author: TODD, Presiding Judge, Middle Section.

text:
    David E. BARNETT, Plaintiff-Appellant, v. WATCO, INC., Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section at Nashville.
    Sept. 13, 1984.
    Application to Supreme Court Denied by Supreme Court Dec. 17, 1984.

      Joseph L. Lackey, Jr., Nashville, for plaintiff-appellant.
    Jack M. Irion, Bomar, Shofner, Irion & Rambo, Shelbyville, for defendant-appellee.
   ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

(With the concurrence of participating judges, the original opinion has been abridged for publication.)

Plaintiff, a manufacturer’s sales agent, sued defendant, a sign manufacturer, for balance of $42,000.00 on commissions due for a sale to Shoney’s Big Boy Enterprises in the amount of $417,000.00. The Chancellor rendered judgment for $1,818.98 in favor of plaintiff who has appealed.

The suit was filed on March 21,1974, but was not tried until July 19, 1983. Judgment was entered on January 16, 1984, the record was received by this Court on April 17, 1984, appellee’s brief was filed on June 26, 1984, and oral argument was heard by this Court on September 4, 1984. The record contains no explanation for the long delay in the Trial Court.

There is no material conflict between the testimony of the two witnesses who testified, the plaintiff on his own behalf, and Henry Tilford, President and Chairman of the Board for the defendant.

On May 23, 1972, Lew Finfroek, Vice-President and Sales Manager of defendant delivered to plaintiff a copy of an unsigned memo on the letterhead of defendant from Tom Watson, President of defendant, to Lew Finfroek. On the same date plaintiff and Finfroek initialed a note in the margin of said memo stating: “Eliminate Section 5”; and Section 5 was deleted by a line drawn across it. Said memo reads as follows:

May 22, 1972
Memo to: Tom Watson
Subject: Dave Barnett
Meeting Sunday, May 21
I met with Dave Barnett Sunday at Nashville and he has at least tentatively agreed to come with Wateo and we have agreed on the following:
1. Commission will be 12-1/2% of par prices and in exchange for the extra 2-1/2%, Dave Barnett will furnish his own car, gasoline and incidental expense.
2. Per our present policy, he will be allowed to sell up to 15% over par and we will split the overage with him.
3. Commission will be paid upon acceptance of any orders after credit approval and acceptance by the company. Commissions will be paid weekly.
4. All sketch requests and quote requests will be channeled through Lew Finfroek or TRW.
5. We will provide Dave with an area chart, showing the territory presently being handled out of Bowling Green and Nashville, however, Dave is presently handling some national accounts that might fall within these areas, and I have agreed that he can handle them after checking with either Lew or myself in order that we do not double up relative to sales people calling on the same accounts. Eliminate Section 5 T.W. L.F.
He will have access to telephone at the Nashville office and we will reimburse him for long distance telephone calls as necessary. 6.
Extraordinary expenses for travel on national accounts, after approval of the trip, will be reimbursed. 7.
Dave will work on a straight commission basis, however, if necessary, we will put him on a weekly draw of $180.00 a week, should his accounts develop in such a fashion as to delay commissions. The $180.00 a week draw would of course be applicable to commission earned. 8.
From time to time, we will assign him accounts to handle that normally come in by the result of mailing or telephone inquiries. 9.
We will include him in our group insurance. 10.
Dave’s telephone number at home is Area Code 615-298-1624. 11.
Tom R. Watson cc: Lew Finfrock ⅛

On the same date, May 28, 1972, the plaintiff and Lew Finfrock executed the following document:

CONTRACT AGREEMENT
For and in consideration of $1.00 cash in hand paid by David E. Barnett of the first part, and Watco, Inc., receipt of which is acknowledged:
David E. Barnett, party of the first part and Watco, Inc., mutually agree to the following:
For any and all sign business brought to Watco, Inc. by David E. Barnett and accepted by Watco, Inc., Watco, Inc. agrees to make and deliver any sign or signs ordered by any persons or company through David E. Barnett. Watco, Inc. agrees to pay the usual commission for services rendered by David E. Barnett in bringing about the purchase and sales of such sign or signs.
David E. Barnett will receive commission for any sign or signs brought to Watco, Inc. by him regardless of whether any representative of Watco, Inc. has undertaken to sell a sign or signs to any person, firm, or company; it being understood that David E. Barnett is sole salesman of said signs and is entitled to full commission thereon on said sales.
Watco, Inc. agrees to make and deliver and install all signs procured by David E. Barnett and accepted by Watco, Inc.
This contract is entered into this 23rd day of May, 1972 and will continue until terminated by mutual agreement between the parties.
The agreement between the parties as set out above is a consideration accepted by both parties to bind each party to this contract. Witness our respective hands this 23rd day of May, 1972.
Watco, Inc. by:
(signed) Lew Finfrock
Title: Vice President (signed) David E. Barnett
David E. Barnett

On June 14, 1972, a 2 page instrument was executed evidencing a sale from defendant to Shoney’s Big Boy Enterprises. The first page, bearing the corporate logo of defendant, reads in pertinent part as follows:

QUOTATION AND PURCHASE CONTRACT
(Quotation Valid only for 60 days
from Quotation Date)
Quotation No. 10521-15
Quotation Date 6/14/72
TO: Mr. Keith C. Roberts
Marketing Director
Shoney’s Big Boy Enterprise, Inc.
1727 Elm Hill Pike
Nashville, Tennessee 37210
FOR: Various Locations of
Shoney’s Big Boy Restaurants
WATCO, Inc., a Tennessee corporation, hereinafter referred to as WATCO, proposes to manufacture for the above-named customer, hereinafter referred to as PURCHASER, the items described below, subject to the terms and conditions set forth below and on page 2 hereof. Prices quoted are for items to be manufactured only and do not reflect any quotations or contrac-tural arrangements for freight, installation, connection, foundations or steel supporting structures unless specifically itemized.
Quantity Description Amount
60 Double-face pylon displays to be manufactured and installed per print #10521-15 and as detailed in our letter of June 14, 1972. $6950.00 each.$417,000.00
BASIC SALE PRICE $417,000.00

The second page of the document is a printed form containing detailed terms of the transaction and signatures of the parties. Pertinent parts of the second page are as follows:

ADDITIONAL TERMS AND CONDITIONS
1. WATCO shall not be responsible for errors in plans, designs, specifications or drawings furnished by PURCHASER or for defects caused thereby.
2. When accepted, this contract is not subject to cancellation, and no changes will be made or allowed unless such changes, and the price adjustment therefor, if any, are agreed upon in writing.
4. Items purchased under term of this contract will be stored by WATCO as a convenience to PURCHASER. Any items not shipped on or before 36 months from contract date will be invoiced in full at the designated unit price, and PURCHASER hereby agrees to pay said invoice within thirty (30) days from invoice date. It is agreed that storage charges shall accrue at the rate of one per cent (1%) per month of the price of the sign commencing at the end of said 36 month period.
10. When this contract is signed by a duly authorized person of each party, all provisions contained herein become integral parts of this contract, and there is no other agreement or understanding of any nature concerning same unless such other agreement or understanding, if any, is specifically incorporated herein by reference.
(signed) David E. Barnett
Sales Representative
This contract with all conditions as noted is herewith accepted by both parties at Shelbyville, Tennessee.
Shoney’s Big Boy Enterprises. Inc. WATCO, Inc. PURCHASER
By (signed) Keith C. Roberts By (signed) Lew Finfroek
Title Marketing Director Title Vice President
Guaranteed by (signed) Hank Brunings
Contract Date 6/14/72
Page 2 of 2

Between June 14, 1972, and December 5, 1972 — defendant delivered and collected for 8 of the 60 signs sold to Shoney’s and remitted to plaintiff $868.75 commission on each sign, which was 12V2% of the sale price.

On or near October 31, 1972, plaintiff received the following letter:

Dear Dave:
We are revising our commission schedules and agreements to become effective on January 1,1973, and we would like to discuss this with you.
Could you please arrange to come down one day to talk this over and when you come, please bring your present commission and sales agreement.
Very truly yours,
(signed)
Henry
HCT)r:kg

On or near December 5, 1972, plaintiff received the following letter:

Dear Dave:
As I mentioned to you when you were in the office a week or so ago, we have decided to work the Nashville area with our salesmen from the Shelbyville office; therefore, you would not be representing us as a commissioned agent. In view of this, I am returning to you the bid quotes on Church’s Fried Chicken, as we are not in a position to furnish you with any additional quotes.
We will handle all of the future Shoney’s negotiations from this office. As Sho-ney’s signs are installed, we will remit to you ⅜ of the commission. In accordance with our standard sales agreement, ½ of the commission is retained by the company to cover expenses for handling the account when the salesman or agent is no longer representing Watco.
Yours,
WATCO, INC.
(signed)
H.C. Tilford, Jr.
President
HCTjr:kg
Enclosure

Between December 5, 1972, and October 9, 1973, defendant delivered and collected for 10 more of the 60 signs sold to Sho-ney’s and remitted to plaintiff $578.94 commission on each sign, which was 8½% of the purchase price.

