said request: (1) the names and last known addresses of persons whom the state intends to call as witnesses ... at the trial _” Defendant had requested the foregoing information and the state, in listing its witnesses, did not list defendant.

Of course the state could not call the defendant as a witness if the defendant saw fit to invoke her privilege against self-incrimination. The foregoing authorities hold, however, that requiring the defendant to participate in a courtroom demonstration of a physical characteristic does not constitute the giving of testimony so far as the protection of the Fifth Amendment is concerned. It follows that the prosecutor’s request that the defendant give a voice demonstration in the presence of the jury did not make the defendant “a witness” of the type required to be listed in response to a Rule 25.03(A)(1) request.

It is true, as defendant points out, that Rule 25.16 provides, in effect, that where a party has failed to comply with a discovery rule, the court may impose certain sanctions including granting a continuance, excluding evidence, or entering any order which it deems just under the circumstances. That rule does not come into play here because there was no discovery violation by the state.

Defendant relies primarily on People v. Giglio, 428 N.Y.S.2d 27, 74 A.D.2d 348 (1980), where it was held that a defendant could not be convicted of contempt of court by disobeying a court order which was itself unlawful. The disobeyed order was that the defendant demonstrate his voice to the jury during the course of his criminal trial. The order was held to be illegal and thus not a proper predicate for the crime of contempt. The court said, at 428 N.Y.S.2d p. 31:

“The defendant was denied due process when he was compelled to submit to the taking of a voice exemplar during his trial for bribery. No prior notice of the prosecution’s intention to apply for that relief was given to the defendant; the necessity for the relief was not established in any papers served on the defendant; and he was not afforded the opportunity to controvert the grounds for the application.”

In a later New York case, People v. Smith, 450 N.Y.S.2d 57, 86 A.D.2d 251 (1982), the court, expressly declining to follow Giglio, held that a defendant is not constitutionally entitled to prior notice, formal application, and a hearing, before he may be compelled to exhibit his voice to a criminal trial jury.

The facts in People v. Smith, supra, are remarkably similar to the instant case. Smith was on trial for selling a controlled substance to a police informant who was “wired for sound” by the police. Tape recordings were made of the transaction. At the request of the prosecutor the court ordered the defendant to exhibit his voice to the jury for comparison with the voice on the tapes.

The court held that the voice demonstration did not violate the privilege against self-incrimination nor did it violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. The court rejected defendant’s argument that the voice demonstration denied him procedural due process. The court said, at 450 N.Y.S.2d p. 60: “This case thus involves nothing more than the kind of nonintrusive order to engage in various acts in the courtroom for identification purposes which have long been upheld in this State and other jurisdictions....”

The court said that defendant was not denied a fair trial by the procedures used. The content of what defendant was required to say was “totally innocuous and unrelated to any factual issues in the case.” Significantly, the court said: “[T]he District Attorney was not compelled to avail himself of pretrial discovery procedures for obtaining a sample of defendant’s voice.”

In State v. Spain, supra, the defendant was required to read some words in the presence of a witness as well as the jury so that the witness could attempt to identify defendant’s voice as that of his assailant. The court rejected defendant’s contention that he should not have been required to make a voice demonstration before the jury because there had been no pretrial request. The court said, at 558 P.2d p. 951:

“The policy considerations governing pretrial identifications do not apply to an in-eourt identification such as was attempted here. In pretrial identifications there is no opportunity to confront the witness and cross-examine, whereas when an in-eourt identification is made, the defendant has the opportunity to fully test the ability of the witness to make an identification.”

This court agrees with the rationale of People v. Smith, supra, and State v. Spain, supra. In advance of the trial defendant and his counsel knew of the existence and content of the three recordings. The quality of defendant’s own voice could hardly have been a matter of surprise to defendant or her counsel. Short of changing that voice, it is difficult to see what purpose a continuance would have served. The fact is that the prosecutor disclosed his intention to request a voice demonstration several hours before the demonstration was conducted. The reading was brief and the text was innocuous. This court holds that procedures utilized here did not deprive defendant of a fair trial. Defendant’s third point has no merit.

Defendant’s fourth point is that the trial court committed plain error in not requiring the court reporter to record the words from the book by Mark Twain which defendant read to the jury. The record discloses that the trial court asked the defendant to read page 1 from that book. The transcript then states: “At this time the defendant read briefly from the book.”

Although the record does not disclose the words read by the defendant, the state’s brief sets forth the language contained on page 1 of a 1927 edition of Life on the Mississippi. There the inimitable author describes the river itself. Neither in the trial court nor in this court does defendant claim that the language was offensive or obnoxious, nor does defendant deny the accuracy of the state’s brief’s account of what was read. The object of the demonstration was not the language used but a voice, a physical characteristic which, like a limp or gesture, defies accurate verbal description. Defendant’s fourth point has no merit.

Defendant’s fifth point is that the trial court erred in receiving into evidence, over defendant’s objection, testimony that defendant’s house was searched on August 2, 1983, pursuant to a search warrant, and that during the course of that search marijuana was found in defendant’s bedroom.

The trial incident underlying defendant’s fifth point took place during the direct examination of a state’s witness John Casteel, a detective with the Cape Girardeau Police Department. Before Casteel testified, however, the August 2 search had been mentioned in the presence of the jury.

