text:
    MEDALLION INSURANCE COMPANY et al., Plaintiffs-Respondents, v. Ernest J. WARTENBEE, d/b/a Y Insurance Agency, Defendant-Appellant.
    No. KCD 29635.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.
    Yon Erdmannsdorff, Zimmérman, Gunn & Werner, Max Yon Erdmannsdorff, Kansas City, for defendant-appellant.

      John C. Craft, William C. Jolley, Jr., Kansas City, for plaintiffs-respondents.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Action by Medallion Insurance Company and Missouri General Insurance Company against their agent, Ernest J. Wartenbee, d/b/a Y Insurance Agency, on account and for an accounting; counterclaim (as amended) by defendant for “direct bill” premiums and for actual and punitive damages.

Plaintiffs, through their receiver, voluntarily dismissed the petition and the court sustained a motion to dismiss defendant’s counterclaim and dismissed same “for the reason that Chapter 375 [the Missouri Insurance Code], RSMo 1969 provides the exclusive statutory remedy available to defendant and that the proper venue is in the Circuit Court of Jackson County, Missouri, Division 13.”

Appellant charges the court erred in its order of dismissal on grounds that plaintiffs selected Clay County as the forum for their suit and defendant is thus entitled to have his compulsory counterclaim tried in Clay County; that nothing in Chapter 375, RSMo 1969, required dismissal of the counterclaim, and that the result is a denial of his right to jury trial. The question is whether, in the facts and circumstances, defendant’s recourse against plaintiffs is under the provisions of Chapter 375, RSMo. Affirmed.

On February 20, 1974, plaintiffs filed their suit against defendant in Clay County. Defendant duly answered and counterclaimed and, on January 31, 1977, filed the counterclaim in issue. In the interim, the following transpired: On September 12, 1975, Division 13 of the Jackson County Circuit Court, on petition of the Director, Division of Insurance of Missouri, and after determination that Medallion Insurance Company and Missouri General Insurance Company were insolvent, enjoined those companies from further prosecution of their business and enjoined all persons from prosecuting any action against them, ordered their liquidation, appointed the Director as their receiver, and directed him to liquidate the affairs of the companies and to compromise actions now pending, all as provided in Sections 375.012-375.916, RSMo 1969. On October 21,1975, Division 13 of the Jackson County Circuit Court appointed a commissioner of claims to receive and decide all claims against Medallion Insurance Company and Missouri General Insurance Company.

On February 10, 1977, plaintiffs, through the receiver, entered the voluntary dismissal of the petition in the Clay County Circuit Court; and, on February 22, 1977, the receiver filed the motion to dismiss defendant’s amended counterclaim on the ground that Chapter 375, RSMo., and the Jackson County injunction required such action to be pursued in the receivership proceeding in Jackson County.

On June 20, 1977, the court entered the order of dismissal which gave rise to this appeal.

A plaintiff’s voluntary dismissal of his lawsuit does not operate to dismiss or discontinue a mandatory counterclaim, Rules 55.32(a) and 67.05; and ordinarily the court in which it was filed would remain the forum for its prosecution free from interference by a court of concurrent jurisdiction. See, e. g., Hartvedt v. Harpst, 216 S.W.2d 539 (Mo.App.1948); Stark v. Moffit, 352 S.W.2d 165 (Mo.App.1961); Davis v. Morgan Foundry Co., 224 Mo.App. 162, 23 S.W.2d 231 (1929); Mott Store Co. v. St. Louis & S. F. R. Co., 173 Mo.App. 189, 158 S.W. 108 (1913); Mott Store Co. v. St. Louis & S. F. R. Co., 254 Mo. 654, 163 S.W. 929 (1913); State ex rel. McDowell v. Libby, 238 Mo.App. 36, 175 S.W.2d 171 (1943).

The circumstances of this case are not the ordinary, however, and in the circumstances, defendant’s counterclaim is for hearing only as provided in Chapter 375, RSMo.

The legislature, in enactment of the insurance laws, now Chapter 375, RSMo., “has evidenced an intention to provide an exclusive code for the insurance business, including the course to be followed in the distribution of the assets of a dissolved company among claimants and others entitled thereto, and excluding the application of statutes which might seem * * * to be in conflict with any section of the Insurance Code.” O’Malley v. Prudential Casualty & Surety Co., 230 Mo.App. 935, 80 S.W.2d 896, 897[1] (1935). “It is a valid exercise of the police power [with] intention to regulate the business from beginning to end, thereby protecting individual and public interests.” State ex rel. Missouri State Life Ins. Co. v. Hall, 330 Mo. 1107, 52 S.W.2d 174,177 (banc 1932). Note also the full faith and credit accorded such codes. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488 (1947); Relfe v. Rundle, 103 U.S. 222, 26 L.Ed. 337 (1880).

The Director’s petition for the liquidation of Medallion Insurance Company and Missouri General Insurance Company upon his belief of their insolvency, and the court’s action thereon, are authorized by Section 375.560 RSMo 1969, which provides:

“ * * * the superintendent [now director] may institute a suit or proceedings in the circuit court in the county or city in which the company was organized or in which it has or last had its principal or chief office or place of business or in the county of Cole, to enjoin the company from further prosecution of its business, * * * and * * * the court * * may order the liquidation, settlement and winding up of the affairs of such company * * * as provided in sections 375.-010 to 375.920, together with such other decrees and orders in connection therewith as the court shall deem advisable.” See also Section 375.570, RSMo.

Appointment of a commissioner to decide on claims, limitations on time for presentation of claims, and exclusivity of such proceedings are provided in Section 375.670, RSMo 1969:

“ * * * The court * * * shall limit and may extend the time for the presentation of claims * * * and any creditor neglecting to present his claim within the time so limited shall be debarred of all right to share in the assets of such company. * * * Said court shall appoint * * * commissioners to receive and decide upon the claims presented * *

The propriety of the dismissal ordered by the Clay County Circuit Court in these circumstances is demonstrated by Strubinger v. Mid-Union Indemnity Co., 352 S.W.2d 397 (Mo.App.1961), which held that assets of the insolvent Illinois Casualty Company in possession of the Illinois Department of Insurance under the Illinois liquidation statutes were not subject to garnishment in Missouri. “[P]laintiff was bound by the Order and Judgment of the Illinois Circuit Court, wherein it enjoined and restrained all creditors and other persons having claims against Mid-Union from instituting any suit or proceeding.” 352 S.W.2d 1. c. 410-411. See also Thacher v. H. C. Baldwin Agency, Inc., 283 F.2d 857 (7th Cir. 1960), where the superintendent of insurance of New York, as statutory liquidator of an insolvent insurance company, sued an Indiana agency to recover premiums and other sums due the company. The insolvent had been placed in liquidation in a New York state court action and the New York court enjoined assertion of claims except in the liquidation proceeding. The United States District Court, Southern District of Indiana, held that the New York injunction stayed adjudication of defendant’s counterclaims and set-offs and the Court of Appeals affirmed. To same effect, see Janak v. Allstate Insurance Company, 319 F.Supp. 215 (W.D.Wis.1970). See also Appleman, Insurance Law and Practice, §§ 11001-11104; Moss v. Kansas City Life Ins. Co., 8th Cir., 96 F.2d 108, 114-115.

With respect to the claimed denial of jury trial, suffice to say that defendant was provided with a forum for his claim, and procedural complaints should be presented there.

Judgment affirmed.

All concur.

      . Time for presentation of claims ran, pursuant to order of extension, to December 31, 1977.

      . Respondents represent, and appellant does not deny, that plaintiffs’ attorneys knew of the Jackson County proceedings and specifically the injunction, when defendant’s amended counterclaim was filed January 31, 1977. See Mechanic v. Gruensfelder, 461 S.W.2d 298, 306 (Mo.App.1970).

      . Appellant suggests that he can be termed a creditor “only upon a successful completion of the litigation” in Clay County. Note that “creditor” as used in statute relating to filing claims against insolvent banks is not restricted to include only those to whom money may be owing as a debt in strict sense of terms, but it embraces all those who have a right by law to demand and recover claims on any account whatsoever. First Nat. Bank of Colorado Springs v. Holt, 158 S.W.2d 229, 231 [4] (Mo.App.1942).


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    B_ L_ C_ (K), Appellant, v. W_ W_ C_, Respondent.
    No. KCD 29766.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      F. Keith Brown, Russell, Brown, Bickel & Breckenridge, Nevada, for appellant.
    Edward J. Murphy, Butler, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

This appeal is from an order of modification which transfers permanent custody of the child, G., from the mother to the father. The parties, B.C. [now K.] and W.C., were divorced in November of 1973. The mother was granted permanent custody of the child and $120 per month for her support, later modified to $65 per month. The father then brought the present motion to modify custody on the allegation the immoral conduct of the mother renders her no longer fit. The mother brought a concurrent motion to increase child support.