On August 2, 1973, defendant and Sho-ney’s entered into the following agreement:

MUTUAL AND JOINT RELEASE
WHEREAS, a Quotation and Purchase Contract was entered into between SHO-NEY’S BIG BOY ENTERPRISES, INC. and WATCO, INC. on June 14, 1972, wherein Shoney’s agreed to purchase sixty (60) double-face pylon displays to be manufactured and installed per Print No. 10521-15, as supplemented by Shoney’s letter of June 14, 1972, for the total amount of Four Hundred Seventeen Thousand ($417,000.00) Dollars. Said construction to be completed within thirty six (36) months from the date of the contract; and
WHEREAS, Watco, Inc. has entered upon said contract with Shoney’s and has delivered approximately 18 of the double-face pylon displays pursuant to same, but it has been ascertained by the management of both parties that it was not the intention of said original purchase contract to require that the specific number of displays setforth therein be manufactured for the total sum of Four Hundred Seventeen Thousand ($417,000.00) Dollars, but that instead this was only an estimate subject to change by either party; and
WHEREAS, because of this understanding of the parties it is necessary that modifications be made in the original contract to encompass the respective intentions of the parties as to number of displays to be manufactured, the price of same, and other factors necessary and pertinent to the final consummation of the Quotation and Purchase Order, and for the purpose of making said modifications the parties hereto agree to enter into a Mutual Release of the original contract dated June 14, 1972, and for that purpose, this instrument is executed.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, and the further consideration of the mutual releases entered into between the parties, all of which is hereby acknowledged, SHONEY’S BIG BOY ENTERPRISES, INC. does hereby release WATCO, INC. from any and all obligations under and by virtue of the contract entered into on June 14, 1972, and WATCO, INC. does hereby release SHONEY’S BIG BOY ENTERPRISES, INC. from any and all obligations entered into on June 14,1972, to the end that upon the execution of this instrument, said Quotation and Purchase Contract, a copy of which is attached hereto as Exhibit A to this Mutual and Joint Release shall be released, cancelled and for nothing held.
Nothing herein shall be construed as denying to either party the right to enter into a new contract affecting the purchase, manufacture and display of such number of double-face pylon displays as Shoney’s may, from time to time, order, and Watco may, from time to time, agree to manufacture at such price to be mutually agreed upon between the parties hereafter.
Entered into in duplicate on this 2nd day of August, 1973.
Watco, Inc.
By (signed) H.C. Tilford, Jr., Pres.
Shoney’s Big Boy Enterprises, Inc.
By (signed) Keith C. Roberts
Keith C. Roberts, Marketing Director

A part of the 10 deliveries mentioned above occurred after August 2, 1973, but the signs so delivered were already being fabricated on August 2, 1973, and were accepted and paid for by Shoney’s after the execution of the August 2,1973, agreement last above quoted.

Plaintiff made other sales to other customers for which his commission was paid. In some manner not fully explained, plaintiff was paid $1,654.63 more than the total commission which defendant intended that plaintiff receive.

The remaining 42 signs sold to Shoney’s by plaintiff were never delivered.

Plaintiff testified without contradiction that he never agreed to a reduction in his agreed commission, that he was never given any reason for the termination of his relationship with defendant. He also testified that the V3 reduction in commission was not the “usual practice” in the industry, but this is contrary to the testimony of Mr. Tilford that such is the “usual custom”. This bit of contradicted testimony is deemed immaterial.

The other witness, Henry Tilford, testified that 10% was the normal commission, that defendant had no written contract with any other sales agents, that he (Til-ford) did not know about the additional 2⅝ % for use of auto, etc., that, as a result of a disagreement with Shoney’s, defendant agreed to terminate the contract with Sho-ney’s, that “Shoney’s was not going to take the rest of the signs and there was no way we were going to sue Shoney’s”, that it was “the custom of the business not to force customers to honor purchase agreements”, that, after the agreement to terminate Shoney’s contract, Shoney’s purchased 6 signs which were much more expensive, and that plaintiff was “terminated” because “I decided he was not going to do an adequate job in Nashville so we would handle Nashville sales from Shelbyville”.

There is no evidence that there was ever any “mutual consent between the parties” for the termination of the contract.

Granting that such a contract might be terminated for some forms of misconduct or violation, there is no competent evidence of any conduct on the part of plaintiff which justified the termination of the contract between defendant and plaintiff.

No law has been cited or found which allows a seller and buyer to compose and execute a “release” reciting nebulous undefined conduct of a sales agent to be used as evidence of cause for cancelling the agents contract and for releasing the buyer from the obligation to perform a purchase contract negotiated by the agent, thereby depriving the agent of his rightful compensation for his efforts in procuring the sales contract. Since the agent was not a party to the “release” he is not chargeable with any of the statements therein which are, as to him, hearsay and inadmissible in any suit involving his rights.

This is not an action for wrongful discharge or wrongful termination in which the employee or agent seeks damages for lost future earnings. In this action the agent seeks only the earnings due him for the results of his efforts before discharge. The validity of discharge enters this case only as defendant asserts a custom to reduce the percentage of commission on a sale made before the discharge and delivered afterward.

Defendant’s principal defense is that deliveries were not made because the sales contract was abrogated by mutual consent. In this respect the case is comparable to that of a real estate broker who is denied his commission because the seller and buyer have mutually agreed to rescind the sales agreement.

In Deibler v. Graham, Mun.Ct. of App. of D.C.—62 A.2d 558 (1948), it was argued that the agent’s contract provided that commission was payable “out of the proceeds of sale” and that there were no proceeds because the parties to the sale had agreed to rescind it. The appellate court said:

It is fundamental that the parties to a sale may not agree to abandon it and compromise their differences and thereby deprive the agent of his commission without his consent.... A broker may not be deprived of his commission for services performed by subsequent acts of the parties without his consent. This was true at common law and remains so under the Maryland Code. (Citing 4 North Ave. Casino Co. v. Ferguson, 130 Md. 376, 100 A. 628, Pratt v. Realty Associates, D.C.Mun.App. 45 A.2d 478, Down v. DeGroot, 83 Cal.App. 155, 256 P. 438, 12 C.J.S. Brokers § 58, 8 Am.Jur. Brokers § 184.)

In Davidson v. Suber, Tex.App.1977, 553 S.W.2d 430, it was held that, where an agent negotiates a contract which is specifically enforceable, he cannot be deprived of his commission because the seller chooses not to require performance.

In Winchell Shoe Mfg. Co. v. Baehr, 42 Ohio App. 88, 181 N.E. 823 (1931), a salesman’s employment contract provided for payment on all orders accepted. The appellate court held that this required payment of commission on all orders accepted by the employer even though the orders were subsequently cancelled by the seller or buyer or the goods returned.

In the present case the written contract of employment provided:

For any and all sign business brought to Watco, Inc. by David E. Barnett and accepted by Watco, Inc., Watco, Inc. agrees to make and deliver any sign or signs ordered by any persons or company through David E. Barnett. Watco, Inc. agrees to pay the usual commission for services rendered by David E. Barnett in bringing about the purchase and sales of such sign or signs.

Thus the defendant had a duty to make, deliver, install and pay commission on all signs on the accepted order.

In Conrad v. Wright & Co. 309 Ill.App. 442, 33 N.E.2d 235 (1941), it was held that where a commission salesman produced and the seller accepted an order for coal which was acceptable to the purchaser, the seller could not avoid payment of commission because the coal could not be obtained to fill the order.

In the present case, the only excuses offered for non-delivery and non-payment are alleged but unproven. Of course, if the sales contract was unenforceable because of fraud or misrepresentation of plaintiff, defendant is excused for non-delivery; but, as stated above, there is no competent evidence that such is the case.

As a result of all the foregoing, this Court respectfully disagrees with the conclusion reached by the Chancellor. In so doing, this Court has accorded to the judgment of the Chancellor the presumption of correctness unless the evidence preponderates otherwise. TRAP Rule 13(d). This Court has not disregarded the general rule as to the finality of the Chancellor’s rulings on credibility. The presumption of correctness relates to findings of fact and not to conclusions of law. Billington v. Crowder Tenn.App.1977, 553 S.W.2d 590.

The disposition of this appeal is based upon uncontroverted facts and the law applicable thereto, to wit:

1. Plaintiff was engaged by written agreement to sell signs for defendant.
2. The written agreement provided that, when an order was procured by plaintiff and accepted by defendant, defendant was bound to deliver the order and pay plaintiff 1272% commission thereon.
3. Plaintiff did obtain and defendant did accept an order for 60 signs at $6950. each.
4. 8 of said signs were delivered and paid for, and plaintiff was paid 1272% commission thereon.
5. Thereafter, plaintiff was terminated without his consent and without cause.
6. Thereafter, 10 more of said signs were delivered and paid for, but plaintiff received only 873% commission on these.
7. The plaintiff has evidently waived the shortage in commission on the 10 signs by the conclusion of his brief as follows:
Your Plaintiff respectfully submits that he is entitled to a commission of twelve and one-half (1272%) percent on the remaining forty-two (42) signs that were contracted for between Watco, Inc., the Defendant herein, and Sho-ney’s.
8. The remaining 42 signs were never delivered because defendant “released” the buyer from its obligation without any competent evidence in this record to justify the release.
9. Plaintiff has earned $1002.50 on unrelated sales.
10. Plaintiff has been paid a total of $15,396.53.

Based upon the foregoing, all of which is uncontroverted, this Court concludes that, as a matter of law, plaintiff is entitled to the following:

1. Commission on 8 signs at 1272% $ 6,950.00
2. Commission on 10 signs at 8⅛%“' 5,791.66
3. Commission on 42 undelivered signs at 12⅛⅝ 36,487.50
4. Commission on unrelated sales ““ 1,002.50
TOTAL DUE PLAINTIFF $50,231.66
LESS TOTAL PAID TO PLAINTIFF 15,396.53
BALANCE DUE PLAINTIFE $34,835.13

The judgment of the Chancellor is modified to $34,835.13. Costs of this appeal are taxed against defendant. The cause is remanded to the Chancery Court for enforcement of the judgment and any other procedures which may be necessary and proper.

Modified and Remanded.

LEWIS and CANTRELL, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lillie RANDLE, Sam Harmon, and Augusta Blackwell, Plaintiffs-Appellants, v. Robert H. LYLE, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section at Nashville.
    Oct. 5, 1984.
    Application for Permission to Appeal Denied by Supreme Court Dec. 17, 1984.
    Richard H. Dinkins, Williams & Dinkins, Nashville, for plaintiffs-appellants; Oily Neal, Jr., Wilson, Bell & Neal, Marianna, Ark., of counsel.
    Thomas 0. Bratcher, Stanley & Bratcher, McMinnville, for defendant-appellee.
   OPINION

TODD, Presiding Judge, Middle Section.

Plaintiffs have appealed from the judgment of the Trial Court dismissing their suit with prejudice.