During his opening statement the prosecutor said, “A few days later, on the 2nd of August, Curt Casteel and other police officers participated in a search. They obtained a search warrant of Audrey Morton’s house, and in her house, under the bed in the room in which she had been sleeping, they found a quantity of money under the bed and more marijuana under the bed.” The first witness for the state was Richard Rodgers, who testified concerning the sale on July 28. He then testified that on July 29, before the second sale took place, “We went down to [Judge] Mueller’s office and got an affidavit signed_ That was a search warrant.” There was no defense objection to either of the foregoing references to the August 2 search.

Later in the trial, during the direct examination of detective Casteel, the witness testified that he had gone to the defendant’s home after July 29. Thereupon a conference took place at the bench in which the defense counsel informed the court that the witness “is going into the search warrant and the search of the house. I object to any testimony concerning that. [Defendant] is not charged with possession. She is charged with these two sales. I see no need to present any evidence of any additional alleged violations.”

The prosecutor said to the court, “Our position is that it goes toward the knowledge of this defendant, the fact that it is only two or three days later she had in her house, under her bed, a sum of money and marijuana.” The court overruled the objection.

Casteel then testified that on August 2 at 10:30 a.m. he went to defendant’s house to execute a search warrant which had been issued for that residence. Defendant was in the front room. The witness searched the house and found, underneath the bed in the south bedroom, a roll of money totaling $410 and some marijuana seeds. Defense counsel then said, “Objection, Your Honor, unless there is some evidence it was marijuana seeds.” The court said, “The objection will be sustained as to the latter comments.” A defense request for mistrial was denied. Casteel then testified, without further objection, that he had found “some greenish-brown hard seeds.”

A criminal defendant has the right to be tried only for the crime or crimes with which he is charged. State v. Wright, 582 S.W.2d 275, 277 (Mo. banc 1979). The general rule is that proof of the commission of separate and distinct crimes is inadmissible unless it has some legitimate tendency to establish that the defendant is guilty of the crime with which he is charged. State v. Shaw, 636 S.W.2d 667, 671-672 (Mo. banc 1982). “Specificially such evidence is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial.” State v. Shaw, supra, at 672.

When the evidence of the fruits of the August 2 search was offered the prosecutor stated, “It goes toward the knowledge of this defendant.” On this appeal, however, the state argues that “the evidence is relevant to show the common scheme or plan of drug sales carried out by the defendant.”

The defense, with respect to both charges, was alibi. Defendant and other defense witnesses testified that at the time of the two sales she was not at home. The state’s evidence, primarily through Rodgers, identified the defendant as the person involved in the sales. There was no issue concerning the fact that the substance which was sold, in each instance, was marijuana, or that Rodgers paid money for it, or that the sales took place in defendant’s house.

In prosecutions for the sale of a controlled substance several Missouri cases have held that the trial court committed reversible error in receiving evidence that the defendant sold the same substance on other dates. In State v. Reed, 447 S.W.2d 533 (Mo.1969), where defendant was charged with selling marijuana on July 12, 1967, it was error to show that on June 14, 1967, defendant sold marijuana to the same purchaser. The court rejected the state’s argument that evidence of the June 14 sale was admissible to show knowledge, intent, motive, or to establish identification. In State v. Carter, 475 S.W.2d 85 (Mo.1972), defendant was charged with selling amphetamine on April 28, 1967. It was error to introduce evidence that on March 16, 1967, defendant had stated that he had previously sold substantial amounts of amphetamine “per week” and had quit doing so three weeks prior to March 16. The court said that the issue with respect to whether the defendant was the person who committed the act charged was, except where admitted, an issue in every case and that issue alone does not authorize evidence of other crimes. In State v. Jackson, 495 S.W.2d 80 (Mo.App.1973), where defendant was charged with selling drugs on December 19, 1971, it was reversible error to show that he had sold such drugs before and after that date. See, generally, 93 A.L.R.2d 1097 (admissibility, in prosecution for illegal sale of narcotics, of evidence of other sales).

The fact, standing alone, that the challenged evidence was of a crime committed after, rather than before, the crime on trial, does not necessarily make that evidence incompetent. State v. Shaw, 636 S.W.2d 667, 672[7] (Mo. banc 1982).

In State v. Cheesebrew, 575 S.W.2d 218 (Mo.App.1978), defendant was charged with possessing marijuana in his trailer on March 5. The defendant denied any knowledge that the marijuana was concealed in his trailer. On rebuttal the state introduced evidence that defendant had sold marijuana on February 25 at his trailer. The eastern district of this court held that the rebuttal evidence was properly received and, in dictum, said it would have been admissible in the state’s case-in-chief as tending to show defendant knew of the character of the substance found in the trailer on March 5 and that he intentionally possessed it.

In the case at bar there was evidence strongly tending to prove defendant’s guilt. The dispute primarily focused on the identity of the seller, not on the seller’s knowledge of the presence of marijuana. Earlier in the trial references to the fruits of the August 2 search had been made in the presence of the jury and without objection. This court holds that under the circumstances here the testimony of detective Casteel , concerning the August 2 search should not have been received but that its reception did not prejudice the defendant.