The mother remarried one D. and some time in early 1977 that marriage became tempestuous. D. drank excessively and practiced physical and vocal abuse upon the wife. This caused emotional upset in the child who lived with them. The mother and D. separated and in February of 1977, they commenced a dissolution proceeding. About that time, according to the mother, she was befriended by K. [her present husband] who offered his protection against the continued threats by D. She admitted that she shared his quarters with him on several occasions and had the use of them a few times when he was away from the city, but denied any intimacy with him. The dissolution of the marriage with D. was adjudicated the following month — in March of 1977.

In early February of 1977, J.C., paternal grandfather of the child G., became disturbed by what he discerned as an emotional upset in his granddaughter and by her remark that she “didn’t have a bed to sleep in.” She ordinarily slept with her mother, “but some man had came [sic] and she had to sleep on the couch.” The grandfather undertook personal surveillance of the K. residence — morning and night — which he meticulously recorded. He observed the mother and G. arrive at the K. residency in the afternoon by taxicab and leave by the same means the next morning. Then K. himself came out from the dwelling. These events were repeated for several days and intermittently thereafter.

The concern of the grandfather was such that he requested the Division of Family Services to investigate the homelife of the child and her emotional and physical states. The case worker — after interviews with the parents, V.C. [the new wife of the father of the child], babysitters and those others with opportunity to observe the child — concluded that G. had been subjected to emotional abuse. The child, then five years of age, although of normal intelligence, had scored very low on the kindergarten placement test and had made little progress throughout the school year. The case worker reported that services had been offered to the mother and child but that the mother had not responded.

The juvenile officer had also investigated the complaint at the instance of father and grandfather. The child told him that “she was at another house besides where she lived and that she slept on the couch and a man, she said ‘G.,’ and her mother slept in the other room.”

At the conclusion of the evidence the court entered judgment which denied the motion of the father for change of custody and sustained the concurrent motion of the mother to modify the child support payments and increased that award from $65 per month to $100 per month. The judgment was accompanied by a memorandum — in the nature of findings and by way of explanation. The memorandum recited, among other things, that although the conduct of the mother was “at best indiscreet, at the worst immoral,” there was no evidence the child saw the mother in any unseemly intimacy. The memorandum noted that the emotional upset she suffered was attributable, not to the conduct of the mother with K., but to the turmoil with husband D. and to the present custody dispute. The memorandum concluded that the child was well kept by the mother, was progressing well in schoolwork and, that the circumstances did not justify that the child be uprooted.

Two weeks later, the trial court on its own initiative, set aside the judgment, ordered an investigation on the custodial arrangements for the child under § 452.390, and reopened the case to receive the report and any other evidence the parties chose to offer. The court gave as cause that: “I am not satisfied with my [previous] order.”

The investigation was made and the report received in evidence. The parties offered no further proof. The substance of the report disclosed that the mother and K., married since the original judgment, had established residence nearby in Kansas, where the family has lived comfortably and contentedly. The child was reported in a stable home environment, emotionally and physically, doing well in school and otherwise happy and adjusted.

The court entered a new judgment which sustained the motion to modify and ordered that the permanent custody of the child be transferred from the mother to father. The mother was accorded regular periods of visitation as well as extended periods of temporary custody during the summer school vacation time. The father was relieved of liability for child support payments except during the period of extended summer visitations.

On this appeal the mother contends the order for change of custody was an abuse of discretion in that no evidence was before the court subsequent to the first entry of judgment which contradicted the findings and reasons given for that rendition. The mother contends also that, in any event, there was no substantial evidence to support the modification of custody.

The argument rests on the erroneous assumption that each entry of judgment was a final adjudication so that the subsequent judgment cannot stand without separate evidence of change of circumstance for support. A judgment vacated by a trial judge within the propriety of Rule 75.01 loses all efficacy as an adjudication. That rule provides:

The trial court retains control over judgments during the 30 day period after entry of judgment and may vacate, reopen, correct, amend or modify its judgment for good cause within that time. . [Emphasis added]

In this instance, the trial court, within thirty days of rendition, expressed dissatisfaction with his decision and determined to “re-open the case and order an independent investigation.” The effect of such an order, when made timely and on good cause, is to restore control of the full proceedings to the trial court until that exercise of jurisdiction culminates in a final and appealable order. In re Marriage of Richardson, 540 S.W.2d 227, 229[5] (Mo.App.1976).

In circumstances when a court has the solemn duty to decide the custody of a child, it serves the ends of justice for a tribunal, beset by doubt as to the true evidence — as in this case — to reopen the proceedings for independent proof and further opportunity to the parties for testimony. Although the good cause element of Rule 75.01 does not allow precise definition, it obviously intends a remedial purpose and is applied with discretion to prevent a manifest injustice or to avoid a threatened one. Vaughn v. Ripley, 416 S.W.2d 226, 227[l-4] (Mo.App.1967); Kallash v. Kuelker, 347 S.W.2d 467, 471[4] (Mo.App.1961); Tucker v. St. Louis Life Ins. Co., 63 Mo. 588, 593 (1876). Accordingly, the order of the court to set aside the first judgment for the investigative report as a basis for a more informed award of custody was on good cause and restored control of the full proceedings to the trial court.

The contention that the final judgment to transfer custody from the mother to the father was without support of substantial evidence is not tenable. It is to be acknowledged that the investigative report done by order of the court found the child restored to a normal emotional and physical state and that the mother and K., her third husband, had established a desirable domestic environment for the upbringing of the child. It is to be acknowledged also that the retarded learning of the child and her agitated condition were coincident with the strife between her mother and husband D. and improved to normal once that condition was relieved. In short, the evidence available to the court after the case was reopened, if anything, enhanced the claim of the mother to restoration of fitness for custody of the daughter. Nevertheless, the trial court was entitled to consider all the evidence on that issue — and that included the flagrant and repeated misconduct of the mother with K. in the presence of the child. It was that episode which the trial judge described as “very serious indeed” when he rendered the first judgment and, from what appears, the possible recurrence of such conduct was the consideration which prompted the investigation and report.

The choices open to the court were in any event imperfect. The mother now barely twenty-seven years of age has now been remarried for the third time as has her third husband. The father [presumably of comparable age] has now also been married for the third time to a woman previously married. There have been children born to each of these marriages for which the latest spouse has either the duty of support or the actual custody. Neither parent has demonstrated the capacity for the enduring family relationship in which a growing child flourishes.

We understand the judgment to transfer the custody from the mother to the father as the reluctance of the trial court to further burden the welfare of the child by placement with a parent whose conduct has been so irresponsible in that regard. That determination was for the trial court in the first instance. It rests on substantial evidence and we are bound to affirm that judgment. Murphy v. Garron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

All concur.

      . There was no objection that the investigative report was not evidence. We are not to be understood to hold that such a report has the effect of substantive evidence in the absence of a stipulation to that effect or proof by witnesses in the ordinary manner.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri ex rel. B_ C_ C_, a juvenile, Plaintiff-Relator, v. The Honorable Frank CONLEY, Juvenile Court Judge, 13th Judicial Circuit, Defendant-Respondent.
    No. KCD 30058.
    Missouri Court of Appeals, Kansas City District.
    July 3, 1978.

      Harry D. Boul, Columbia, for plaintiff-relator.
    Lynn E. Umstead, Legal Counsel to Juvenile Court, 13th Judicial Circuit of Missouri, Columbia, for defendant-respondent.
    Before WASSERSTROM, P. J., SWOF-FORD, C. J., and SHANGLER, DIXON, PRITCHARD, SOMERVILLE and TUR-NAGE, JJ.
   SOMERVILLE, Judge.

Respondent judge’s refusal to honor relator’s written application for change of judge in a juvenile proceeding prompted this court to issue its provisional rule in prohibition. This court’s present obligation to either quash or make absolute its provisional rule in prohibition is responsible for eliciting the following procedural events antedating relator’s application for change of judge.

On October 19,1970, relator was found to be within the jurisdiction of the Juvenile Court of Boone County, Missouri, by reason that the “behavior, environment and associations of the juvenile were injurious to his welfare.” Sec. 211.031(l)(c), RSMo 1969 (now Sec. 211.031, subd. l(l)(c), RSMo Supp. 1976). Relator was made a ward of the court on the same date and remanded to the custody of his natural parents under the supervision of the juvenile officer pursuant to Sec. 211.181(1), RSMo 1969 (now Sec. 211.181(1), RSMo Supp.1974). Although relator was sent on several subsequent occasions to various agencies for evaluation, he was eventually released after each occasion to the custody of his natural mother under the supervision of the Juvenile Officer of Boone County. On November 1, 1977, the Deputy Juvenile Officer of Boone County filed a motion to modify the last order involving disposition of relator on the ground that relator had since perpetrated certain specified felonies thereby calling for a different disposition, namely, commitment of relator to the custody of the division of youth services for confinement in the state training school for boys at Boonville, Missouri. On November 14,1977, a future date was selected for hearing the deputy juvenile officer’s motion to modify. On November 15, 1977, the controversial application for change of judge was filed by relator.