On January 5, 1983, there was filed with the Trial Clerk an affidavit as follows:

I, Oily Neal, Jr., am the attorney of record for the plaintiffs, Lillie Randle, Sam Harmon, and Augusta Blackwell, in the above captioned action.
Attached to this Affidavit is an authenticated copy of the judgment entered against the Defendant herein on the 22nd day of November, 1982 by the Circuit Court of Lee County, Arkansas.
The last known address of the defendant is Route 6, McMinnville, Tennessee County, Tennessee, (sic)
This affidavit is filed pursuant to Tennessee Code Annotated § 26-6-101, known as Uniform Enforcement of Foreign Judgment Act.

On the same date there was filed with the Trial Clerk a copy of a judgment entered on November 22, 1982, by the Circuit Court of Lee County, Arkansas. Said copy of judgment was certified by the Clerk of the Arkansas Court, but not in accordance with the Acts of Congress relating to interstate certification of judgments.

On the same date, a summons was issued to Robert H. Lyle, by the Trial Clerk; and, on the following date, January 6, 1983, the summons was served upon Robert H. Lyle.

On January 19,1983, the defendant, Robert H. Lyle, filed a motion as follows:

Comes now the Defendant in this cause and would move for this action to be dismissed for cause as shown as follows:
1. Defendant moves pursuant to Tennessee Rules of Civil Procedure No. 12 and its various sub-parts to dismiss this cause of action for failure to state cause of action.
2. That the attorney listed as Plaintiffs attorney, Olley Neal, Jr., is not an attorney licensed in the state of Tennessee and, thus, accordingly is practicing law without a license in this state.
3. The certification attached herein is improper. WHEREFORE, Defendant moves that the summons obtained and served upon him on January 6, 1983 and the attached judgment be dismissed.

Said motion bore a certificate of service upon counsel for plaintiffs.

On the same date, January 19, 1983, defendant filed a “Notice” as follows:

Notice is hereby given pursuant to Rule 6.04 of the Tennessee Rules of Civil Procedure that the undersigned will call this matter for hearing on the 4th day of February, 1983 at 10:00 a.m. or as soon thereafter as counsel can be heard.

Said “Notice” bears certificate of service upon counsel for plaintiff.

The next document in the technical record is a judgment entered on October 25, 1983, as follows:

This cause came on regularly to be heard on the 21st day of October, 1983, upon the Plaintiffs initial pleadings and the motion to dismiss filed by the Defendant, and from the argument of counsel and the entire record as a whole, from all of which this Honorable Court is of the opinion that the certification attached to the Plaintiffs pleadings is insufficient and that the Plaintiffs’ action should be dismissed. It is therefore, ORDERED, ADJUDGED AND DECREED as follows:
1. That the summons, judgment and affidavit filed by the Plaintiffs be and hereby are dismissed with prejudice and the court costs are taxed against the Plaintiffs.
ENTER: This the 25th day of October, 1983.

On November 25, 1983, (being a Monday) Tennessee Counsel for plaintiffs filed a motion to alter or amend which was heard on December 13, 1983. The transcript of that hearing consists of statements of counsel and the Trial Judge, but no evidence. Plaintiffs’ motion was overruled.

On appeal, Plaintiffs concede that the certificate on the Arkansas judgment was inadequate and that the motion to dismiss was proper. Plaintiffs only complain of the words “with prejudice” in the order of dismissal.

TRCP Rule 41.02(3) provides as follows:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.

It is seen that this rule makes no specific provision for orders of dismissal as a result of motions under Rule 12, except for the expression “any dismissal not provided for in this Rule 41” and excepts from the “with prejudice provision” dismissals for lack of jurisdiction, improper venue and lack of indispensable party.

However, Rule 41.02(3) contains the expression “Unless the court in its order of dismissal otherwise specifies”. This implicitly recognizes the authority (ergo duty) of the Trial Court to “otherwise specify” in all those cases in which a palpable and unjustified injustice would result from dismissal with prejudice.

Moreover, it has been held that a Court of Law is without power to enter an order “with prejudice” or “without prejudice”. Long v. Kirby-Smith 40 Tenn.App. 446, 292 S.W.2d 216 (1956).

Furthermore, TCA § 28-1-105 provides as follows:

New action after adverse decision. — If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest. [Code 1858, § 2755 (deriv. Acts 1715, Ch. 27, § 6; 1819, ch. 28, § 3); Shan., § 4446; mod. Code 1932, § 8572; T.C.A. (orig. ed.), § 28-106.1

Under the present record, it cannot be said that the dismissal of this suit was upon any ground concluding the plaintiffs right of action. The record contains no “plea to the merits”, that is no denial of the existence or validity of the judgment nor assertion of affirmative defense such as fraud or payment. If so, this Court might presume that the Trial Court received evidence and dismissed upon the merits. Absent such defense in the record, this Court must presume that the action of the Trial Judge was based upon the record before him which was limited to the affidavit and copy of judgment which, under TCA § 26-6-101, appear to serve as the “complaint” in the enforcement of foreign judgments. In this view of the case, the action of the Trial Judge must be considered to be a sustaining of the motion to dismiss on the grounds stated therein, none of which are of such nature as to “conclude the plaintiffs right of action”.

If defendant had filed a defense to plaintiffs’ right of action (the merits) and the case had come on for trial on such defense, the Trial Judge would have been justified in excluding the incompetent evidence of the judgment, and in ruling on the merits. The record does not support this disposition.

A permissible disposition under this record would have been to order the incompetent record of judgment to be removed from the files and record of the Clerk and returned to the sender.

For the reasons stated, the judgment of the Trial Court is modified to delete therefrom the words, “with prejudice” and, as modified the judgment is affirmed. Costs of this appeal are taxed equally, that is, one half of the appellate costs is taxed against appellant and one half of the appellate costs is taxed against appellee. The cause is remanded for any necessary further proceedings including collection of costs.

Modified and Remanded.

LEWIS and CANTRELL, JJ., concur.


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellee, v. John Joseph DORNING, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    July 19, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      Jay Fred Friedman, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Jennifer Helton Small, Deputy Atty. Gen., Nashville, Sidney T. Bruce, Asst. Dist. Atty., Memphis, for appellee.
   OPINION

TATUM, Judge.

The appellant, John Joseph Doming, was convicted of two counts of aggravated assault for which he was sentenced to serve two consecutive terms of 4 years each in the State penitentiary. On this appeal, he makes issue that the trial judge unlawfully refused to grant him a continuance and refused to grant him a new trial for newly discovered evidence. We find no merit in the issues and affirm the judgment below.

The sufficiency of the evidence is not challenged. The assaults for which the appellant was convicted occurred outside Danny’s Lounge in Memphis at approximately 4:15 P.M. on August 24, 1982. The victim, James Gregory, belonged to a motorcycle club. The appellant and others who allegedly assailed the victim belonged to another motorcycle club.

The appellant’s defense was an alibi. He testified that at the time of the offense, he was in Jackson, Tennessee with a woman named Patty Manus.

The case was originally set for trial on May 24, 1983. The trial was delayed because of the failure of the victim to obey a subpoena that had been served upon him. The body of the victim was attached and he was held in jail until May 26, 1983, when the trial began. The trial was concluded on May 27, 1983. Allegedly, defense witnesses Patty Manus and Craig Culley, were in court on May 24 and May 25. The appellant alleges that Patty Manus did not appear on May 26 and May 27 because her daughter was injured by a baseball on May 26. He alleges that Culley, an employee of Danny’s Club, was available through May 26 but was unable to be absent from work on May 27, when defense proof was offered. Neither of these witnesses were subpoenaed. At 1:15 P.M. on May 27, after the State had rested its case, defense counsel made the following statement to the court:

“MR. FRIEDMAN: Your Honor, I’ve got two problems this afternoon. I had a witness that stayed here all day yesterday. He was not under subpoena. He appeared voluntarily so we didn’t feel the need to subpoena him. We had this other lady that I addressed the Court about when we started the trial, before we started the trial, Patty Manus. Her little girl had gotten sick. She has not been able to get back down. We’ve got two very material witnesses absent. We did not have them under subpoena since they appeared voluntarily and were here, one of them for two days and one of them had been on call and then was here yesterday all day. And since they weren’t under subpoena, I’ve been unable to force them back and I don’t know exactly what my legal status is at this point. I don’t know whether to ask the Court for a mistrial or a continuance or just where we are at this point. I would submit to the Court that the witnesses did appear voluntarily and we just had no idea these things would crop up, no reason to anticipate it. One of them is the person who was with him on the day in question in another city. Another is a person who was present out there at Danny’s Club that afternoon and could testify that he was not there. I don’t know how much more material to this lawsuit two witnesses could be.”

The appellant’s first issue is that the trial court erred by refusing to grant him a continuance. He argues that constitutional due process guarantees him the right to compel the attendance of witnesses and to present them in his defense. We are in full agreement with the appellant on this point. However, the appellant failed to avail himself of this constitutional right by placing these witnesses under subpoena so as to empower the court to compel their attendance.

It is well settled that a request for a continuance is properly overruled when there is a lack of diligence or negligence in procuring the witnesses. State v. Jefferson, 529 S.W.2d 674 (Tenn.1975). The failure to subpoena a witness demonstrates a lack of diligence in procuring the witness’s attendance. Houston v. Lane, 501 F.Supp. 5 (E.D.Tenn.1978), affm’d. 636 F.2d 1217 (6th Cir.1980), cert. denied, 101 S.Ct. 1714, 450 U.S. 1003, 68 L.Ed.2d 207 (1981). A requirement that a case be continued because an unsubpoenaed witness left the courthouse, would deprive the trial judge of the power to control the trial; such power would be vested with the witness. Had these witnesses been placed under compulsory process, then the trial judge could have determined whether their excuse for leaving was of such urgency as would justify the continuing of the case after commencement of trial. Had the witnesses left without permission of the trial judge, then they could have been attached and brought back to court. Under the circumstances as existed here, the trial judge was powerless to compel the attendance of these witnesses or order them returned to testify.