Defendant’s sixth point is that the trial court erred in sustaining the prosecutor’s hearsay objection to defense counsel’s question to witness Doris Seabaugh. By the question, and the offer of proof in support of it, counsel sought to elicit from the witness that on July 29, at about the hour of the second drug sale, Bruce Morton told the witness that defendant had gone to Advance, Missouri. The offered evidence was hearsay and the trial court’s ruling was correct.

Defendant’s seventh point is that the trial court erred in allowing the jury, at its request, to take the three recordings and the recorder to the jury room because “only a portion of the tapes were played during the trial and no one had ever listened to the remainder of the tapes.”

After the jury had retired to deliberate, they sent a note to the trial court stating that they wanted the three recordings and some cheeks, all of which had been received in evidence. Defense counsel stated that he had no objection to sending in the checks but that he objected to sending in the recordings “because the entire tape has not been played for the court nor to me and there is no way of knowing if there is any other matter on this tape, anything which might be prejudicial.”

The court then asked the prosecutor whether or not the prosecutor was representing to the court that “the only thing that is on these tapes are the tape recordings that were here with us today.” The prosecutor answered in the affirmative. Defense counsel then asked the prosecutor if he had heard all of one tape. The prosecutor replied that he had heard all of one side and nothing was on it except what the jury had previously heard. The prosecutor then said, “If there is something on the other side we could turn it over.” Defense counsel made no request that the latter be done. With regard to the other two tapes, the prosecutor also told the court, “that is all that is on that tape.” Although defendant preserved this point in his motion for new trial, no evidence was offered at the hearing on the motion to show that the recordings contained anything other than what the jury had heard during the trial.

In State v. Evans, 639 S.W.2d 792 (Mo. banc 1982), the supreme court held that the trial court did not err in permitting the jury to hear, during its deliberation, a tape recording of the defendant’s confession. Although the recording had been introduced into evidence, and a witness had testified as to its contents, the recording itself had not been played before the jury during the presentation of evidence. The latter feature, not present here, prompted a dissent.

In United States v. Humphrey, 696 F.2d 72 (8th Cir.1982), it was held that the trial court did not abuse its discretion in sending to the jury room a tape of defendant’s pretrial conversation with a witness. To similar effect see State v. Williams, 643 S.W.2d 3 (Mo.App.1982); 37 A.L.R.3d 238 (permitting documents or tape recordings containing confessions or admissions to be taken into jury room in criminal case).

This court, as did the supreme court in State v. Evans, supra, listened to the tapes and they contain no extraneous material. Defendant’s seventh point has no merit.

Defendant’s eighth point is that the trial court erred in failing to instruct the jury “on the lesser included offenses of possession of marijuana and nonremunerative transfer of marijuana” because the state’s evidence with regard to the two sales showed that the defendant possessed marijuana and because, with respect to the sale of July 29, the state’s evidence showed that defendant handed the marijuana to Lee Caldwell who in turn sold it to Rodgers and that it was Caldwell, and not defendant, who was paid.

This point lacks merit for two independent reasons. First, in non-homicide cases, “a defendant may not complain about a court’s failure to give a lesser-offense instruction unless the defendant requests it specifically,” State v. Olson, 636 S.W.2d 318, 322-323[9] (Mo. banc 1982), and defendant made no such request. Second, “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.” § 556.046.2. Where, as here, the state’s evidence showed the sale of marijuana and defendant’s participation in that sale, and the defense was alibi, there was no factual basis for submitting an instruction on a lesser included offense. State v. Story, 646 S.W.2d 68 (Mo. banc 1983); State v. Corley, 639 S.W.2d 94 (Mo.App.1982); State v. Ashley, 616 S.W.2d 556 (Mo.App.1981); State v. Ingram, 610 S.W.2d 395 (Mo.App.1980); State v. Arnall, 603 S.W.2d 111 (Mo.App.1980). Defendant’s eighth point has no merit.

Defendant’s ninth point, based on an alleged error of the trial court in failing to give another instruction, need not be considered because it was presented on the erroneous assumption that defendant’s eighth point had merit.

The judgment is affirmed.

CROW, P.J., and HOGAN, TITUS and MAUS, JJ., concur.

      . All references to statutes are to RSMo 1978, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.


source: Caselaw Access Project

author: FONES, Justice. FONES, Justice.

license: Public Domain

text:
    Robert L. YEAROUT, Appellant, v. James C. TRUSTY and Quality Paving Company, Inc., Appellees.
    Supreme Court of Tennessee, at Knoxville.
    Nov. 5, 1984.
    Petition to Rehear Feb. 11, 1985.
    J. Nicklas Holt, Rom Meares, P.C., Mary-ville, for appellant.
    Linda J. Hamilton, Richard W. Kreig, Morton, Lewis, King & Krieg, Knoxville, for appellee.
   OPINION

FONES, Justice.

The issue in this workers’ compensation case is whether plaintiff was a casual employee of Quality Paving Company and excluded from coverage under T.C.A. § 50-6-106(2). A procedural issue involves the interpretation of T.R.C.P. 58.02(2).

Plaintiff, Robert Yearout, was employed in the first part of July 1982, as a laborer by Quality Paving. Mr. Yearout did not work a regular forty-hour week, but he reported to work daily and, if the employer had any work in progress, he was assigned various tasks for which he was paid $4.00 per hour. The business of Quality Paving consisted primarily of the paving and sealing of driveways.