This court, when called upon to decide whether its provisional rule in prohibition should be quashed or made absolute, is immediately confronted with widely divergent points of view. In a broad sense, this diversity orbits around the timeliness or untimeliness of relator’s application for change of judge. But in a narrow sense, it orbits around the deputy juvenile officer’s motion to modify as being a “civil action” within the contemplation of Rule 51.05. Relator contends the matter presently pending before respondent judge is a “civil action” within the meaning and purview of Rule 51.05; therefore, his application for change of judge was timely filed and this court’s provisional rule in prohibition should be made absolute. Respondent judge contends with equal vigor that disposition of the matter presently pending before him involves a continuing exercise of supervisory authority over relator pursuant to the order of October 1, 1970, finding relator to be within the jurisdiction of the Juvenile Court of Boone County, Missouri; therefore, relator’s application for change of judge, filed some seven (7) years after October 1, 1970, was not timely filed and this court’s provisional rule in prohibition should be quashed.

Rule 126.01, inter alia, provides as follows:

“A change of judge of the juvenile court shall be ordered:
2. Upon application of an interested party under Rule 51.05; . . . .”

Rule 51.05, so far as here relevant, provides as follows:

“(a) A change of judge shall be ordered in any civil action upon the filing of a written application therefor by any party or by his agent or attorney. The application need not allege or prove any cause for such change of judge and need not be verified.
(b) The application must be filed at least thirty days before the trial date or within five days after a trial setting date has been made, whichever date is later, . . ..
“(e) Upon the presentation of a timely application for change of judge, the judge shall promptly sustain the application

It stands undisputed that relator’s application for change of judge met with Rule 51.05’s minimal requirements as to form, and that it was filed within five (5) days after a “trial setting date” was ordered which is the “later” date within the meaning of Rule 51.05(b), supra. Stripped to bare essentials, the only remaining issue before this court is whether the deputy juvenile officer’s motion to modify is a “civil action” within the contemplation of Rule 51.05. If it is, relator’s application for change of judge was timely filed. If it is not, relator’s application for change of judge was not timely filed.

Hayes v. Hayes, 368 Mo. 583, 252 S.W.2d 323 (1952), wherein a change of venue was sought to effect a change of judge in a proceeding to modify a divorce decree, and State ex rel. Brault v. Kyser, 562 S.W.2d 172 (Mo.App.1978), wherein a change of judge was sought in a proceeding to terminate parental rights under Sec. 211.441, RSMo 1969, exhaustively explored the meaning of “civil suit” in the context presently under consideration. Notwithstanding certain nuances due to the different type of proceedings involved, the ultimate holdings in Hayes and Brault emphasize that “civil action”, a consistently used term, is not to be-miserly construed when dealing with appropriate statutes and rules for effecting a change of judge. More particularly, Hayes, 363 Mo. 583, 252 S.W.2d at 327, teaches that something less than a “new suit” or an “original action” qualifies as a “civil action” and that the real test is whether it is the “kind of independent proceeding which does in fact adjudicate rights of individuals, irrespective of and not conditional upon what is provided in the original decree.” Brault, 562 S.W.2d at 174, similarly teaches that any judicial proceeding which raises “a new issue” and which seeks “distinctly different relief” from that which was previously before the court constitutes a “civil action” as the term is used in Rule 51.05, supra. The consummate test appears to be rooted in basic and fundamental concepts of right and fairness.

Speaking in broad generalities, the juvenile proceeding presently pending before respondent judge appears to meet all the requisites laid down in Hayes and Brault of a “civil action” falling within the intendment of Rule 51.05, supra. Speaking in more restrictive terms, the juvenile proceeding at hand possesses certain individual characteristics which even more convincingly demonstrate its status as a “civil action” within the prescription of Rule 51.05. Sec. 211.211, RSMo 1969, prohibits relator’s commitment to the division of youth services for internment in the state training school for boys at Boonville absent being afforded “the opportunity to have and be represented by counsel at a hearing held for that purpose ”. (Emphasis added.) Once a juvenile is committed to and received by the division of youth services for internment in the state training school for boys at Boon-ville, the committing juvenile court loses jurisdiction over the juvenile unless jurisdiction is returned to it in an appropriate proceeding. Sec. 211.041, RSMo 1969; and In re A_ N_, 500 S.W.2d 284, 287-88 (Mo.App.1973). A disposition of juveniles under Sec. 211.181, RSMo Supp.1974, by way of committing them to the division of youth services is restricted to juveniles who have been adjudicated pursuant to the provisions of subdivision (2) of Sec. 211.031, RSMo Supp.1976, or who have been found to have behavior injurious to their welfare or to the welfare of others. Sec. 219.021, RSMo Supp.1975. These statutes bespeak of legislative recognition of the existence of vast differences between juvenile proceedings which seek the treatment and reformation of offending juveniles under the auspices of a benevolent juvenile judge in a paternalistic atmosphere vis-a-vis the treatment and reformation of offending juveniles in an institutional atmosphere such as that of a state training school. The latter possesses far more serious implications and potential for impinging upon the basic liberties and freedoms of juveniles than does the former.

Hayes v. Hayes, supra, and State ex rel. Brault v. Kyser, supra, and the corroborative statutory provisions heretofore specifically mentioned, collectively viewed, strongly auger in favor of construing the juvenile proceeding pending before respondent judge as being a “civil action” for purposes of the application of Rule 51.05, supra. The only argument advanced by respondent judge in opposition to doing so is one ostensibly rooted in public policy. Essentially, he argues that an infinite panoply of intrinsic benefits arise from continued supervision of an offending juvenile by the same judge which far outweigh any deprivation of a juvenile’s right to have a proceeding profoundly affecting his liberty and freedom adjudicated by a judge who is impartial both in fact as well as in the mind of the juvenile. Judicial determination of when a pending juvenile proceeding falls within the realm of a “civil action” as used in Rule 51.05, supra, should not be relegated solely to esoteric, theoretical considerations that the lofty, reformative and regenerative purposes of the Juvenile Code can only be achieved by jealously centering jurisdiction in a single judge for all purposes, even at the risk and expense of infringing upon certain basic rights otherwise recognized and afforded to adults. Notwithstanding its unique jurisdiction, a juvenile court remains first and foremost a court of justice. The term “civil action” as used in Rule 51.05, supra, is made applicable via Rule 126.01, supra, to juvenile courts because they are courts of justice, not because they are courts of limited jurisdiction. To deny juveniles the right to a change of judge on the flimsy theory that the continuity achieved by a single judge presiding over their welfare so overwhelmingly inures to their benefit that all other valid considerations should be excluded is a hollow argument which makes a mockery and a farce of the fundamental right to have matters affecting one’s liberty and freedom adjudicated by an impartial judge. The narrow construction of “civil action” sought by respondent judge would defeat rather than achieve the avowed purpose of Rule 51.05, supra, — to give every party, juvenile and adult alike, a virtually unfettered right on one occasion to unilaterally disqualify a judge who is subjectively sensed to be partial, prejudiced or lacking in objectivity, as well as one who is demonstrably partial, prejudiced or lacking in objectivity. Affirmation of this right on behalf of juveniles leaves no choice but to construe the juvenile proceeding pending before respondent judge to be a “civil action” within the contemplation of Rule 51.05, supra. Perforce, relator’s application for change of judge was timely filed.

This court’s provisional rule in prohibition is made absolute and respondent judge is prohibited from taking any further action in the juvenile proceeding now pending before him involving relator except to enter an appropriate order disqualifying himself, and concurrently to take appropriate steps pursuant to Rule 51.05(e)(2) to obtain another judge.

Provisional rule in prohibition made absolute.

All concur.

      . An order dated September 2, 1975, returning relator to the custody of his natural mother under the supervision of the Juvenile Officer of Boone County.

      . The following “Committee Note” is appended to present Rule 51.05: “The following application would be sufficient: ‘(Caption) Plaintiff requests a change of judge. (Signature and address of attorney or party).’ ”


author: HARBISON, Justice.

text:
    SERODINO, INC., Appellant-Plaintiff, v. Jayne Ann WOODS, Commissioner of Revenue, State of Tennessee, Appellee-Defendant.
    Supreme Court of Tennessee.
    July 17, 1978.

      Roger W. Dickson, Carl E. Hartley, Sto-phel, Caldwell & Heggie, Chattanooga, for appellant-plaintiff.
    Jimmy G. Creecy, Asst. Atty. Gen., Nashville, for appellee-defendant; Brooks McLe-more, Jr., Atty. Gen., of counsel.
   OPINION

HARBISON, Justice.

In this case appellant seeks recovery of Tennessee sales and use taxes paid under protest. The Chancellor dismissed the suit, holding that the transactions out of which it arose were taxable. We affirm that decision.