We also note that no motion was made for a continuance. As above indicated, counsel observed that since the witnesses were not under subpoena, he was unable to “force them back.” He then stated that, “I don’t know whether to ask the court for a mistrial or a continuance or just where we are at this point.” Counsel did not ask for either a mistrial or a continuance.

The appellant next states that the court erred in refusing a new trial on the basis of newly discovered evidence. An affidavit of Rick Joslin was filed with the motion for a new trial. It indicated that Joslin was in Danny’s Club at the time of the assaults. He alleges that no fight or altercation occurred in the parking lot while he was inside the club. The affidavit does not indicate how the witness knew what was occurring in the parking lot since he does not claim to have been in the parking lot. Therefore, the affidavit does not indicate that the testimony of the witness would likely have produced a different result in the trial. See State v. LeQuire, 634 S.W.2d 608 (Tenn.Crim.App.1981).

Moreover, there is no demonstration of due diligence on the part of the appellant in obtaining this evidence. See Reese v. State, 3 Tenn.Crim.App. 97, 457 S.W.2d 877 (1970). The matter of a new trial for newly discovered evidence is within the trial judge’s discretion. Taylor v. State, 475 S.W.2d 551 (Tenn.Crim.App.1971). The trial judge did not abuse his discretion in refusing a new trial on the basis of the affidavit of Rick Joslin.

We find no merit in the issues and affirm the judgment of the trial court.

AFFIRMED.

DAUGHTREY and SCOTT, JJ., concur.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. Keith CARTER, Appellant.
    No. 83-50-III.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Aug. 1, 1984.
    Permission to Appeal Denied by Supreme Court Nov. 13, 1984.

      William M. Leech, Jr., Atty. Gen. & Reporter, David M. Himmelreich, Asst. Atty. Gen., Mary Hausman, Mark Beveridge, Asst. Dist. Attys. Gen., Nashville, for ap-pellee.
    Richard McGee, Senior Asst. Public Defender, Nashville, Jeff Devasher, Research Asst., for appellant.
   OPINION

O’BRIEN, Judge.

The defendant was found guilty of aggravated rape and robbery in the Davidson County Criminal Court. His sentences for the offenses were fixed at life imprisonment and not less than five (5) nor more than (10) years respectively. The sentences run concurrently.

Defendant’s contention that a statement made by him was obtained in violation of his Fifth Amendment right against self-incrimination cannot be sustained. The taking of defendant’s statement by the police, and his subsequent arrest, began when defendant initiated the events which resulted in the charges against him. He was in jail on charges of burglary and possession of burglary tools. He called the police offering to exchange information about a rape under investigation in exchange for assistance in making bond on his arrest charges. Defendant was taken from jail to police headquarters where he was advised of his rights, acknowledged that he understood them, and signed a waiver to that effect. He attempted to implicate a fellow prisoner who was being held on other rape charges as the perpetrator of the rape of the victim in this case. He related facts to the officers indicating great intimacy with the circumstances of the offense. These details were not consistent with the other prisoner’s method of operation. Defendant was instructed to go back to see if he could obtain more information from his cellmate. In the meantime the officers continued their investigation. Two or three days later he called the officers again and was taken to headquarters for a further interview. He was again advised of his rights and signed a waiver. This time he described in greater detail the events which had occurred in the course of the rape and robbery of this victim. He attributed this information to the other prisoner. The police officer conducting the investigation told him she did not believe he was telling the truth. He was given the opportunity to make a phone call. In short order thereafter he confessed. He has failed to present any credible evidence to support his contention here. The evidence fully and fairly shows he was aware of his right to have an attorney present, and waived that right. It is also clear the statements given by him were voluntary and not in violation of any constitutional right.

Defendant says a pre-trial motion to suppress in-court identification should have been granted. He insists the pre-trial lineup was so unnecessarily suggestive and conducive to mistaken identification that he was denied due process. The trial court specifically found there was no suggestiveness involved in the pre-trial identification procedure. We agree. Nonetheless we have read the record of the suppression hearing, and have examined photographs of the line-up. There was nothing about the line-up itself which we found to be improper. The photographs reveal the participants to be similar in height, weight, and general physical appearance. Other than the complaint about the appearance of the participants in the line-up defendant has offered no evidence of error in the manner in which it was conducted. He was allowed to have an attorney present. In assessing the victim’s reliability we find (1) she observed the defendant in a hallway a few minutes prior to the rape and spoke with him. The attack took place over a ten to fifteen minute period in an area with which the victim was familiar. The lighting at all times during the attack was good. (2) Her description of her assailant to police immediately following the assault is accurate. She directed the assembly of a composite picture by the police several days after the assault which was an excellent likeness. (3) Her full attention was focused on her assailant both prior to and during the course of the attack upon her. (4) At the line-up, which occurred some three and one-half months after the assault, the victim selected two men, defendant and another, as possibly being her assailant. She explained that their size and facial characteristics were similar but none of the participants in the line-up wore a hat at the same time. A hat like the one worn by the rapist was passed around. She had been told that unless she was one hundred percent sure she should not identify any one person, and so she did not. She did identify defendant at the suppression hearing and at trial. Under the totality of the circumstances we find the victim’s identification to be reliable under the criteria set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Bennett v. State, 530 S.W.2d 511, 513 (Tenn.1975).

Defendant claims error on denial of a motion to compel discovery under Rule 16 of the Tenn.R.Crim.P., or a subpoena under Criminal Procedure Rule 17, of the records of a psychologist who had been consulted by the victim some two months after the attack occurred. Defendant was not entitled to discovery of the psychologist’s records under the auspices of Rule 16. These records were not in the possession, custody or control of the State and were not within the court’s jurisdiction under the provisions of the rule. The court was under no obligation to subpoena the patient records of Dr. Gaines, or to inspect such records under the provisions of Rule 17. Reliance is placed on the case of the State v. Brown, 552 S.W.2d 383 (Tenn.1977), as support for the motion which was filed by defendant. In Brown our Supreme Court held that medical and hospital records of the prosecuting witness while she was a patient at a State Mental Hospital were discoverable under the statutes relating to the copying of books, papers and documents held by the attorney for the State. The trial court here, in denying the motion, distinguished the instant case from Brown on the basis that this prosecuting witness had begun visiting a clinical psychologist some two months after the time of the assault upon her. We agree that his action was proper and Brown was not applicable under these facts. Every defendant has a constitutional right to compulsory process for witnesses in a criminal case. T.C.A. Sec. 40-17-105; and Tenn.R.Crim.P. 17. The psychologist in question, Dr. Larry Gaines, had indicated his willingness to respond to a subpoena, with his records. Production of the records of his treatment of the victim in this case was not barred by the statutes relating to privileged communications. See T.C.A. Sec. 63-11-213, T.C.A. Sec. 23-3-105. There is no reason why the records could not have been available to the defendant had they been required. Counsel specifically stated to the court that he did not intend to call the doctor as a witness. The issue is without merit.

Defendant says he was entitled to a mistrial due to the reference by a police officer witness, to “other rapes” during rebuttal examination by the State. There is no merit in this contention. Defendant initiated contact with the police, while he was in jail on other charges, in an attempt to incriminate a cellmate in the rape involved in this case. The officer, in his rebuttal testimony, was endeavoring to explain that on their second interview the defendant began describing other rapes which his cellmate had purportedly committed. This was the trial court’s finding when he overruled the motion for a mistrial. We hold he was correct in his ruling.

Defendant next asserts the trial court erred in denying a request for a jury instruction on the definition of “impairment of a mental faculty” as derived from our opinion in State v. Henderson, 623 S.W.2d 638 (Tenn.Cr.App.1981). It is insisted the State’s evidence raised the issue of the impairment of the victim’s mental faculties and the failure to give the jury an affirmative instruction on that issue, rendered the instructions as delivered inaccurate and incomplete. A defendant has a right to have every issue of fact raised by the evidence and material to the defense submitted to the jury under proper instructions. Wallace v. State, 500 S.W.2d 629, 632 (Tenn.Cr.App.1973). The evidence was plain that the victim suffered physical injury in the form of bruises and abrasions. There was also evidence that she found it necessary to seek professional aid for her mental suffering some two months after the assault occurred. However great her mental suffering, the evidence does not raise an issue of mental impairment which must be something more than “emotional trauma”. See State v. Henderson, supra. The instruction given was a full, fair and complete statement of the law regarding aggravated rape. The evidence was sufficient for the jury to find the victim suffered personal injury as charged in the indictment. We do not find error in the instruction as delivered, or in denial of the special instruction requested.

Finding the record to be free of reversible error we affirm the judgment of the trial court.

DUNCAN and SCOTT, JJ., concur.


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellee, v. Michael Edward CHAMBLESS, Appellant.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Oct. 11, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      Hughie Kagan, Jessie H. Ford, III, Jackson, for appellant.
    William M. Leech, Jr., State Atty. Gen. & Reporter, Gordon W. Smith, Asst. State Atty. Gen., Nashville, James G. Woodall, Dist. Atty. Gen., Richard Leigh Grinalds, Asst. Dist. Atty. Gen., Jackson, for appel-lee.
   OPINION

BYERS, Judge.

The defendant was convicted of murder in the second degree and sentenced to serve forty-five years. He was also convicted of using a firearm in the commission of a felony and sentenced to serve five years on the offense. The trial court found the defendant to be a Range II offender.

The defendant says the trial court erred in denying his motion to dismiss the indictment on the ground of racial and gender discrimination in the selection of grand jury foremen in Madison County, says the evidence was not sufficient to sustain the jury’s guilty verdict, says the trial court erred in allowing evidence of the defendant’s removal of the victim’s body from the shooting scene, says the trial court erred in excluding certain testimony of the victim’s wife, says the trial court erred in failing to instruct the jury on temporary insanity, says the trial court erred in denying the motion to suppress the defendant’s confessions, says the trial court erred in failing to instruct the jury contemporaneously that the defendant’s prior conviction was to be considered only for impeachment purposes, says the trial court erred in sentencing the defendant for the use of a firearm during the commission of the murder, and says the defendant’s sentence was erroneous because the trial judge considered improper evidence at the sentencing hearing.