On July 26,1982, plaintiff and the company supervisor, David Hardin, were assigned to apply a cold liquid sealant on the roof of a building for Mr. Trusty, the owner of Quality Paving. On July 27, when Yearout reported to work, he was told to apply this same sealant on the roof of a garage owned by Trusty’s mother-in-law. Yearout and Hardin were transported to the work site by Trusty in a company truck and were instructed by Trusty about the job. The materials required to complete the job were furnished by the company, and Yearout was never told that the job was not for the benefit of the company. During the course of work that day, plaintiff fell from a ladder and was seriously injured.

The trial court held that such activities were not within the usual course of business of Quality Paving and dismissed plaintiffs complaint.

I.

Appellee, Quality Paving Company, has asserted that the notice of appeal was not timely filed and that this Court does not have jurisdiction of the appeal. The record reveals that there were two identical judgments filed with the local clerk, one on January 16, 1984, and one on January 20, 1984. The January 16 judgment was approved for entry by defendant’s counsel only and had a certificate of service thereon reflecting that defendant’s attorney had mailed a copy of the proposed judgment to plaintiff’s attorney on January 13, 1984. The January 20 judgment was approved for entry by counsel for plaintiff and counsel for defendant.

Defendant contends that the January 16 judgment was effective upon entry by the clerk because it complied with T.R.C.P. 58.-02(2). In making that assertion, defendant interprets Rule 58.02(2) as requiring only the mailing of a proposed judgment to opposing counsel, prior to actual entry of the judgment. It was the intent of the rule that if the judgment does not bear the signature of all parties, or their counsel, that copies of the judgment bearing the date of entry and the signature of the judge be, “served on all parties or counsel of record.” The mailing of a copy of a proposed judgment on January 13, 1984, that was entered on January 16, 1984, did not comply with T.R.C.P. 58.02(2). It follows that plaintiff gave timely notice of appeal.

II.

The statutory language excluding casual employees from coverage is as follows:

50-6-106. Employments not covered. —The Workers’ Compensation Law shall not apply to:
(2) Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession, or occupation of the employer;

The interpretation of that statutory language applied in United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184 (1938), controls the disposition of this case. Here, as in Cannon, the employee was employed as a common laborer to work in the usual course of business of the employer. On the day that Cannon was injured, he was assigned to work under his usual “boss man” unloading a load of lumber from a freight car. The lumber was to be used in the construction of an addition to the employer’s plant. The Court noted that construction was not within the usual course of the employer’s business of manufacturing cord fabric.

After noting that the employer relied upon the leading cases in Tennessee dealing with casual employment the Cannon court applied the following interpretation of the statute to the facts of that case:

It is to be observed that the exclusion rule approved by these authorities has been applied in those cases only in which the workman was working under a contract of employment which directly and exclusively called for repair or construction work, as to which the employer was held to be engaged outside the usual course of his business, etc. The rule must be so limited. It is not to be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged, at the direction and under the supervision of the company’s managers, on work of a repair or construction character.

The statute excludes those persons employed for the purpose of engaging in activity that is not in the usual course of business of the employer. It cannot be used to exclude employees employed for the purpose of performing work in the usual business of the employer who happened to be, at the time of the accident, engaged in work outside the usual course of the employer’s business, at the direction and under the supervision of the employer.

The trial judge expressly held that the issue before him was whether the work plaintiff was performing was in the usual course of Quality Paving’s business. He found that it was an “entirely different line of work” and his denial of compensation was based upon that finding. He also found that plaintiff reported to work on the day of the accident and was instructed by Mr. Trusty, the owner of Quality Paving, to assist his usual supervisor, David Hardin, in loading cans of cold roof sealer, a ladder and rollers into a company truck; that Trusty drove Hardin and plaintiff to the job site, instructed them to apply the cold sealer to a garage roof on the property, and that plaintiff was injured while performing that work.

It follows that upon the proof in this record we find that plaintiff was employed to work in the usual course of business of Quality Paving, and the fact that he was injured while performing work outside the employer’s usual business activity at the direction and under the supervision of his employer, did not exclude him from the coverage of the Workers’ Compensation Act.

The judgment of the trial court is reversed and this case is remanded to the Circuit Court of Blount County for a hearing to determine the workers’ compensation benefits due plaintiff as a result of the accident involved herein. Costs are adjudged against defendant.

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

OPINION ON PETITION TO REHEAR

FONES, Justice.

A petition to rehear has been filed by defendants-appellees, James C. Trusty and Quality Paving Company, Inc., considered by the Court, found to be without merit, and is respectfully denied.

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

      . Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348; Gibbons v. Roller Estates, 163 Tenn. 373, 43 S.W.2d 198; Parks v. E.M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285; Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526.


author: BROCK, Judge.

text:
    Linda Sue HALL, Plaintiff-Appellee, v. AUBURNTOWN INDUSTRIES, INC., and Gulf and Western Industries, Inc., Defendants-Appellants.
    Supreme Court of Tennessee, at Nashville.
    Jan. 22, 1985.

      Frank Buck, Smithville, for plaintiff-ap-pellee.
    Joseph G. Wilson, III, Chattanooga, for defendants-appellants.
   OPINION

BROCK, Judge.