The taxpayer is a Tennessee corporation engaged in business activities in and near the navigable waterways of this and other states. Its principal offices are in Chattanooga, but it maintains extensive facilities for dry-docking, repair and launching of river barges and other vessels at a shipyard on the Tennessee River at Hale’s Bar, near Guild, Tennessee. The present case involves the taxability of materials and services furnished by the taxpayer to others in the repair and renewal of barges at this facility.

Although it owns and operates its own barges and towboats, appellant does extensive work for other companies operating river barges into and out of the Chattanooga port area. It makes a distinction between the repair of damaged barges, which consists principally of patching tom or leaking areas, and the renewal of barges, which may involve the removal and replacement of substantial portions of the steel framework and other structural components. If a barge is damaged above the water line, repair or renewal may occur while the barge is in the water; if damage extends below the water line, it is usually necessary to place the vessel in dry dock, perform the requisite work, and re-launch the barge. The taxpayer bills its customers separately for dry-dock and launching services. It protests the taxing of these services by the Commissioner as well as the taxation of its repair services and parts.

The audit report for the tax years in question reveals that taxpayer performed services for some thirty-five to forty different companies. The president of appellant, Mr. Serodino, testified that to the best of his knowledge all of the barges upon which work was performed were used in interstate river transportation. Officials of two of the larger customers of taxpayer testified at the trial, but, other than the general statement by Mr. Serodino, there is no evidence as to the operating authority or nature of the business of any of the other customers whose barges were serviced at the Hale’s Bar facility. Although the facts are not clearly established, we will assume that all of them were interstate carriers and that their barges were engaged in interstate transit immediately before being consigned to the taxpayer’s shipyard.

There is no question in this case of multiple taxation, and no insistence that any state other than Tennessee has attempted to tax the transactions involved. No discrimination in theory or in practice between interstate and intrastate transactions has been shown, nor is there any testimony indicating that the Tennessee use and sales taxes at issue should or could reasonably be apportioned to any other state or taxing authority.

The taxpayer asserts that the sales and use taxes are improperly levied upon its repair and renewal services on a number of different theories.

In its first assignment of error the taxpayer contends that its sales and services are exempt under an administrative rule issued by the Department of Revenue, as follows:

“A common carrier shall pay the Sales or Use Tax on all tangible personal property or taxable services which it buys or uses in this State, except rolling stock, aircraft, or floating equipment which enters the State in actual use in interstate commerce at the time of entering, and is continuously used in interstate commerce thereafter. This exception shall not apply to such equipment which is localized for use within the State.”

To sustain its position, the taxpayer insists that the barges themselves, which are floating equipment, are also “common carriers,” and as such are entitled to exemption under the rule. That is, they are the actual “carriers” of interstate cargoes.

The barges, of course, are not “common carriers” although they may be owned and operated by companies which are so engaged. The barges themselves do not buy or use equipment; their oyraers or operators do so. Further, we have serious doubt that the barges, at least for sales tax purposes, are “continuously used in interstate commerce” while they are withdrawn from use and are undergoing renewal or repair in the shipyard or dry dock. The record shows that a barge may remain at Hale’s Bar for periods of time ranging from a portion of one day to several weeks, depending upon the nature and extent of the work to be done and the availability of parts.

We do not understand that taxpayer contends that it is a “common carrier”, insofar as its shipyard repair services for other companies are concerned. Taxpayer’s interpretation of this administrative rule is, in our opinion unnatural and certainly contrary to the interpretation which has been given to it by the Department, exempting only the purchase of rolling stock, aircraft, or floating equipment by common carriers under very limited circumstances. The rule is not a model of clarity, but we do not believe that it can fairly or reasonably be said to exempt repair or renewal services such as are involved here.

One of the principal contentions of the taxpayer is that its services are an integral part of interstate commerce and are exempt from the state taxation at issue both under the Commerce Clause of the United States Constitution and under T.C.A. § 67-3007, which exempts “bona fide interstate commerce.”

Upon the facts of this case we find untenable the taxpayer’s argument that its shipyard activities are beyond the taxing authority of this State. Tennessee sales and use taxes are imposed to the fullest constitutional extent of the State’s taxing power. Texas Eastern Transmission Corp. v. Benson, 480 S.W.2d 905 (Tenn.1972). The taxes are levied upon the privilege of selling at retail, using or consuming tangible personal property in the state and the performing of repair services to such property. See T.C.A. §§ 67-3002, 3003. The incidence of the sales tax is upon the seller, not upon the purchaser. Central Transport Co. v. Atkins, 202 Tenn. 512, 517, 305 S.W.2d 940 (1956).

We find unpersuasive the taxpayer’s contention that the barges “do not come to rest” in Tennessee while they are undergoing renewal or repair. The evidence does not support its claim that there is an insufficient nexus between Tennessee and the subject transactions to justify the imposition of a local sales or use tax. Not only is the taxpayer a Tennessee corporation, but all of the services are performed and all of the parts are sold by it in the state. Some of the parts are kept in inventory. Others have to be ordered to specifications from manufacturers in Chattanooga or in Birmingham. However, the actual sale or use of all of the parts by the taxpayer occurs at its Hale’s Bar facilities.

The fact that the barges will be placed back into interstate commerce and will be used by their respective owners outside of Tennessee does not prevent the imposition of the tax at the place and time when the taxpayer’s services and repairs are performed. See Williams Rental, Inc. v. Tidwell, 516 S.W.2d 614 (Tenn.1974); Central Transport Co. v. Atkins, 202 Tenn. 512, 305 S.W.2d 940 (1956). None of the factors involving a burden upon, discrimination against or improper regulation of interstate commerce which might bring the tax into conflict with constitutional limitations are shown in this record. See Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), reh. denied, 430 U.S. 976, 97 S.Ct. 1669, 42 L.Ed.2d 371 (1977); see also Denver & Rio Grande Western R.R. v. State Tax Commission, 11 Utah 2d 301, 358 P.2d 352 (1961), cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961)(state sales tax on repair of railway locomotives and freight cars).

Taxpayer places great reliance upon the cases of Service Merchandise Co. v. Tidwell, 529 S.W.2d 215 (Tenn.1975) and Texas Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137 (1969). The facts of those cases are so entirely different from those presented here that we do not find that either supports the taxpayer’s position. Certainly the temporary interruption in transit involved in Service Merchandise is not analogous to the planned withdrawal of the barges here, where they first must be unloaded and then consigned to a shipyard for an indefinite period.

As an alternative theory, taxpayer asserts that its services in the renewal of barges are non-taxable under the provisions of T.C.A. § 67-3012, exempting sales and transfers by Tennessee dealers of vessels or barges exceeding fifty tons displacement

“. . . where the purchaser gives the seller an affidavit that such vessels are being purchased for use in interstate commerce or outside the State of Tennessee; and any such vessel shall also be exempt from use tax so long as it is being used in interstate commerce.”

There is no sale or transfer of the vessels involved in the present case. There is insufficient evidence to sustain the taxpayer’s argument that renewal of a damaged barge is “in reality” equivalent to a sale. Further there is no evidence that exemption certificates or affidavits are utilized in the placing of orders for renewal. The record shows that this exemption has been granted for towboats built and sold by the taxpayer, but in our opinion the transactions at issue here do not fall within the terms of this statute. Likewise the evidence does not sustain the taxpayer’s claim that parts ordered for renewal work are imported into Tennessee or are produced and manufactured in this state for export, so as to be exempt under T.C.A. § 67-3007. Those parts are received and installed by the taxpayer’s employees at its Tennessee facilities, pursuant to contracts made there.

In oral argument counsel for the taxpayer practically conceded that if its repair and renewal services are taxable, then the service charges foi ary-docking and launching are also subject to being taxed. In our opinion these fall clearly within the purview of T.C.A. § 67-3002(c)4(4) and the regulations issued thereunder.

The assignments or error are overruled and the judgment of the Chancellor is affirmed at the cost of appellant.

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

      . It is apparently conceded that if any of the serviced units were engaged only in intrastate commerce, appellant’s repair services on those units would be taxable.

      . U.S. Constitution, Article 1, Sec. 8, clause 3.


author: GODDARD, Judge.

text:
    MADDEN ENGINEERING CORPORATION et al. v. MAJOR TUBE CORPORATION et al. RJR Archer, Inc., Cross-Defendant, Appellant, Nassau Trust Co., Cross-Plaintiff, Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 28, 1977.
    Rehearing Denied Feb. 14, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.

      N. R. Coleman, Jr., Greeneville, for appellants.
    Harold B. Stone, Anna P. Hinds, Knoxville, for appellees.
   OPINION

GODDARD, Judge.

RJR Archer, Inc., Cross-Defendant, Appellant, appeals a judgment in the sum of $78,200.20 rendered against it in favor of Nassau Trust Company, Cross-Plaintiff, Ap-pellee, upon the Chancellor’s finding that Archer failed to honor an assignment executed by Major Tube Corporation in favor of Nassau.