The judgments are affirmed.

In a pretrial motion, the defendant sought to dismiss the indictments on grounds that he had been denied due process and equal protection of the laws by systematic exclusion of black persons and women from the position of grand jury foreman. On appeal, he relies principally upon Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), in which the Supreme Court assumed that racial discrimination in selection of the grand jury foreman would require reversal of a conviction. For several reasons, we conclude the defendant is not entitled to relief on this issue.

Initially, under decisions of our State Supreme Court, this defendant, a white male, has no standing to challenge the failure to appoint a woman as grand jury foreman. State v. Workman, 667 S.W.2d 44 (Tenn.1984); see also State v. Coe, 655 S.W.2d 903 (Tenn.1983).

Next, it is not at all clear that a white defendant is denied due process by the exclusion of black persons from service as foreman of the grand jury. In a recent decision, the United States Supreme Court rejected an identical claim in the context of a federal grand jury. Hobby v. United States, — U.S. -, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984). The Court distinguished Rose v. Mitchell on two grounds. First, that cause was brought by members of the allegedly excluded class under an equal protection claim. Second, the state selection process was more subject to abuse than the federal method, by which the foreman is chosen from the members of a presumably properly constituted grand jury panel; and, the state grand jury foreman was thought to have “virtual veto power” over the indictment proceedings, in contrast to the “strictly clerical tasks” of the federal foreman. 104 S.Ct. at 3098.

The Court in Hobby concluded:

We hold that, assuming discrimination entered into the selection of federal grand jury foremen, such discrimination does not warrant the reversal of the conviction of, and dismissal of the indictment against, a white male bringing a claim under the Due Process Clause.

Id. 104 S.Ct. at 3099.

The defendant in the case before us is a white male. He would therefore fall within the rationale in Hobby that the reversal of the conviction and dismissal of the charges is not warranted under his due process claim. The state process in Mitchell was, of course, that of Tennessee. Although we think that the powers of our grand jury foremen were greatly exaggerated by the Supreme Court, it appears that Hobby leaves open the possibility of the due process claim made in the case before us.

Therefore, we have examined the record under the guidelines of Rose v. Mitchell. The record shows that during the pertinent times the black population of Madison County was 34.2%. There is no showing of what percentage of this number would be qualified to serve as foreman of the grand jury by age or other neutral qualifications. The evidence further shows that during a period of fifty years only nine persons have served as grand jury foreman. The trial judge who has been either exclusively the person to select the foreman or the person to appoint the foreman in consultation with another judge since 1974 testified that in the selection of the foreman, women and blacks have been considered but, for reasons not shown, have not been selected.

We do not find from the evidence that any recognizable class is singled out for exclusion from consideration for this position. Considering the small number of appointments to the position over the fifty-year period, we cannot say that the failure to appoint a black person is the result of systematic exclusion. See Rose v. Mitchell, supra; State v. Beal, 614 S.W.2d 77 (Tenn.Cr.App.1981).

The evidence shows that on June 29, 1983, the defendant shot the deceased six times with a .22 caliber rifle and subsequently engaged another to help him remove the body from the scene of the killing. In the course of the removal, the man who was helping the defendant alerted a wrecker driver that the body was in the trunk of his car. The police apprehended the defendant and his companion, and recovered the body and the rifle.

The state’s evidence also consisted of statements made by the defendant to lay people and to the police in which the defendant admitted shooting the deceased.

At trial, the defendant testified the shooting was done in self-defense.

The evidence in this case is more than sufficient to support the verdict of the jury. The statements of the defendant to officers and others that he shot the deceased and the evidence that he shot the deceased six times, took the deceased’s watch and wallet, and attempted to remove the body from the scene of the crime in an apparent effort to conceal the killing were sufficient to support an inference of malice upon which the jury could find guilt of murder in the second degree and reject the claim of self-defense raised by the defendant.

The evidence is sufficient for a rational finder of facts to find guilt beyond a reasonable doubt.

The trial court properly allowed the state to show that the defendant removed the body of the deceased from the home and that he placed it in the trunk of a car to be transported away. This conduct was relevant on the issue of the defendant’s intent and guilty knowledge. This evidence could be considered as an attempt by the defendant to evade prosecution, which is relevant on the issue of self-defense as well as on the intent of the defendant in killing the victim. See State v. Braggs, 604 S.W.2d 883 (Tenn.Cr.App.1980).

The defendant was not entitled to introduce the evidence of the deceased’s former wife concerning the deceased’s health and their separation. This evidence, even though the defendant claimed the deceased used him as an instrument of suicide, had no relevancy to prove the existence or non-existence of any fact at issue in this case. See State v. Banks, 564 S.W.2d 947 (Tenn.1978).

The defendant was not entitled to have the jury instructed on the defense of temporary insanity as he insists. There simply is no evidence in this case to support a theory of insanity, temporary or otherwise. The only evidence which could remotely be associated with this claim is the statement made by the defendant, “I just got mad, went crazy,” and a statement by the man who helped the defendant that when the defendant said he had killed a man, “I just thought he was crazy.”

These statements, in the absence of other proof, were not sufficient to raise a defense of insanity and require an instruction thereon.

The defendant contends that statements made by him to officers about the killing were inadmissible because the officers failed to advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The statements introduced were made on June 30, 1983, at the time of the defendant’s arrest, and on June 30,1983, some two hours after the arrest, and on July 6, 1983.

When the officers first discovered the body in the trunk of the car, they immediately handcuffed the defendant and the man who was helping him to dispose of the body. One of the officers orally advised the defendant of his rights. The defendant contends the advice was inadequate because it was not broad enough to encompass all of the Miranda warnings.

The testimony of the officer shows the advice given was sufficient to satisfy the Miranda rule, and the finding of the trial judge to this effect is supported by the evidence.

Furthermore, the statements made by the defendant at the time of his arrest were statements which the defendant volunteered without questioning by the officers.

An officer is not required to give a verbatim recitation of the Miranda warnings to avoid the pollution of voluntary statements made by an accused during questioning. California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Thus, the advice given substantially complied with the advice of rights rule.

Based on this and the fact that spontaneous statements made by an accused are admissible even in the absence of any warning, State v. Croscup, 604 S.W.2d 69 (Tenn.Cr.App.1980), the statements made at the time of the arrest were admissible.

At the station house, officers commenced an interview of the defendant, and they attempted to advise him of his rights. The defendant interrupted the officers and told them he understood his rights. The advice given at this interrogation did not completely encompass all the advice mandated by Miranda. However, the defendant had been given the warnings only two hours earlier. In such a case, subsequent statements made during interrogation may be admitted without the necessity of again giving the Miranda warnings. Reaves v. State, 523 S.W.2d 218 (Tenn.Cr.App.1975).

At the time of the interrogation on July 6, 1983, the officers conducting the interrogation were investigating a case which was unrelated to the murder charge. The record shows they advised the defendant of the nature of their investigation and that they advised him of his rights under Miranda. The defendant waived his rights and agreed to talk to the officers. In the course of this conversation, the defendant, without interrogation on the subject, commenced to talk about this case.

At the time of this interrogation, the officers were not aware an attorney had been appointed to represent the defendant. The defendant did not ask that the attorney be present or indicate any reluctance to talk to the officers. In such situations the statements of an accused are admissible into evidence. See Scharff v. State, 551 S.W.2d 671 (Tenn.1977).

When the defendant testified, evidence of a previous conviction was shown which touched upon his credibility. The defendant says the trial judge should have instructed the jury, at the time this was introduced, on the limited purpose of such evidence.

The trial judge properly instructed the jury, in the general instructions, on how they were to consider this evidence. The defendant is not entitled to a new trial on the basis of this delay.

The defendant says he cannot be convicted of using a firearm in the commission of a felony and of murder in the second degree. He contends that the use of a firearm can be considered by the jury on finding malice to support the murder conviction and is thus an enhancing factor under the statute defining murder in the second degree.

We do not agree with the defendant’s contention in this regard. T.C.A. § 39-2-212 does not contain any enhancement factors for second degree murder. This being so, a conviction under T.C.A. § 39-6-1710 was proper. State v. Hudson, 562 S.W.2d 416 (Tenn.1978).

The defendant says the trial court erroneously found the defendant was an especially aggravated offender on a finding that the defendant was on probation when this offense was committed. This finding was based upon hearsay evidence.

Well before the sentencing hearing, the state gave notice they would rely upon the previous conviction and the fact that the defendant was on probation therefrom at the time this crime was committed. On direct examination in the guilt phase, the defendant admitted that he had pled guilty to the previous offense.

The state introduced a copy of this conviction, which was certified by a deputy clerk of the 18th Judicial Circuit of Pitts-burg County, Oklahoma.

The defendant claims this was not a sufficient certification of the record and that the testimony of the probation officer who talked with a clerk in Oklahoma about the matter was hearsay, and he further says there is no showing the defendant had counsel at the time of the Oklahoma conviction.

Under T.C.A. § 40-35-209(b) reliable hearsay may be introduced to show previous convictions provided the opposing party has a fair opportunity to rebut any hearsay admitted at the sentencing hearing.

There is nothing in this record to indicate the defendant would have been denied an opportunity to rebut this evidence if he wished to do so. The defendant did not deny the truth of the matters shown by the evidence; he merely relied upon his objection and nothing more. At the hearing, the defendant did not raise an objection to the evidence on the basis of lack of counsel at the time of the Oklahoma conviction. He may not do so now.

The trial court’s ruling was based upon the Oklahoma conviction and not upon other matters detrimental to the defendant and not contained in the notice to seek enhanced punishment.

We find no merit to the defendant’s assignment on the matter of finding the defendant to be a Range II offender.

WALKER, P.J., and DUNCAN, J„ concur.