In this worker’s compensation case the trial court awarded benefits to the plaintiff-employee who sustained a ruptured inter-vertebral disc. The only issue raised by the defendant on this appeal is whether or not the plaintiff’s injury and resulting disability “arose out of” as well as “in the course of” her employment with the defendant. See T.C.A., § 50-6-102(a)(4). The operative facts are essentially undisputed. The evidence shows that the plaintiff, who was a sewing machine operator for Auburntown Industries, on the date of her accident was instructed to watch another operator in order to learn a new technique; then while doing so the plaintiff sat on a cart equipped with coaster wheels which ordinarily was used to transport materials in the defendant’s plant; that while she was observing, as instructed, her foreman came and instructed her to return to her department to perform her regular duties; that in compliance with this instruction the plaintiff rose from the sitting position and in so doing twisted in an effort to go through a space which the record shows to be between 12 and 18 inches in width; and as she thus rose and twisted to make this maneuver she felt something “pop” in her back and immediately began to suffer severe pain in her low back.

In her testimony, the plaintiff described her accident in the following words:

“And I started to get up and I twisted in some way, and my back popped. And when it did, I caught my back, and I said, Tina, you’ll have to give me time to get back to my machine. And I had to twist going back to my machine, and — (interrupted)
“Q. Well why did you have to twist going back to your machine?
“A. Well they were all so close together there.
******
“Q. All right. As you got up, Mrs. Hall, did you get straight up, or, just tell the Court how you got up?
“A. I got up in a twisted fashion, and when I did it popped, and it just — it didn’t seem like it would be that bad til I went back over there at my machine and started sewing.
“Q. All right now would there have been room for you to walk between the back of the lady who was sewing, and Mrs. Youngblood’s machine without— how would you have gotten through there?
“A. I had to twist kindly.
“Q. Ok. Was it — show the Court how much room?
“A. Well, between there and the little buggy here there was very little.
“Q. But the place you had to walk on between Mrs. Youngblood’s machine and the lady that was sewing that is not shown in the photograph would have been approximately how much distance?
“A. Can I show with you with my hands?
“Q. Sure.
“A. Something like that right there.
“Q. Let the record reflect — (interrupted)
“The Court: Approximately a foot.
******
“Q. All right, and tell the Court about the rollers? Can you testify regarding whether the chair, or cart moved when you got up, or didn’t, or just tell the Court the truth?
“A. No, Sir, now I cannot testify that it rolled. All I remember is me twisting, and my back popping. And all the pain the rest of the day was just terrible. And that’s it.”

Of course, there is no question that this accident occurred “in the course of” the plaintiff’s duties. The dispute is about whether it “arises out of” them.

The plaintiff’s physician, Dr. Alexander Chernowitz, testified as follows:

“Q. Okay, the twisting, if that were the case, in fact — would that be more compatible with the injury which she alleged to have sustained?
“A. I think so. Yes.”

The defendant argues that the plaintiff’s injury was such that it could have been sustained almost anywhere, in a variety of ordinary situations; that it was not the result of a hazard peculiar to the employment. It is ingeniously, if not persuasively, argued that an injury is not com-pensable if it is one that might as easily have occurred in the employee’s home or while she was engaged in her personal pursuits. It is true enough that, to be compensable, an injury must have some causal relation to the employee’s work. It is not within the worker’s compensation law if it is only “coincidental, or contemporaneous, or collateral” to it. Jackson v. Clark & Fay, Inc., 197 Tenn. 135, 270 S.W.2d 889 (1954).

A number of our cases contain language to the same effect. See Jackson v. Clark & Ray, Inc., supra; Sandlin v. Gentry, 201 Tenn. 509, 300 S.W.2d 897 (1957); Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765 (1966); Hill v. St. Paul Fire and Marine Insurance Co., Tenn., 512 S.W.2d 560 (1974); Sudduth v. Williams, Tenn., 517 S.W.2d 520 (1974). But, as is frequently the case, it is easy to mistake the rule of these cases by extending their dicta beyond the confines of their facts.

In Jackson, the employee was killed when the truck in which he was riding from his work to his sleeping quarters was overtaken by a storm. In Hill, a night watchman died when the building he was guarding collapsed in a tornado. The decedents in Knox v. Batson, were asphyxiated in a motel room where they had taken temporary quarters while working on a construction job. In Sandlin v. Gentry, the deceased provoked an encounter with a fellow employee which ended in his being shot to death. In Sudduth v. Williams, the claimant was an epileptic who had a grand mal seizure while at work.

In each of these cases there is some special circumstance — a pre-existing condition, a deliberate assault, or an act of God — which caused the death of the worker. Ordinarily, death or injury from these causes is not compensable, but under special circumstances may be. If a work related accident aggravates an idiopathic condition, causing injury or death, or if it is a contributing cause, compensation is available. McCann Steel Co. v. Carney, 192 Tenn. 94, 237 S.W.2d 942 (1951).

Similarly, if because of the nature of the work there is a special risk of exposure, beyond that incurred by the general public, to criminal attacks or to the violence of the elements, the injury is one arising out of the employment. Mason-Dixon Lines v. Lett, 201 Tenn. 171, 297 S.W.2d 93 (1956); City of Gallatin v. Anderson, 209 Tenn. 392, 354 S.W.2d 84 (1962); Bell v. Kelso Oil Co., Tenn., 597 S.W.2d 731 (1980). But there is no requirement of a special risk in a case like this one, where it is obvious that nothing extraneous to the employment caused the injury. Many accidents which are routinely held by this Court to be compensable could have occurred off the job and under different circumstances. For instance, an employee who suffers a back injury while lifting a load during the course of his employment which is beyond his capability could just as easily sustain the same injury while lifting the same load at home or at some other place unconnected with his work. The true rule which this Court has followed is that, generally, an injury arises out of and in the course of employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment; and, any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee. Bell v. Kelso Oil Co., supra.