Archer insists that the Trial Court erred in not allowing it certain credits and setoffs against the assignor, Major Tube, and that the Chancellor’s findings on a prior hearing involving exceptions to a master’s report, stating the account between Archer and Major Tube, are conclusive as to Nassau which did not appeal from this determination.

The material facts are practically undisputed. In August 1971 Archer, which manufactures foil and paper products, entered into an agreement with Major Tube whereby Major Tube agreed to furnish all of Archer’s needs for paper cores used in Archer’s business, and Archer agreed to purchase all of its requirements from Major Tube. The agreement also provided that Major Tube would sublease at a stated rental a portion of a building under lease to Archer.

In January 1972 Major Tube borrowed $100,000 from Nassau and in May an additional $25,000. Major Tube assigned the proceeds of its contract with Archer as security for both loans and the security interest of Nassau was properly perfected. Pri- or to making the first loan Nassau advised Archer that it had secured an assignment. Archer responded by acknowledging receipt of the letter, accepting the assignment, and advising Nassau that there were no setoffs or credits against the contract as of January 28.

Major Tube was never able to supply all the needs of Archer, although Archer, as we understand the record, did purchase all the cores that Major Tube was able to manufacture. In regard to the purchase of the tubes, on July 17 Major Tube and Archer modified their agreement to permit Archer to purchase tubes elsewhere, thereby ratifying a practice which Archer had pursued since the inception of the contract. Also, about the latter part of July Major Tube’s financial difficulties prevented it from being able to purchase core paper on credit and Archer agreed to purchase the paper, store it on its premises, and deliver it to Major Tube as required. Archer then deducted the cost of paper from the invoice and forwarded the balance, in accordance with the assignment, to the New York office of Major Tube by check payable to Major Tube and Nassau.

The problem was solved only temporarily, and as Major Tube’s financial situation deteriorated suits began to be filed by its creditors, some attempting to assert liens as to the real estate. On August 25 Archer cancelled the contract with Major Tube and thereafter dealt with it on a day-to-day basis until Major Tube finally ceased operation on November 17. During this period of time Archer deducted rent at the same rate provided for in the original contract from the payments due Major Tube.

Nassau, according to its senior vice president, Samuel Mitchell, had no knowledge of the modifications of the contract, nor of Major Tube’s financial distress until about October when Nassau agreed, at the request of Major Tube and Archer, that certain of the assigned funds might be withheld and used to pay Major Tube’s payroll.

These original consolidated suits were filed by certain creditors of Major Tube, and still other creditors intervened. Nassau Trust, a party defendant in one case, filed a cross-complaint against Archer to recover the balance owing on its loans.

At the request of Archer a special master was appointed to make and state an account as between Archer and Major Tube. The special master’s report was filed on the 18th day of January 1974, and a number of exceptions were taken by the parties, including Nassau, which principally contended that the special master ignored its assignment in stating the account, and Archer, which complained that he improperly disallowed certain additional credits to which it was entitled.

A hearing was held on the exceptions and the Court thereafter sustained certain of Archer’s exceptions and overruled all others. His order pursuant thereto recited that the special master’s report was moot insofar as Nassau’s exceptions were concerned, because the Chancellor felt constrained to dismiss Nassau’s cross-complaint under the provisions of T.C.A. 48-1106 which, as to non-resident corporations not qualified to do business in Tennessee, and their assignees, denies access to Tennessee courts.

Nassau appealed and this Court, in an opinion entered on August 1, 1975, found that Archer had waived this defense by raising it too late, and remanded the case for disposition of Nassau’s claim.

It does not appear that any further hearing was had and the Chancellor, taking the whole record, including pleadings, affidavits, and the testimony introduced at the exceptions hearing, rendered a judgment against Archer for the balance of the one hundred thousand dollar note (the $25,000 note had been paid by certain assets of Major Tube sold under court direction). In doing so the Court reasoned thusly:

The Nassau Bank loaned substantial sums to the Major Tube Corporation which assigned all proceeds of a contract extant between it and Archer to the Bank as security for the loans. Tube also delivered properly executed and recorded financing statements to Nassau as additional security.
R. J. Archer, Inc. expressly consented to the assignment.
Tube fell upon bad days, was unable to deliver paper cores to Archer which purchased cores elsewhere and charged them to Tube, and thereby diluted payments under the contract. Archer also paid various sums to various clerks pursuant to garnishment; Archer handled these garnishments sloppily; it answered some garnishments, failed to answer one, never pleaded the contract and assignment thereof, and obviously is liable to Nassau for the amounts thereof.
It may be stated generally that Archer essentially ignored the assignment after accepting and consenting to it, and is liable to Nassau for all “proceeds due thereunder,” with interest from June 1974.

A proper beginning of our discussion would be the master’s report, as amended by the Chancellor, which neither party seriously questions insofar as it states the account between Archer and Major Tube. The parties do, however, disagree as to whether Nassau is bound by the statement of account, as Archer insists, or whether Archer is not entitled to certain credits as against Nassau, though proper as to Major Tube, as Nassau insists.

MASTER'S REPORT AS AMENDED

Total Invoices $129,211.85

Less price increase not agreed to by Archer 9,325.87 $119,885.98

Credits

Cash payments $23,457.50

Rejected cores 2,201.92

Discounts 1.164.11

Rent 1.176.12

Core paper 77,541.72

Cartons improperly charged to Archer 1,275.00

Payments to court 11,316.42

Other deductions 124.55

Balance due Major Tube $118,257.34 $ 1,628.64

The parties also agree that the controlling statute is T.C.A. 47-9-318, which provides as follows:

Defenses against assignee — Modification of contract after notification of assignment — Term prohibiting assignment ineffective — Identification and proof of assignment. — (1) Unless an account debt- or has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in § 47-9-206 the rights of an assignee are subject to
(a) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; and
(b) any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives notification of the assignment.
(2) So far as the right to payment under an assigned contract right has not already become an account, and notwithstanding notification of the assignment, any modification of or substitution for the contract made in good faith and in accordance with reasonable commercial standards is effective against an assignee unless the account debtor has otherwise agreed but the assignee acquires corresponding rights under the modified or substituted contract. The assignment may provide that such modification or substitution is a breach by the assignor.
(3) The account debtor is authorized to pay the assignor until the account debtor receives notification that the account has been assigned and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the account debtor, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the account debtor may pay the assignor.
(4) A term in any contract between an account debtor and an assignor which prohibits assignment of an account or contract right to which they are parties is ineffective.

Addressing Nassau’s contentions, it first insists that the language of subsection (2) “unless the account debtor has otherwise agreed,” makes the modification of the contract ineffective as to it, and that Archer, as found by the Chancellor, made a direct promise to Nassau which, under the authority of Commerce Union Bank v. Blalock, 38 Tenn.App. 260, 273 S.W.2d 487 (1954), would not entitle Archer to the credits claimed. In the first place the Chancellor did not find a direct promise, unless it can be said to be implied from his order allowing recovery. In our view, the documents executed, including the acceptance, a superfluous act in view of subsection (4), are nothing more than an ordinary assignment, merely transferring the obligee’s rights to the assignee. We cannot and do not construe this letter, or any other acts on the part of Archer, as a direct promise to pay, nor do we find it estopped to deny its liability. In regard to estoppel, which requires a showing of prejudice, it is clear that the paper purchase, the major item of setoff, did not prejudice Nassau, but rather benefited it by enabling Major Tube to continue operation and make payments in August and September, which it would not otherwise have been able to do.

Commerce Union, in our view, is distinguishable from the case at bar. In that case the debtor “induced the bank to make the loan by representing that the work had been done and more than $13,000 would be paid therefor, and by promising that whatever was paid to Kerby Saunders would in turn be paid by it to the bank under the assignment.” The Court went on to find that the debtor was liable on its promise to the bank and also was estopped by reason of its representation to deny its liability.

Turning now to Archer’s first contention, we cannot agree that Nassau would be bound by the account stated between Major Tube and Archer, but rather, are of the opinion there can be items which would be a proper setoff against the creditor, which would be improper as to the assignee of the creditor. For example, under subsection (l)(b) a setoff unrelated to the account, though proper in an accounting between the creditor and debtor, is not proper as to an assignee when the debtor has notice of the assignment. Moreover, as above noted and as also noted by the Chancellor upon his initial ruling that Nassau could not maintain the action, the question of the accounting became moot.

We accordingly conclude that Nassau is not bound by the accounting, and that we should examine the credits allowed in light of the code section to resolve the remaining points in dispute, principally the credits allowed for the purchase of paper, for rental deductions and for payments made to court.

As to the purchase of core paper, it is undisputed that had Archer not purchased the paper Major Tube would have gone out of business the latter part of July rather than in November, and that it was absolutely necessary for them to have the raw material to be able to operate. Consequently, we find that this was a commer-daily reasonable modification of the contract as contemplated by subsection (2) and should be credited against any amount owed Nassau.

We are of the same opinion as to the rent deductions which also enabled Major Tube to continue in business.