      . Even if our state appointment procedure is more susceptible to impermissible discrimination, it is difficult to see how the assumed veto authority in the bringing of indictments could work to the detriment of a particular defendant, since it could only nullify a true bill.
      In assuming a veto power in the withholding of the signature of the foreman on a true bill the United States Supreme Court does not recognize that the function is merely ministerial and may be cured by resubmitting the bill for signature of the foreman. The dismissal of an indictment for lack of endorsement by the grand jury foreman does not prohibit the return of a subsequent indictment on the charge. Furthermore, the failure of the grand jury foreman to endorse the indictment is not automatically fatal. The accused must make a timely motion to dismiss the indictment for absence of the endorsement. If the defendant goes to trial without objection, the defect is waived, and the indictment is valid. Applewhite v. State, 597 S.W.2d 328 (Tenn.Cr.App.1979).


author: PER CURIAM.

text:
    Coral Brown WELLER, Petitioner, v. STATE of Texas, Respondent.
    No. C-3010.
    Supreme Court of Texas.
    Sept. 19, 1984.
    O’Quinn, Hagans & Wettman, John O’Quinn and Frank M. Staggs, Jr., Houston, for petitioner.
    Jim Mattox, Atty. Gen., Joe D. Jarrard, Asst. Atty. Gen., Austin, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

This is an appeal from a personal injury judgment in favor of Coral Brown Weller against the State of Texas. The jury returned a verdict against the State in excess of the maximum liability limits of the Texas Tort Claims Act. The trial court reduced the award to conform to the State’s maximum liability of $100,000. The trial court then added prejudgment interest to one component of Weller’s damages, her past medical expenses, bringing the sum of the final judgment to $105,903.97, plus post-judgment interest.

The court of appeals reformed the judgment of the trial court to eliminate the prejudgment interest and, as reformed, affirmed the judgment of the trial court. 666 S.W.2d 362. The court of appeals stated two reasons for rejecting the award of prejudgment interest: (1) the award of prejudgment interest in cases of personal injury is erroneous, and (2) the Texas Tort Claims Act provides a maximum recovery against the State of $100,000 per person. We refused Weller’s application for writ, no reversible error.

We agree that the Texas Tort Claims Act prohibits the addition of prejudgment interest in this case. Weller had no statutory right to prejudgment interest, but rather sought such interest as an element of damages under common law. See Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897). At the time this case was tried, the Act permitted a maximum damage recovery of $100,000 per person. Because the jury found damages in excess of $100,000, the liability limitation of the Act precludes the award of prejudgment interest as damages here.

Our disposition of the present application should not be construed as approval of the court of appeal’s additional holding that the award of prejudgment interest in eases of personal injury is never permissible. We reserve for the appropriate case the question whether the plaintiff in a case of personal injury is entitled to prejudgment interest on liquidated damages.

Weller’s motion for rehearing is overruled.

      . Texas Tort Claims Act, ch. 50, § 3, 1973 Tex. Gen.Laws 77, Amended by Act of September 1, 1983, ch. 530, § 3(b), 1983 Tex.Gen.Laws 3784, 3085.

      . At the time of trial the Texas Tort Claims Act limited the State’s liability for bodily injury or death to $100,000 per person and $300,000 for any single occurrence. Effective September 1, 1983, the Act was amended to increase the maximum limits on the liability of the state government. See, Tex.Rev.Civ.Stat.Ann. art. 6252-19 § 3(b) (Vernon Supp.1984).


text:
    Mitchell Lee CUMMINS, Petitioner, v. PAISAN CONSTRUCTION COMPANY, Respondent.
    No. C-3070.
    Supreme Court of Texas.
    Sept. 19, 1984.
    Krist, Gunn, Weller, Neumann & Morrison, Richard Morrison and Ronald D. Krist, Houston, for petitioner.
    Hirsch, Glover, Robinson & Sheiness, Marc A. Sheiness, Houston, for respondent.
   PER CURIAM.

Mitchell Lee Cummins seeks review of a trial court’s order setting aside a default judgment against Paisan Construction Company in a personal injury suit. The trial court granted Cummins a default judgment against Paisan on December 30, 1981. Paisan moved to set aside the default judgment and for a new trial. On January 26, 1982, within thirty days of the date of judgment, the trial court granted Paisan’s motions. At the new trial the court rendered judgment for Paisan on the basis of jury findings.

Cummins appealed the trial court’s granting of a new trial, alleging Paisan had not proved that service of citation on it was legally deficient. The court of appeals determined that Paisan had produced sufficient evidence at the hearing on Paisan’s motions to justify the trial court’s actions and affirmed the judgement. 682 S.W.2d 323. Cummins asks this court to reverse the court of appeals, set aside the trial court’s final judgment on the jury findings, and reinstate the default judgment. We refuse Cummins’ application for writ of error, no reversible error.

The court of appeals based its affirmance on the sufficiency of evidence produced at the evidentiary hearing on motion for new trial. It was unnecessary for the appellate court to examine this question, because in this case the trial court’s order setting aside the default judgment and granting the motion for new trial is not reviewable on appeal. The motion for new trial was timely filed and the court granted the motion during its period of plenary power over the judgment. Rule 329b, Tex.R.Civ.P. “An order granting a new trial within that period is not subject to review either by direct appeal from that order, or from a final judgment rendered after further proceedings in the trial court [citations omitted].” Burroughs v. Leslie, 620 S.W.2d 643, 644 (Tex.Civ.App.—Dallas 1981, writ ref d n.r.e.). While the court of appeals, in affirming the trial court, employed incorrect reasoning, it nevertheless reached the correct result. Accordingly, we reject Cummins’ challenge of the trial court’s grant of a new trial and refuse the application for writ of error, no reversible error.


text:
    George YOUNG, Petitioner, v. C.E. HODDE d/b/a Aggieland Harley-Davidson et al., Respondents.
    No. C-3296.
    Supreme Court of Texas.
    Sept. 19, 1984.
    Moore, Correa & Palmer, Evette Correa, Bryan, for petitioner.
    Frank Steelman, Lawrence, Thornton, Payne, Watson & Kling, Chris J. Kling, Bryan, for respondents.
   PER CURIAM.

Petitioner, George Young, brought this suit against respondents, C.E. Hodde and Harley-Davidson Motor Company, Inc. under the Deceptive Trade Practices Act for breach of express and implied warranties on a Harley-Davidson motorcycle sold him by Hodde. After respondents had answered, Young moved for a summary judgment on his claim. Hodde filed an answer to Young’s motion for summary judgment and also filed a counterclaim against Young seeking to recover for the cost of repairs to the motorcycle. Hodde then filed a motion for summary judgment on his counterclaim. Young filed a sworn denial to the counterclaim as well as a denial to Hodde’s motion, but did not amend his motion for summary judgment to seek affirmative relief on Hodde’s counterclaim.

The trial court granted Young’s motion for summary judgment and then rendered a judgment in the form of a final judgment which expressly denied all other relief sought in the cause. The court of appeals concluded that the trial court erred in rendering the take-nothing judgment on Hodde’s counterclaim because Young’s motion for summary judgment did not request that relief. It reversed and remanded the cause to the trial court. 672 S.W.2d 45.

We agree with the conclusion of the court of appeals that the trial court erred in rendering the take-nothing judgment against Hodde’s counterclaim in the absence of a motion for summary judgment by Young seeking that relief. Teer v. Duddlesten, 664 S.W.2d 702 (Tex.1984). The court of appeals, however, implied that such an error in the rendition of a final judgment was jurisdictional in nature. The erroneous rendition of a final judgment is not fundamental error. Teer, 664 S.W.2d at 704; Schlipf v. Exxon Corp., 644 S.W.2d 453, 455 (Tex.1982). Here, Hodde complained of the erroneous final judgment in his appeal; therefore, the court of appeals properly considered it.

The application for writ of error is refused, no reversible error.

      . Tex.Bus. & Comm.Code Ann. § 17.41-.63.


author: McGEE, Justice.

text:
    MATTHEWS TRUCKING COMPANY, INC., d/b/a Louisiana-Matthews Trucking Company, Inc., et al., Petitioners, v. Norris E. SMITH, Respondent.
    No. C-2870.
    Supreme Court of Texas.
    Nov. 28, 1984.
    Rehearing Denied Jan. 16, 1985.
    Kain, Reedy and Hornbuckle, John 0. Kain, Houston, for petitioners.

      Ford, Needham and Johnson, Thomas R. Needham, Dallas, Atchley, Russell, Wal-drop and Hlavinka, C. Cary Patterson, Tex-arkana, for respondent.
   McGEE, Justice.

The crux of this personal injury case is whether the correct defendant was named. There are two entities with similar names. Matthews-Lufkin, Inc., d/b/a Matthews Trucking Company is the correct defendant. Matthews Trucking Company, Inc., d/b/a Louisiana-Matthews Trucking Company, Inc., was the entity named as defendant in plaintiffs petition.

The trial court granted a motion for summary judgment in favor of Matthews-Luf-kin, Inc., d/b/a Matthews Trucking Company because it was not sued within two years from the date of the accident. Tex. Rev.Civ.Stat.Ann. art. 5526 (Vernon Supp. 1984). The court of appeals reversed the trial court’s judgment and remanded the cause for a trial on the merits. 665 S.W.2d 836. We reverse the court of appeals’ judgment and affirm the trial court’s judgment.

On February 17, 1978 Smith was allegedly injured in a collision with a vehicle driven by Gerald W. Foster, an employee of Matthews-Lufkin, Inc., d/b/a Matthews Trucking Company. Smith’s attorney discussed the accident with Surplus Underwriters Casualty Insurance Co., the insurance carrier for Matthews-Lufkin, Inc., d/b/a Matthews Trucking Company; however, settlement negotiations were unsuccessful. Although a representative of the insurance carrier told the attorney that the defendant was “Matthews Trucking Company,” there is no claim that this was a misrepresentation of the corporate identity of the defendant. Smith’s attorney claimed that he called the Secretary of State’s Office, Corporate Records Division, and was advised that state records reflected only one “Matthews Trucking Company,” that being Matthews Trucking Company, Inc., d/b/a Louisiana-Matthews Trucking Company, Inc.