The simple duties in which the plaintiff was engaged at the time of her injury ought not to have resulted in an injury, but the proof is that they did, and the record supports no inference that the injury arose out of anything except the employment. Accordingly, the decree of the Chancellor is affirmed and costs are taxed against the appellants.

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


author: MATHERNE, Retired Judge

text:
    Gorman Donald KING and Edlene King, Plaintiffs-Appellants, v. ROSS COAL COMPANY, INC., Russell H. Wilson, and Charles C. Ross, individually and as partners d/b/a Ross Coal Company, and Robert L. Wilson, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    July 7, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 10, 1984.

      Charles B. Lewis of Morton, Lewis, King & Krieg, Knoxville, for plaintiffs-appellants.
    Earl F. Layman of Key, Lee & Layman, Knoxville, for defendants-appellees.
   MATHERNE, Retired Judge

While operating a drill in the defendant’s strip mining operation, the plaintiff, Gor-man Donald King, was seriously and permanently injured when a huge rock fell on him. The plaintiff sues his employer in a common law action alleging that the incident which resulted in his injuries was not an “accident” as contemplated by the Tennessee Workers’ Compensation Law but was an intentional tort committed upon him by his employer, thus removing the exclusive remedy provisions of the Workers’ Compensation Law. The trial judge granted the employer’s motion for summary judgment, and dismissed the plaintiff’s common law action on the ground that the Workers’ Compensation Law provided the exclusive remedy against the employer.

I.

The plaintiff alleged that the drilling of the strip mine produced a dangerous high-wall about which the owner and foreman were repeatedly warned. Notwithstanding these warnings and the obvious danger to the workers, the employer continued the drilling operation. The plaintiff alleged:

Plaintiff avers that defendants, with knowledge and consciousness that injury was likely to result to the plaintiff and others in his position, did negligently, willfully, maliciously, outrageously, wrongfully, deliberately, wantonly and recklessly subject the plaintiff to a known danger and that such acts and omissions were equivalent to a deliberate attempt to produce such injury as occurred to the plaintiff, thus subjecting said defendants to common law liability.

The plaintiff further alleged the violation of state and federal statutes governing the operation of strip mines, which violations resulted in plaintiff’s injuries.

The defendants did not answer, but filed a Motion to Dismiss and/or for Summary Judgment on the ground that Tennessee Code Annotated, Section 50-908, provides that the exclusive remedy is as allowed under the Workers’ Compensation Law, thus barring the plaintiffs common law cause of action. Attached to the motion were two affidavits which state that the plaintiff was seriously injured on the date averred while working at the defendant’s strip mine; that the plaintiff and the defendant were operating under the Workers’ Compensation Law; that the plaintiff was injured while working in the course and scope of his employment; that the plaintiff has been drawing benefits under the law at the rate of $119.00 per week for a total amount in excess of $8,000.00; that the defendant’s insurer has paid $113,126.23 in medical expenses for the plaintiff; and that the plaintiff continues to draw benefits under the law. The plaintiff filed affidavits, but there was no countervailing affidavit which disputed the foregoing statements, and we treat those facts as established.

The plaintiff filed the affidavits of six fellow employees or witnesses for the purpose of showing that a jury issue was presented. These affidavits establish that plaintiff was injured in the manner alleged; that the highwall created by the strip mining operation was exceedingly dangerous to workers at its base; that these employees warned the owners and foreman of this condition; that the wall could have been rendered safe by blowing off the top; that the owners did not do this because of the trouble and expense of removing the blasted rock; that the owners refused repeated requests to remedy the dangerous condition of the wall; that some employees refused to work beneath the wall because of its dangerous condition; that the plaintiff’s usual occupation with the employer was that of a mechanic, but he was operating a drilling machine when he was injured; and that repeated rock slides occurred at the wall for a period of a few weeks prior to the incident. There are no countervailing affidavits which deny or condition the above statements, and we treat those facts as established.

II.

In Cooper v. Queen, (Tenn.App.1979) 586 S.W.2d 830, the court held that an intentional tort by the employer in person upon the employee will afford a ground for common law action for damages. The reason for the rule being that the employer in such a situation would have to affirmatively plead the exclusiveness of the act as a defense and cannot do so when he has deliberately produced the result. However, the Cooper court held that allegations which establish gross or criminal negligence fall short of alleging actual intent to injure. The court stated that “(t)here is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure.” (Emphasis added)

The subject is discussed at 2A Lawson, Workmen’s Compensation Law, § 68.13 at 13-5 [1982], as follows:

Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common-law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of general intentional injury.... Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character. (Emphases added)

The Workers’ Compensation Law takes away from the employee his common law rights and gives him others, on the guarantee that these substituted rights shall be generously awarded, both for foregoing his common law rights and in consideration of the obligations of his employer to keep his employee from becoming a pub-lie charge. McKamey v. Pee Wee Mining Co., Inc., (Tenn.1973) 498 S.W.2d 94. The legislature has made the rights of the employee and employer the exclusive remedy. Those who accept benefits under an act of this kind must likewise take the burdens. Liberty Mutual Ins. Co. v. Stevenson, (1963) 212 Tenn. 178, 368 S.W.2d 760.