The payments to court, two of which were in response to garnishments from the Sessions Court, one from a suit pending in Circuit Court, and the fourth an attachment issued in one of these consolidated cases, stand on a different basis. The debts, as we understand the record, did not arise out of the assigned contract and, in our view, their payment cannot be said to be a proper modification under subsection (2). Additionally, it does not appear that Archer made any effort to protect Nassau’s assignment. In Conner v. Allen, 40 Tenn. 419 (1859), our Supreme Court held, in a case involving circumstances similar to those in the case at bar, that a garnishee who neglects to protect the interests of third parties “must pay the penalty of his own wrong and cannot avoid liability to the party entitled on the ground that he has paid the debt to another, although under color of legal process,” and that it was the duty of the garnishee in his answer to the garnishment to have disclosed the interest of the third party. We appreciate that this case, which is the only Tennessee case we have found addressing this question, is of ancient origin. However, the same rule has been applied in other jurisdictions in more recent pronouncements. Valley National Bank of Arizona v. Brown, 19 Ariz.App. 493, 508 P.2d 752 (1973); Cole v. Randall Park Holding Co., 201 Md. 616, 95 A.2d 273 (1953); Consolidated Rendering Co. v. Smith, 94 N.H. 304, 52 A.2d 288 (1947). See also: cases annotated in 45 A.L.R. at page 655. Further, it would seem to us that if Archer’s theory is accepted, assignees whose security interest has been properly perfected would have little protection against an attaching judgment creditor.

We, therefore, are of the opinion that, as above noted, Archer is entitled to credit for core paper and rent, but not for the sums paid to court, and that the award heretofore made by the Chancellor should be reduced to the sum of $12,945.06.

For all of the foregoing reasons the judgment of the Trial Court as modified herein is affirmed. The costs of appeal are adjudged one-half against Nassau and one-half against Archer.

PARROTT, P. J. (E.S.), and SANDERS, J., concur.

Appendix to follow.

APPENDIX

OPINION ON PETITION TO REHEAR

Nassau Trust Company has filed a petition to rehear, complaining that our original opinion allowed Archer credit for a one percent discount of $1164.11 and other miscellaneous deductions of $124.55.

Although our original opinion did not address these two items, they were considered. With regard to the discounts, the agreement provided as follows:

3.4 The price to be paid by Archer for tubes delivered hereunder, during the first twelve months of this Agreement, shall be those prices set forth in EXHIBIT D hereto, less fifteen percent (15%). Thereafter, and commencing on the first day of the thirteenth month after the date of this Agreement, Archer’s payment to Tubes (sic) shall be determined monthly by the following method: Fifteen percent (15%) below the lowest market price for comparable tubes then available to Archer from any source.

In this connection, William G. Giasi, who was vice-president of Major Tube and manager of its Greeneville operation, testified as follows:

Q. It’s true, is it not, that in the first place 1% 10 day discounts are customary in the trade, and particularly in the core trade?
A. I would say that is correct.
Q. And I believe that the pricing structure in the contract between Tube and Archer refer to the Sonoco prices as sort of a base point?
A. Right.
Q. And that Sonoco in its pricing structure offered a discount, too?
A. Right.
Q. 1% 10 days?
A. Yes. When they issued-we had the contract with an appendix with the prices. When they issued the blanket purchase order they-
Q. “They” being Archer?
A. Archer-it was brought up that they were getting “1-10”.
Q. The purchase order on its face had written on it “1% 10 days”?
A. I guess for Archer’s accounting purposes they issued us a blanket purchase order right as we began operation and they said that they were getting a “1-10” discount from Sonoco and-
Q. So, your invoices--that is, the invoices which Tube sent to Archer had written on their face “Terms, 1% 10 days”?
A. Correct.
Q. So, will you agree, then, that the discounts-that is, item #2 of the Special Master’s Report, $1,164.11 is a proper discount taken for the 1% 10 day period?
A. Yes, I would,-

We accordingly conclude that, in light of Mr. Giasi’s testimony, the contract as drawn contemplated a discount.

The second point raised by Nassau insists that at least one invoice was not paid within 10 days and, therefore, not entitled to be discounted. This was not considered in our original opinion because the case was argued and briefed on the theory that the discounts were improperly allowed because they were not provided for in the agreement, rather than because they were not paid at the proper time. Because this question was not initially presented we are disinclined to grant the petition.

Moreover, as to both propositions, the assignment provided that Nassau, after deducting all charges currently due it from the assigned proceeds, would credit the balance of the payments to Major Tube’s checking account. This procedure was followed by Nassau deducting $3000 from each check (except the last one in the sum of $239.77) and delivering the balance to Major Tube. Thus, it can be seen that, assuming Nassau is correct and Archer was not entitled to the discount, even if Archer had paid the full invoice price, the situation of Nassau would not change because it was required to deliver the additional sums to Major Tube.

The miscellaneous items consist of a $53.20 credit for padlocker tape purchased for Major Tube, and a $51.35 credit as the difference between credit taken for the estimated cost of stock delivered to Major Tube and the actual cost as finally determined. In our view both items are comparable to the purchase of core paper and subject to be credited.

Archer, in its response to the petition to rehear, complains of our not allowing credit for the funds paid into court. We seriously question whether the matter is properly before us in view of the fact that it was not presented within the 10 days provided by Rule 22 of this Court. In any event, the complaint is merely a reargument of matters previously considered by the Court and is overruled. We do concede in this connection that Archer is correct in that it will be required to make a double payment. This, however, is invariably the penalty exacted from a creditor who fails to protect an assignee. Conner v. Allen, 40 Tenn. 419 (1859).

PARROTT, P. J. (E.S.), and SANDERS, J., concur.

      . See appendix for full text.


author: NEARN, Judge.

text:
    Nat W. PARHAM, Administrator C.T.A. of the Estate of Edna Arnold Caulton, Appellee, v. Carey WALKER, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Jan. 12, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.

      Ira H. Murphy, Memphis, for appellant.
    Earl Pat Davis, Memphis, for appellee.
   NEARN, Judge.

This is an appeal by the contestant in a will contest case from a jury verdict in favor of the will proponent.

The six Assignments of Error run together and, to a large extent, overlap. They can be divided into two categories — eviden-tiary complaints and complaints regarding the Court’s charge. The evidentiary complaints are without merit. We believe the Trial Court’s charge contained positive error and accordingly we must reverse for a new trial.

Since the matter must be retried, we will limit our discussion of the facts.

The facts over which there is no dispute are that testatrix Edna Arnold Caulton became acquainted with the Reverend Isiah Rowser in 1965. At the time the testatrix was approximately 80 years of age with no immediate family. Her estate consisted principally of her homeplace (a modest dwelling) and two valuable commercial lots occupied by a gasoline service station which she had inherited and from which she received a monthly income.

On May 29, 1973, over objection of counsel for Edna Arnold Caulton’s relatives, Isiah Rowser was appointed conservator of her estate and remained as such until her death.

On May 30, 1974, Edna Arnold Caulton executed the formal writing styled “LAST WILL AND TESTAMENT OF EDNA ARNOLD CAULTON” which instrument is the subject of this controversy. By this instrument Caulton left everything to her conservator Rowser and named him as executor. The 1974 will recites the reason for leaving everything to Rowser as “in consideration of the care and attention he has shown me and the services he has rendered to me and on my behalf, all of which has been lacking on the part of my relatives.”

Edna Arnold Caulton died on May 25, 1975.

Notice of contest of the will was filed and the matter was transferred from the Probate Court of Shelby County to the Circuit Court of that County for a trial on the issue of devisavit vel non. Proof pro and con regarding the mental testamentary capacity of the testatrix was adduced as well as proof tending to show the existence or nonexistence of a confidential relationship between the testatrix and Rowser.

Counsel for appellant (will contestant) sought to have the Court instruct the jury that as a matter of fact a confidential relationship existed between the testatrix and Rowser and therefore the “burden of proof shifted” and was upon the will proponent. The Trial Court refused to so charge the jury. The arguments at the trial level, and in this Court, all speak generally of the shifting “burden of proof”, but never with specificity as to what burden or of what proof. There we think lies the cause of confusion.

The attack on the 1974 will was two pronged, i. e., one thrust was at the mental capacity of the testatrix and the other was directed at alleged undue influence on the part of Rowser. The proof on these two issues are entirely different. The failure to make a proper distinction between these matters is the error involved.

First, as to the issue of unsound mind. Unless the deceased has already been adjudicated insane at the time of the execution of a will, the burden is always upon the one who alleges an unsound mind to prove it. See Bridges v. Agee (1932 M.S.) 15 Tenn.App. 351. Even the existence of a guardianship or conservatorship is not per se an adjudication of an unsound mind, that is, an adjudication of mental incapacity to execute a will. Tucker v. Jollay (1957 E.S.) 43 Tenn.App. 655, 311 S.W.2d 324. The burden of proving an unsound mind was upon the contestant in this case at all times and never shifted. The Trial Judge did not err in placing that burden of proof on the contestant.