On February 15, 1980 Smith filed his original petition against Foster and Foster’s alleged employer, Matthews Trucking Company, Inc., d/b/a Louisiana-Matthews Trucking Company, Inc. The petition recited that Louisiana-Matthews Trucking Company, Inc. was a foreign corporation, and could be served with process by serving its agent, C.T. Corporation, Republic National Bank Building, Dallas, Texas.

Louisiana-Matthews Trucking Company, Inc. was served with process on March 5, 1980. Smith’s attorney was contacted on March 20, 1980 by Louisiana-Matthews Trucking Company, Inc. and was told that it was not the trucking company sought to be charged. Smith’s attorney requested that the district court reissue citation. On May 20, 1980 “Matthews Trucking Company” in Beaumont, Texas, was served with process. Smith did not amend his pleadings.

On June 5, 1980 Matthews-Lufkin, Inc., d/b/a Matthews Trucking Company, answered the suit with a general denial and specifically alleged Smith’s cause of action was barred by the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon Supp.1984). Employers Casualty Company intervened on June 30, 1980, seeking recovery of workers’ compensation benefits paid to Smith.

Matthews-Lufkin, Inc. contends the court of appeals erred in holding that: (1) Matthews-Lufkin, Inc., was sued “in a sense” in Smith’s original petition; (2) the statute of limitations was tolled until the insurance claims manager advised plaintiff’s attorney of the correct defendant; (3) the statute of limitations was tolled due to an official error made by the Secretary of State’s office; and (4) the trial court’s judgment was interlocutory because it did not dispose of Employers Casualty Company’s intervention.

This is not a misnomer case in which a plaintiff sued the correct defendant but merely misnamed the defendant. In such a case, service upon the correct defendant would be proper and the defendant would then be under a duty to plead such misnomer and seek abatement. See Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840 (1939); Abilene Independent Telephone & Telegraph Co. v. Williams, 111 Tex. 102, 229 S.W. 847 (1921). There is no business connection or relationship between the two companies in this case, and therefore, Gentry v. Credit Plan Corp., 528 S.W.2d 571 (Tex.1975), and Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975) are not applicable.

In this case, Smith sued the wrong corporate defendant, Matthews Trucking Company, Inc., d/b/a Louisiana-Matthews Trucking Company, Inc. The filing of that suit did not toll the running of the two-year statute of limitations in favor of the correct defendant, Matthews-Lufkin, Inc., d/b/a Matthews Trucking Company. Stokes v. Beaumont, Sour Lake & Western Railway Company, 161 Tex. 240, 339 S.W.2d 877 (1960). The court of appeals erred in holding that Matthews-Lufkin, Inc. was sued in Smith’s original and only petition.

The court of appeals also erred in holding that the statute of limitations was tolled until the insurance claims manager advised Smith’s attorney of the correct defendant. A suit mistakenly filed against the wrong defendant imposes no duty on the correct defendant to intervene and point out plaintiff’s error. Moreover, the rule applies even though the correct defendant may have known of the suit. McDonald v. Miller, 90 Tex. 309, 39 S.W. 89, 95 (1897); Garcia v. Employers Casualty Company, 519 S.W.2d 685, 689 (Tex.Civ.App.—Amarillo 1975, writ ref’d n.r.e.); Astro Sign Company v. Sullivan, 518 S.W.2d 420, 424 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.).

The court of appeals held that the statute of limitations should have been tolled for a reasonable time until the correct defendant was served because of an alleged mistake made by the Secretary of State, Corporate Records Division. This was error. The use of an “official mistake” to avoid the effect of a judgment has only been applied to cover mistakes made by officers of the court or official court functionaries. See Baker v. Goldsmith, 582 S.W.2d 404, 407 (Tex.1979); Petrochemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974); Gracey v. West, 422 S.W.2d 913, 915-16 (Tex.1968); Hanks v. Rosser, 378 S.W.2d 31, 35 (Tex.1964). The Secretary of State is not an officer of the court or an official court functionary. Therefore, we hold that the court of appeals erred in extending the “official mistake” rule to cover a state official who was not an officer of the court.

The court of appeals held that an additional ground for reversal existed because the trial court’s judgment was interlocutory and not final. Because Employers Casualty Company’s intervention for workers’ compensation was not disposed of, the court of appeals held that the trial court’s judgment was a partial summary judgment and not appealable. The order granting summary judgment expressly dismissed “the cause of action of NORRIS E. SMITH and Intervenor, EMPLOYERS CASUALTY COMPANY.” We hold that the court of appeals erred in holding that the trial court’s judgment was interlocutory and not final.

While the trial court judgment was not interlocutory, it erroneously disposed of Employers Casualty Company. In Teer v. Duddlesten, 664 S.W.2d 702 (Tex.1984), we held that the trial court erred in rendering judgment for the City of Bellaire, a party not before the court in the summary judgment proceeding. In this cause, Matthews-Lufkin, Inc. did not name Employers Casualty in its motion for summary judgment and requested no relief as to the intervenor. Although Employers Casualty was not a party to the summary judgment proceedings, its intervention was dismissed by the trial court. In Young v. Hodde, 682 S.W.2d 236 (Tex.1984), we held that the erroneous rendition of a final summary judgment was not fundamental error. In Young and Teer, we considered the erroneous judgment because the error was properly preserved for our review. Employers Casualty has not appealed.

We reverse the judgment of the court of appeals and affirm the judgment of the trial court.


author: RAY, Justice.

text:
    Randle L. AMASON et ux., Petitioners, v. NATURAL GAS PIPELINE COMPANY, Respondent.
    No. C-2929.
    Supreme Court of Texas.
    Dec. 12, 1984.
    Rehearing Denied Jan. 16, 1985.

      McKool & Vassalo, Bill Liebbe, Dallas, for petitioner.
    Vick & Vick, G. Thomas Vick, Jr., Weath-erford, for respondent.
   RAY, Justice.

This is a land condemnation case involving the procedural issue of which party, condemnee or condemnor, bears the burden of going forward to trial to determine whether the condemnor possesses the right to condemn the sought-after land. We hold that when a condemnee properly contests a condemnor’s right to condemn, the con-demnor bears the burden to go forward to trial on that issue. In 1981, the Natural Gas Pipeline Company (Pipeline) sought a permanent easement across property owned by Randle and Ann Amason and the Veterans’ Land Board of the State of Texas (the Amasons) in order to construct a pipeline. Accordingly, Pipeline filed a statement in the district court seeking the condemnation of this property. The district judge then appointed three Special Commissioners who filed an award of $1,250 for the easement. The Amasons, however, contested Pipeline’s right to condemn their property and objected to the amount of the Special Commissioners’ award. After Pipeline waived citation, neither party took any further action with respect to this case.

Almost a year later, the district court dismissed this cause for want of prosecution and upheld the Special Commissioners’ award. Over Pipeline’s objection, the Ama-sons moved to reinstate this cause on the docket, but this motion was denied because the Amasons failed to verify the motion. Tex.R.Civ.P. 93. In an unpublished opinion, Tex.R.Civ.P. 452, the court of appeals affirmed, reasoning that the trial court both properly denied the Amasons’ motion to reinstate and correctly upheld the Special Commissioners’ award. We modify the judgments of the lower courts by dismissing the condemnation proceeding in its entirety, including vacating the Special Commissioners’ award. As modified, the judgments of the lower courts are affirmed.

The question of law presented to this court is whether a condemnor, who is satisfied with the Special Commissioners’ award, still must go forward to trial to prove his right to condemn the sought-after land when the condemnee properly contests this authority. After answering this question, we can determine which party, Pipeline or the Amasons, should suffer the consequences of abandoning this case. On the one hand, Pipeline argues that under the facts of this case, the Amasons bore the burden of going forward to trial and initially placing the case on the trial court docket. On the other hand, the Amasons argue that this was Pipeline’s burden. We agree with the Amasons.

The Texas land condemnation scheme is a two-part procedure involving first, an administrative proceeding, and then if necessary, a judicial proceeding. When a party desires to condemn land for public use but cannot agree on settlement terms with the landowner, that party must file a statement seeking condemnation in the proper court, either district court or county court at law, of the county in which the land is located. Tex.Prop.Code Ann. §§ 21.001; 21.012; 21.013 (Vernon 1984). Upon the filing of this statement, the trial court judge is to appoint three Special Commissioners who assess the damages and then file an award which, in their opinion, reflects the value of the sought-after land. Prop.Code §§ 21.014-21.016. The Special Commissioners’ power, however, is limited to filing in the proper court an award of fair compensation for the condemnation. Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, 846 (Tex.1943); Texas Electric Service Co. v. Faudree, 410 S.W.2d 477, 481 (Tex.Civ.App.—El Paso 1966, writ ref’d n.r.e.); Prop.Code § 21.014. For example, the Special Commissioners are powerless to decide whether the condemnor possesses the right to condemn the property in the first place. From the time the condemnor files the original statement seeking condemnation up to the time of the Special Commissioners’ award, these initial proceedings are administrative in nature. Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 754 (Tex.1959); Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 936-37 (Tex.1958).

Once the Special Commissioners file their award, the condemnor, if satisfied with the award, must either pay the amount of the award to the condemnee or deposit that amount in the court’s registry. Prop.Code § 21.021(a)(1). If the condemnee is disatis-fied with the Special Commissioner’s award, he must timely file his objections in the appropriate court. Prop.Code § 21.-018(a). Upon the filing of objections, the Special Commissioners’ award is vacated and the administrative proceeding converts into a normal pending cause in the court with the condemnor as plaintiff and the condemnee as defendant. Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962); Prop.Code § 21.018(b). While the condemnor becomes the plaintiff for the purpose of proving his right to condemn, the condemnee still must secure the service of citation on the condemnor. Brammer, 361 S.W.2d at 200; Prop.Code § 21.018(b). If the condemnee fails to secure the service of citation on the condemnor within a reasonable period of time, the trial court should dismiss the objections for want of prosecution and should also reinstate the Special Commissioners’ award as the proper compensation for the condemnation of the condemnee’s land. Id. at 200-01. Once the service of citation on the con-demnor is accomplished, however, the Special Commissioners’ award cannot be reinstated.