The plaintiffs have alleged that the acts and omissions of the defendants “were equivalent to a deliberate attempt to produce such injury as occurred to the plaintiff, thus subjecting said defendants to common law liability.” There is no charge in the complaint, and there is no fact stated in any of the six affidavits filed by the plaintiff, that shows an actual intent on the part of the defendants to cause injury to the plaintiff. The allegations and facts stated might be sufficient to take to a jury the issues of “gross, wilfull and wanton negligence” as alleged by the plaintiff, but the statute bars that course of action and remedy. We hold that it takes more than a mere inference of tortious intent to convert the defendant’s negligence into an intentional tort.

We further hold that the state and federal statutes governing the operation of strip mines were not designed to remove the exclusive remedy provisions of the Workers’ Compensation Statute. If a plaintiff can legally remove the exclusiveness of that remedy, then the violation of the statutes might be pertinent to a recovery.

There being no disputed issue of fact, we hold that the defendants are entitled to judgment as a matter of law. The order sustaining the defendant’s motion for summary judgment is affirmed. The cost in this court is adjudged against the plaintiffs-appellants for which execution may issue, if necessary.

PARROTT, P.J., and GODDARD, J., concur.


author: TOMLIN, Judge.

text:
    Charlie M. SPEARS, Plaintiff-Appellant, v. MORRIS & WALLACE ELEVATOR CO., Defendant, and Frank R. Davis and Liberty Mutual Insurance Company, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    August 3, 1984.
    Application for Permission to Appeal Denied by Supreme Court Jan. 29, 1985.

      William M. Gotten, Memphis, for plaintiff-appellant.
    Joe D. Spicer, Memphis, for defendants-appellees.
   TOMLIN, Judge.

This is a case of first impression. The issue presented by this appeal, stated in its most narrow sense, is whether or not the definition of “employer” under the Workers’ Compensation Act, which admittedly includes the compensation insurance carrier, shall also include the employees of the insurance carrier. Stated a bit more broadly, the issue for consideration is whether a workers’ compensation insurance carrier and its employee can be classified as a “third party” under Tennessee Code Annotated § 50-914, so that a plaintiff who has received benefits from an insurance carrier under the Workers’ Compensation Act may maintain a suit against the carrier and its employee in tort. The Circuit Court of Shelby County, in granting the motion for summary judgment on behalf of the carrier and its employee, held that such a suit could not be brought by the injured employee. We agree.

The plaintiff, while an employee of Memphis Furniture Manufacturing Company, suffered a compensable on-the-job injury. The plaintiffs injury occurred while he was assisting a fellow-employee in the operation of an overloaded freight elevator from a position outside the elevator. The plaintiff’s neck and upper body were caught between the upper and lower gates of the elevator when it suddenly dropped due to its overloaded condition. The plaintiff underwent surgery to stabilize the vertebra and cervical regions of his spine, and since the accident he has been unable to work.

After receiving his workers’ compensation benefits, the plaintiff brought this suit against Morris & Wallace Elevator Company, which was alleged to have a contract with the plaintiff’s employer to maintain the freight elevator. The plaintiff alleged certain acts of common law negligence, as well as the violation of many ordinances of the city of Memphis governing the maintenance and operation of elevators. The plaintiff subsequently amended his complaint by naming as a defendant Frank Davis, the individual who had last inspected the freight elevator, and Davis’ employer, Liberty Mutual Insurance Company. The amended complaint charged Davis with alleged acts of negligence in connection with the inspection of the elevator. Liability as to Liberty Mutual was asserted under the doctrine of respondeat superior. In the answer filed on behalf of Davis and Liberty Mutual, it was asserted that Davis was a certified deputy elevator inspector licensed by the city of Memphis, and that Davis was both employed and compensated by Liberty Mutual to perform periodic inspections of various businesses which Liberty Mutual insured.

Subsequent to filing their answer, Davis and Liberty Mutual filed a motion for summary judgment with supporting affidavits. They relied upon the inclusion of the workers’ compensation insurance carrier under the definition of “employer” in T.C.A. § 50-902 as authority for the proposition that suit could not be maintained as to Liberty Mutual, and that Davis was a “co-employee” of plaintiff under the act. After hearing arguments on the defendants' motion, the trial court granted summary judgment. In the trial court’s order there was no explanation as to the rationale by which the court held that the action could not be maintained.

Without question, this litigation was triggered by a compensable on-the-job injury. Accordingly, we must begin by examining the code sections that determine the rights of the parties under the Workers’ Compensation Law that was in effect at the date of the accident or injury. See Liberty Mutual Insurance Co. v. Starnes, 563 S.W.2d 178 (Tenn.1978).

Unquestionably, the rights of an employee subject to the Workers’ Compensation Act, on account of personal injury or death by accident, are exclusively as set forth in the act, as stated in T.C.A. § 50-908 (now § 50-6-108).