Now we turn to the matter of undue influence. Of course, should a jury in a case where both of these issues were present, find the deceased to be of unsound mind, the issue of undue influence is never reached. Undue influence presupposes a mind of testamentary capacity. Acts of insane minds or minds lacking testamentary capacity are void regardless of influence, undue or not.

It is not influence upon a capable mind that is prohibited. It is the undue influence thereof which is the subject of judicial condemnation. Patterson v. Mitchell (1929 M.S.) 9 Tenn.App. 662. For the doctrine of undue influence to be applicable there must be a confidential relationship in existence whereby one party (donee-grantee-beneficiary) is in a position, because of the confidential relationship, to exercise undue influence over the mind and will of the other (donor-grantor-testator). Turner v. Leathers (1950) 191 Tenn. 292, 232 S.W.2d 269. The burden is upon the one who alleges the existence of such a confidential relationship to prove it. In re Estate of Rhodes (1968) 222 Tenn. 394, 436 S.W.2d 429. Once its existence is proven, undue influence is presumed and the recipient must prove an exception to the presumption by carrying the burden of showing the fairness of the transaction and the non-existence of the presumed undue influence. If the recipient fails in that burden, the transaction is presumed void. Miller v. Proctor (1940 M.S.) 24 Tenn.App. 439, 145 S.W.2d 807. There are recognized ways to disprove the existence of undue influence such as independent, competent advice, but they need not here be discussed. Lyman v. American Nat’l Bank & Trust Co. (1960 E.S.) 48 Tenn.App. 328, 346 S.W.2d 289.

It should be noted that the Trial Judge evidently relied upon certain statements found in Phillips’ Pritchard on the Law of Wills and Administration of Estates (3rd Ed. 1955) and such cases as Vantrease v. Carl (1966 M.S.) 56 Tenn.App. 636, 410 S.W.2d 629 and Thomas v. Hamlin (1964 W.S.) 56 Tenn.App. 13, 404 S.W.2d 569, as authority for instructing the jury that the existence of a confidential relationship did not raise a presumption that the beneficiary had exercised undue influence and did not cast the burden on the beneficiary of disproving undue influence. The essence of the holding in Thomas v. Hamlin was that, under its facts, whether or not a confidential relationship existed between testatrix and beneficiary was a matter for jury determination. It is a lengthy Opinion, but as we read it, that is all it holds. The deceased, while under conservatorship, drafted a will leaving her estate to a relative. She did not leave her estate to her conservator. Therefore, the Court never reached the issue of the confidential relationship created by the conservatorship and the presumptions that flow therefrom. The Court in Thomas v. Hamlin recognized that it is natural to leave one’s estate to relatives and it is also natural that a relationship of confidence exists between relatives, and that proof of the natural relationship of relatives did not establish per se the confidential relationship in law which raised the presumption of invalidity. Whether the blood relationship plus other facts constituted the legal confidential relationship was for jury determination. To the same effect was the holding in Vantrease v. Carl. Most recently, our Supreme Court in the case of Kelly v. Allen, 558 S.W.2d 845, released December 5, 1977, at Jackson and marked for publication, reiterated the distinctions between the confidentiality inherent in natural blood relationships and legal “confidential relationships”. In that case the Court held that in order for the presumption of invalidity to rise in transactions between close family members, not only must the natural confidential relationship be present, but there must be an additional showing of the presence of the elements of dominion and control by the stronger over the weaker or other conditions to establish the destruction of the free agency of the donor. The Court then stated that these rules (requiring more than establishment of confidential relationships) “are not applicable in those cases where a fiduciary relationship exists, e. g., guardian and ward, trustee and cestui que trust, or any other relationship where the law prohibits gifts or dealings between the parties.”

The relationship of conservator-ward is one of those cases where the “additional showing” rules are not applicable and the Trial Court erred instructing the jury that the burden of disproving undue influence was not on the beneficiary.

In this case the proof shows that the legal relationship of conservator-ward existed between the beneficiary and testatrix at the time of the execution of the 1974 will. We hold that such a Court established relationship is a confidential relationship in law and in fact. Proof of a Court ordered relationship of conservator-ward is not proof of lack of testamentary capacity, but it is proof of a confidential relationship. The conservator is under bond to faithfully perform. The control of the conservator is absolute unless limited by the Court. Section 34-1012 T.C.A. prescribes the duties and powers of a conservator as those of a guardian of a minor. The Trial Court should have charged the jury that a confidential relationship did exist between the testatrix and will beneficiary as a matter of law and the burden was upon the will beneficiary to show the fairness and honesty of the transaction and to negate the presumption of undue influence.

The result is that the cause is reversed for substantial error in the charge and the matter remanded for a new trial.

Honorable T. Mack Blackburn, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Judge Paul R. Summers.

Done at Jackson in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.

MATHERNE, J., and BLACKBURN, Special Judge, concur.


author: MATHERNE, Judge.

text:
    EMPLOYERS INSURANCE OF WAUSAU, Plaintiff-Appellant, v. Jeff WOODRUFF, Auvern Williams, Doyle Williams, Patsy McAlpin, Weakley County Electric System and Chicago Southern Transportation Company, Inc., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    March 20, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.

      Griffin Boyte, Warmath & Boyte, Humboldt, for plaintiff-appellant.
    H. Max Speight, Dresden, for Woodruff.
    Thomas, Welles & Thomas, Dresden, for Williams.
    Allen J. Strawbridge, Jr., Strawbridge & Strawbridge, Martin, for McAlpin.
    Richard L. Dunlap, Jr., Dunlap, Dunlap .& Hessing, Paris, for Chicago Southern Transportation.
   MATHERNE, Judge.

This lawsuit involves the construction of an additional insured clause of an automobile liability policy. The insurer seeks declaratory judgment as to whether it must defend a personal injury lawsuit brought against the driver of the insured automobile and whether it is liable under the policy should the injured party obtain judgment against the driver. The trial judge held against the insurer, and it appeals to this Court.

A named insured under the policy is Ferry-Morse Seed Company. The defendant Jeff Woodruff worked for Ferry-Morse as a checkup-salesman. His duties were to call on customers of Ferry-Morse to inventory seeds that had been shipped to the customers, to collect for the seeds sold by the customer and to pick up the unsold seeds for return to Ferry-Morse.

Woodruff was hired in Fulton, Kentucky by a Mr. King who was in charge of the Ferry-Morse operation in the State of Kentucky. After giving Woodruff some preliminary instructions and a manual of instruction which included the job description, hours of work, reporting instructions and instructions for the use and care of a motor vehicle to be furnished by Ferry-Morse, King delivered to Woodruff a 1975 van-type Chevrolet automobile owned or leased by Ferry-Morse with instructions to report to a Mr. Holman in Louisville, Kentucky. Wood-ruff reported as directed and was eventually assigned an area in extreme northeast Kentucky.

About a month later Woodruff drove the van to Fulton, Kentucky. Holman recommended that Woodruff be fired for leaving his area without notifying the company. King, however, decided to give Woodruff another chance and told him to report back to Holman. A fair reading of the proof indicates that the company officials were more concerned about Woodruff’s leaving his area without notifying the company than with his use of the van to go to Fulton. On about October 24, 1975, Wood-ruff decided he was through with Ferry-Morse and returned to Fulton in the van, arriving there at about 8:00 p. m. Later that evening he drove the van to Martin, Tennessee and was involved in an automobile collision at about 2:00 a. m. the next morning. At the time of the collision Wood-ruff was using the van for his personal pleasure.

The facts established that the van was in the general custody of Woodruff. The manual of instruction required that he keep the vehicle in proper running condition. He was authorized to have necessary repairs made. The manual stated that “weekend non-business driving in a company car is discouraged.” Non-business use was not specifically prohibited. Officials of Ferry-Morse testified that they told Woodruff not to use the van for personal purposes. It appears, however, that other employees used company cars for personal reasons, and the injunction not to so use the vehicles, if given, was not enforced.

The policy issued to Ferry-Morse defines persons insured as follows:

II. Persons insured.
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured.
(b) * * *.
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * * *.

The words “actual use” as distinguished from “use” or “using” have been held to be of no significance when interpreting a clause of this nature. Foley v. Tennessee Odin Ins. Co. (1951), 193 Tenn. 206, 245 S.W.2d 202.

In Stovall v. New York Indemnity Co. (Tenn.1928), 157 Tenn. 301, 8 S.W.2d 473, the Court considered the effect of permission by the named insured that another could use the insured vehicle. The Court aligned Tennessee with the minority view as follows:

It is our opinion that the words, “providing such use or operation is with the permission of the named assured,” were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use, with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession.

In Hubbard v. U. S. Fidelity & Guaranty Co. (1951), 192 Tenn. 210, 240 S.W.2d 245 the Court held that:

The initial permission is not controlling where the use is limited to a specific purpose for a limited time and the driver takes the car for his own purposes and has an accident when using the car in a complete departure from any business of or permission by the owner.