In support of its argument that the Amasons abandoned this case, Pipeline relies exclusively on State v. Beever Farms, Inc., 549 S.W.2d 223 (Tex.Civ.App.—San Antonio 1977, writ ref’d n.r.e.). We find that this reliance is misplaced. In Beever Farms, the condemnor filed objections to the Special Commissioners’ award. The condemnee, however, was satisfied with the award, so he withdrew the award from the court’s registry. Under Texas law, this withdrawal resulted in a waiver by the condemnee of his right to contest the con-demnor’s power to condemn the property. See State v. Jackson, 388 S.W.2d 924, 925 (Tex.1965). This, then, left only the value of the land for the court’s consideration. See id. at 925-26; Stuart v. Harris County Flood Control District, 537 S.W.2d 352, 354 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). After seven years passed with neither party taking any action with respect to the case, the trial court dismissed the cause for want of prosecution and reinstated the Special Commissioners’ award as the proper compensation for the condemnee’s land. Beever Farms, 549 S.W.2d at 228. In our opinion, Beever Farms must be limited to its facts. We do not find Beever Farms on point because in the case at bar, the Amasons contested the right to condemn, timely objected to the Special Commissioners’ award and have not withdrawn the award from the trial court’s registry.

In Denton County v. Brammer, 361 S.W.2d 198 (Tex.1962), this court considered an unexplained seven-year delay by a condemnee between the timely filing of his objections and the service of citation on the condemnor. In that case, we held that this unexplained delay raised a conclusive presumption that the condemnee abandoned his objections. Consequently, we dismissed the objections for want of prosecution and reinstated the Special Commissioners’ award as the proper compensation for the condemnation of the condemnee’s land. Nonetheless, in Brammer we articulated the legal implications of a con-demnee’s objection to the Special Commissioners’ award when the condemnee also serves citation on the condemnor.

The filing of the original objections ... vacated the award of the special Commissioners. The condemnor ... became the plaintiff and ... the condemnee became the defendant. Although the condemnee ... became the defendant, we construe the [eminent domain] statute ... to mean that the condemnee ... had the burden of causing the issuance of citation and the obtaining of service of such citation upon the condemnor .... While the condemnor ... as plaintiff had the burden of proving all the essentials necessary to show a right to condemnation, [citation omitted] and had the burden of going forward to trial, it was under no legal obligation to do so unless and until it had been served with citation. (Emphasis added.)

361 S.W.2d at 200.

In this case, it is undisputed that the Amasons challenged the right to condemn, timely objected to the Special Commissioners’ award, did not withdraw the award from the court’s registry and obtained a waiver of service of citation from Pipeline. Thus, the Amasons proceeded properly to contest Pipeline’s power to condemn their land, but the trial court failed to consider this matter. Nonetheless, both the lower courts held that the Amasons, by making their objections, bore the responsibility of going forward to trial. We disagree. We hold that the trial court correctly dismissed this case for want of prosecution, but erred in reinstating the Special Commissioners’ award. Consequently, we modify the lower courts’ judgments by entirely dismissing the condemnation proceeding for want of prosecution by Pipeline.


author: WALLACE, Justice.

text:
    Larry Joe COLVIN, Petitioner, v. RED STEEL COMPANY, Respondents.
    No. C-3167.
    Supreme Court of Texas.
    Dec. 12, 1984.

      Jack B. Cowley, Tommy K. Davis, Dallas, for petitioner.
    Russell W. Schell, Dallas, for respondent.
   WALLACE, Justice.

This is a personal injury case based upon allegations of negligence and strict liability. Larry Joe Colvin (Colvin) was an iron-worker employed by D.R. Smith, a steel erection company. Colvin was working on a building being constructed by Robert E. McKee, Inc. (McKee), the general contractor. Red Steel Company (Red Steel) was the fabricator of the steel trusses and pur-lins used in the building. At the close of evidence, the trial court rendered an instructed verdict for McKee and Red Steel. McKee settled during appeal to the court of appeals. The court of appeals affirmed the judgment of the trial court. 671 S.W.2d 556. We affirm the judgment of the court of appeals.

The building in question was constructed with concrete columns to which were attached supporting steel trusses. Steel pur-lins were to be laid along the top of and welded to the trusses. The purlins, used only as spacer material, separated the trusses from the roof. The architect’s specifications required 30 purlins, measuring 49 feet 11¾ inches in length and weighing approximately 660 pounds. Red Steel supplied seven purlins of the specified length but filled the rest of the order with shorter pieces. Although McKee and the architect accepted the shorter pieces which were used in the building, neither one authorized Red Steel to change the length of the purlins.

While atop one of the concrete columns, Colvin was attaching a truss to the column. In an attempt to raise himself to an upright position, he reached overhead and grasped a purlin laying atop another truss already in place. The purlin came off the truss and Colvin fell 16 feet to the concrete floor. The purlin which Colvin grasped was eight feet long and weighed approximately 88 pounds. The issues are whether there is some evidence that Red Steel was negligent in supplying the shorter purlins or whether Red Steel was strictly liable for supplying the shorter purlins.

NEGLIGENCE

To determine whether it was proper for the trial court to instruct a verdict for Red Steel, we must view the evidence in the light most favorable to Colvin. We must indulge against the instruction every inference that properly may be drawn from the evidence, and if the record reflects any testimony of probative force in favor of Colvin, we must hold the instruction improper. White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943).

To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a breach of that duty, proximate cause and damage. Fort Worth & Denver City Ry. Co. v. Rogers, 62 S.W.2d 151 (Tex.Civ.App.—El Paso 1933, writ ref d). The duty Red Steel owed Col-vin was to act as a reasonable prudent person would act under the same or similar circumstances regarding any reasonably foreseeable risk. Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).

Red Steel’s cutting orders, which became part of the contract with McKee, complied with the architect’s specifications requiring the purlins to be 49 feet 11¾ inches in length. There was testimony that it would take two men to move a purlin of the specified length, however, the eight foot purlin was easily moved by Colvin alone. Colvin testified that when the ironworkers worked with the shorter purlins, they had to lay them across two trusses “... so they wouldn’t fall off of or somebody would come and kick them off.” He further testified that, “When we put the short purlins [up], we always laid them down on their side like this where they wouldn’t get kicked over or knocked over and fall off or anything.” Colvin contends there is some evidence that the shorter purlins created a more dangerous condition in the work place than the longer ones. Although the record does not disclose the number, there is evidence that the architect’s plans specify a number of shorter purlins in addition to the 30 longer ones mentioned above.

Colvin’s expert, Mr. Zetterlund, a professional structural engineer, testified that the standards of the Associated General Contractors of America, Inc. require that any steel which is raised in place on a building be secured immediately. Colvin’s Exhibit 44, a portion of a manual on accident prevention published by the Associated General Contractors of America, Inc., states, “In setting steel each piece should be securely bolted before the line is taken off.”

Colvin testified that about a week before the accident occurred, he and a fellow employee were working on the uppermost level of the structure. He further testified that: the two of them received all of the purlins from the crew working on the ground; that they placed the purlins atop the trusses; laid the purlins on their sides, and left them there.

In order for Red Steel to have foreseen the probability of an accident occurring because the purlins were cut in shorter lengths than specified, it must have also foreseen that Colvin and his fellow workers would violate the standards of the Associated General Contractors of America, Inc., by not securing the purlins when they were placed atop the trusses. There is no evidence in the record which will support such finding.

Colvin relies upon Bennett v. Span Industries, Inc., 628 S.W.2d 470 (Tex.Civ.App.—Texarkana 1981, writ ref’d n.r.e.). That case is distinguishable from the present one. Span actually created the opening through which Bennett fell. In the present case, Colvin and his fellow employees created the condition which contributed to Colvin’s fall. In Span, there was evidence that Span knew there would be men working around the openings which it created, that contractors generally provided covers or guard rails for such openings, and that OSHA regulations required either covers or guard rails for those openings. There is no evidence of a similar nature in this case.

Colvin also relies on Texas Industries, Inc. v. Lucas, 634 S.W.2d 748 (Tex.Civ.App.—Houston [14th Dist.] 1982), rev’d on other grounds, — S.W.2d -, 27 Tex.Sup.Ct.J. 491, July 14, 1984. That case is also distinguishable. In Texas Industries, the concrete beam contained inserts which were to be used solely for lifting the beams. There also was evidence that the fabricator of the beams knew that the inserts would be used for lifting the beams and that all of the beams were to contain identically sized inserts. It was foreseeable that if one beam contained a differently sized insert, an accident could occur while the beam was being lifted. In this case, Colvin used the shorter purlin in a manner which was not foreseeable by Red Steel. First, he put it on the truss without attaching it by a tack-weld, and second, he used it to pull himself to an upright position. There is thus no evidence of foreseeability on the part of Red Steel which sustains a finding of proximate cause. Without a finding of proximate cause, no cause of action for negligence exists.

STRICT LIABILITY

An essential element of Colvin’s strict liability cause of action is a finding that the product was not fit for its intended or reasonably foreseeable use at the time it left the manufacturer. The purlins were intended to be welded to the top of the trusses and were to serve as spacers between the trusses and the roof material. The uncontroverted evidence proved that the purlins were fit for the intended purpose of providing a spacer between the trusses and the building roof when they left Red Steel. The question remaining is whether Red Steel reasonably could have foreseen that the purlins would be placed atop the trusses, left there unattached, violating the safety standards of the Associated General Contractors of America, Inc., and then used by a skilled ironworker to pull himself upright. Red Steel could not reasonably have foreseen such a use. The purlins were used for the intended purpose and there is no evidence of any other intended or foreseeable use. The dangerous condition which contributed to Colvin’s fall was created on the jobsite not by Red Steel, but by Colvin, his fellow employees and McKee.

We affirm the judgment of the court of appeals.