More specifically, we are here concerned with the application of two sections of the Workers’ Compensation Law as it existed at the time of the plaintiff’s injury. The first is a portion of T.C.A. § 50-902, which reads as follows:

50-902. Definitions. — In chapters 9 through 12 of this title, unless the context otherwise requires:
(a) “Employer” shall include any individual, firm, association or corporation, or the receiver, or trustee or the same, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay, and in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include his insurer, unless otherwise herein provided. (Emphasis supplied).

The second section with which we are concerned is T.C.A. § 50-914. The relevant portion of this section reads as follows:

50-9If Liability of third persons .... When the injury or death for which compensation is payable under the Workmen’s Compensation Law was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, or his dependents, shall have the right to take compensation under such law, and such injured workman, or those to whom his right of action survives at law, may pursue his or their remedy by proper action in a court of competent jurisdiction against such other person. (Emphasis supplied).

To capsúlate the material facts, the plaintiff’s injuries occurred under circumstances that created a legal liability in his favor against his employer. Liberty Mutual, the workers’ comp carrier for the plaintiff’s employer, compensated the plaintiff pursuant to a court-ordered settlement. At the time he inspected the elevator, Davis did so as an employee of Liberty Mutual. Finally, any liability of Davis to the plaintiff would create a legal liability against Liberty Mutual under respondeat superior.

An examination of the two above statutes in reverse order reveals that where the injury compensable under workers’ compensation creates a legal liability against “some person other than the employer,” the injured employee may proceed in tort against “such other person.”

From a quick examination of § 50-902, if the employee’s employer is insured, then under the definition section of the Workers’ Compensation Law, wherever used in the statute the term “employer” shall also be construed to mean the employer’s insurer. In other words, by the express provisions of our Workers’ Compensation Law, the workers’ compensation insurer is equated with the employer.

While the plaintiff concedes that the definition of “employer” under the act admittedly includes the comp carrier, he contends that the definition of “employer” should not be extended to include employees of the carrier. Looking at the bottom line, we conclude that this is a distinction without a difference. Furthermore, the authorities cited by the plaintiff in support of his position can be readily distinguished.

The strongest justification for the conclusion reached by the trial court and this Court to the effect that the plaintiff cannot maintain his action in light of the provisions of our workers’ compensation statute is found in Larson’s highly respected work in this field. Larson describes the “fast-moving ... line of cases in which injured employees have attempted to treat the compensation carrier as a third party for purposes of tort suits, based usually on alleged negligence in either safety inspections or medical services.” 2A Larson, Workman’s Compensation Law § 72.90 (1983).

Larson proceeds to state that in this particular line of cases:

The most important single legal issue is: under a statute that does not, in its third-party or exclusive-remedy passages, plainly identify the carrier with the employer, or use language unmistakably showing intent that the carrier should not be treated as a third party, can the carrier be sued for negligence in the performance of such functions as making safety inspections or actually performing (as distinguished from paying for) medical services?

Id. at § 72.91.

Restating Larson’s principle another way, one does not reach this point of inquiry until it has been determined whether or not the statute plainly identifies the carrier with the employer, as such a statutory equalization eliminates the need for further analysis. As Larson states: “For the sake of completeness, we may begin with statutes that virtually dispose of the issue by express language. Among these statutes ... are those of ... Tennessee.” Id. at § 72.93. T.C.A. § 50-902(a) is cited in the footnote by Larson as authority for this statement. Id. at § 72.93 n. 58.

Other authorities are in accord. In 101 C.J.S. Workmen’s Compensation § 985, (1958), it is stated: “Third persons who may be liable to an injured employee in a common law action include persons who do not bear the relationship of employer toward the injured employee, or who are not constituted employers by the statute.” In 81 Am.Jur.2d Workmen’s Compensation § 66, (1976), we read: “[I]t has been said that the term ‘third person’ with regard to such provisions [that allow suits by the employee in tort] means any person other than the employer or those whom the workmen’s compensation act makes an employer.”

In none of the three cases cited by the plaintiff, all from other jurisdictions, which reached results opposite from that reached by this Court, was the court dealing with a statute anywhere similar to ours. The two approaches elaborated upon in Larson, the conceptual approach and the functional approach, while valid in many other jurisdictions, have no value to us here in Tennessee, as the issue has been foreclosed by statute.

The definition section of the Workers’ Compensation Act clearly equates and identifies the employer’s insurer with the employer. While our legislature may not have had this problem in mind when it drafted this legislation, the conclusion reached in this case clearly and obviously must stem from the plain language of the statute. While the functional approach argument is a strong-sounding one, it can never be reached in light of the language in our definitional statute.

Accordingly, regardless of the result that this Court might have reached in this case absent statutory restraints, the legislature has mandated that the action by the plaintiff against Liberty Mutual and its employee cannot be maintained, since under our Workers’ Compensation Act Liberty Mutual is considered the plaintiff’s employer, and since the plaintiff’s injuries were in the first instance caused in such a manner as to create a legal liability against Liberty Mutual. Rather than holding that Davis is a co-employee of the plaintiff under the act, we merely hold that the plaintiff’s suit against Davis creates a legal liability on the part of Liberty Mutual, which is forbidden by our Workers’ Compensation Act.

The judgment of the court below is affirmed. Costs in this cause are taxed to the plaintiff, for which execution may issue, if necessary.

HIGHERS and CONNER, JJ., concur.