We note that the opinion in Moore v. Liberty Mutual Ins. Co. (1952), 193 Tenn. 519, 246 S.W.2d 960, distinguishes Hubbard from Stovall on the basis that the cases turn upon the distinction of general custody (Stovall) and limited permission (Hubbard ). In the former, the initial permission will render the insurance applicable even though the party given custody causes an injury while using ⅜ for reasons not contemplated by the owner. Whereas in the latter case of limited permission, the initial permission does not extend the authorized use beyond the limitation placed thereon, and if injury results from use beyond the permission given, the policy does not cover the loss.

In Stovall the clause read: “providing such use or operation is with the permission of the named assured.” The contract now before the Court has the additional provision: “provided his * * * use thereof is within the scope of such permission.” (Emphasis added).

We conclude that the policy provision “within the scope of such permission” can have no effect where general custody of the vehicle was entrusted to another person. As a practical matter, it would be difficult to determine what use would be “within the scope of such permission” and what use would not be so included where the owner-named insured surrendered general custody of the vehicle to another. Therefore, applying the Stovall rule to the facts of this lawsuit, we hold that the policy does afford coverage to the employee Woodruff.

The trial judge is affirmed. The cost in this Court is adjudged against the plaintiff - appellant for which execution may issue, if necessary.

NEARN and SUMMERS, JJ., concur.


author: ROGER E. THAYER, Special Judge.

text:
    Charles A. “Z” BUDA, Appellant, v. CASSEL BROS., INC., Appellee. Gale JARNIGAN, Appellant, v. CASSEL BROS., INC., Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    April 8, 1978.
    Rehearing Denied May 2, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.

      Richard C. Jessee, of Bacon, Dugger, Jes-see & Perkins, Morristown, for appellant Charles A. “Z” Buda.
    Jim W. Stambaugh, Morristown, for appellant Gale Jarnigan.
    William T. Gamble, of Wilson, Worley, Gamble & Ward, Kingsport, Joe A. Tilson, of Taylor, Tilson, Inman & Reams, Morris-town, for appellee.
   OPINION

ROGER E. THAYER, Special Judge.

Charles A. “Z” Buda, Mayor of the City of Morristown, Gale Jarnigan, Sheriff of Hamblen County, and Ayers Porter, Jr., Chairman of the Hamblen County Quarterly Court, instituted malicious prosecution actions against Cassel Bros., Inc. as a result of the filing of a counterclaim against them in a civil proceeding in the United States District Court at Greeneville. The cases were consolidated for trial and at the conclusion of all the evidence, the Court directed a verdict in favor of the defendant contractor in each case from which Mayor Buda and Sheriff Jarnigan have perfected appeals.

Prior to trial Cassel Bros, filed a motion to dismiss the complaints because (1) of improper venue (2) there had been no final determination of the civil proceeding and (3) the statute of limitations had expired. This motion was overruled and later a motion for a change of venue was filed by Cassel Bros, and an evidentiary hearing was conducted which resulted in the motion being denied. Cassel Bros, excepted to these rulings and has preserved the record by filing a wayside bill of exceptions which we must review in the event plaintiffs are successful under their assignments of error.

Cassel Bros, (as general contractor) was awarded a contract by the State of Tennessee to construct a regional prison in the Morristown area. This idea was met by vigorous opposition. The grading of the construction site was to have been completed by other contractors but was delayed for some length of time due to the actions of protesting parties. The work of the general contractor was to commence in the early part of the year 1974, but was delayed until June because of numerous violent and unlawful acts to prevent the construction from going forward. The record is replete with evidence of activity designed to prevent the erection of this facility and include but is not limited to the following: the blockage of the road leading to the construction site; threats and intimidation against workers engaged in performing the construction work; violent explosions caused by dynamite; the discharge of fire arms in the area of the construction site; unlawful threats and intimidating statements to officials of Cassel Bros.; the assemblage of large number of citizens at the entrance of the construction site and the unusual inability of the contractor to purchase necessary supplies to be used in the construction work.

It should be noted that other litigation preceded the filing of the suit in the United States District Court where the counterclaim was filed. One of the earlier suits was brought by the City of Morristown and the Hamblen County Quarterly Court against Mark Luttrell, Corrections Commissioner, The Department of Corrections of the State of Tennessee and Winfield Dunn, Governor. This action was filed in the Chancery Court of Davidson County and sought a decree prohibiting the construction of the prison facility. A counterclaim was filed by these defendants charging Mayor Buda and Chairman Porter with the commission of certain illegal and unlawful acts as Cassel Bros, later incorporated in its counterclaim. This case was never heard upon its merits and sometime thereafter the State of Tennessee filed a suit in the Chancery Court of Hamblen County against Mayor Buda and Chairman Porter and numerous other individuals charging unlawful acts upon their part and containing numerous charges as set forth in the counterclaim later filed by Cassel Bros. in. the District Court suit. This case also was not heard on its merits and was later dismissed upon motion.

With this background a suit was filed in the United States District Court by Mayor Buda and other individuals against certain officials of the State of Tennessee and the United .States and against Cassel Bros, seeking to halt the erection of the prison under certain federal environmental impact statutes.

The state defendants and Cassel Bros, filed a joint answer and counterclaim against Mayor Buda, Chairman Porter, Sheriff Jarnigan and 14 other named individuals organized as “Citizens Against the Proposed Prison” seeking damages in the sum of $100,000. against Sheriff Jarnigan and $500,000. actual damages and $775,000. damages for procuring and inducing a breach of contract against all other named individuals.

The general language of the counterclaim charged the counterclaim defendants with engaging in a conspiracy to deprive Cassel Bros, of its lawful right to construct the facility and perform its contractual obligations with the State of Tennessee; that certain other named counterclaim defendants committed certain specific acts to hinder construction; that Sheriff Jarnigan was aware of the efforts of the conspiracy and refused to prevent such unlawful acts but aided such parties in their efforts and that-he had failed to enforce a restraining order; that all parties except Sheriff Jarnigan had “attempted to procure breaches of contracts of persons dealing with the State of Tennessee and Cassel Brothers, Inc., by threats, misrepresentations, persuasion, bribery and by actual physical restraint and violence, harrassment and annoyance . . . ”

This answer and counterclaim was prepared by W. Henry Haile, Assistant Attorney General, State of Tennessee, who had been representing the interest of all state officials in the District Court suit and the various matters previously pending in the state courts. Mr. Haile had conferred with M. Lacy West, counsel for Cassel Bros., concerning the preparation and filing of the counterclaim and had assured Mr. West that he had sufficient evidence to establish the allegations as set forth in the counterclaim pleading. The record indicates that upon receiving this assurance from Attorney General Haile, Mr. West authorized him to sign his name to the pleading and file same in behalf of Cassel Bros. Sometime later the District Court required Cassel Bros, to restate its counterclaim for clarity purposes and the restated counterclaim contained the general substance of the charges heretofore described. It further appears that Mr. West prepared and filed the restated pleading.

The State had advised Cassel Bros, to not attempt to undertake any investigations regarding any unlawful events in connection with the construction of the facility as various state offices would handle necessary investigations. The undisputed proof establishes that the Attorney General’s office, The Tennessee Bureau of Investigation and the Tennessee Highway Patrol investigated all phases of conflict in regard to the erection of the prison and that the Attorney General’s office had access to such reports. It further appears that Mr. West did not have personal knowledge of facts alleged in the counterclaim nor did officials of Cassel Bros, have knowledge concerning these facts, but that they were relying exclusively upon the assurances of Attorney General Haile in filing the counterclaim.

The United States District Court dismissed the complaint because it failed to state a cause of action under applicable federal statutes and the counterclaim was dismissed because it did not state a cause of action under applicable constitutional provisions and the dismissal was later affirmed by the Sixth Circuit Court of Appeals.

The evidence submitted by plaintiffs consisted chiefly of testimony by Mayor Buda and Sheriff Jarnigan that they were not guilty of any acts averred in the counterclaim and the opinion by other witnesses that their reputation had been damaged as a result of the filing of the pleading in question.

While the majority of reported cases in Tennessee deal with the institution of malicious prosecution actions after the termination of criminal proceedings, the right to bring an action of this nature for the malicious institution of a civil proceeding is well recognized in our state. Lipscomb v. Shofner, 96 Tenn. 112, 33 S.W. 818 (1896); Nashville Union Stockyards, Inc. v. Grissim, 13 Tenn.App. 115 (1930); Ryerson v. Am.Sur. Co. of N.Y., 213 Tenn. 182, 373 S.W.2d 436 (1963); Kauffman v. A. H. Robins Co., 223 Tenn. 515, 448 S.W.2d 400 (1969).

As stated in the most recent case of Kauffman v. A. H. Robins Co., supra, the essential elements of an action for malicious prosecution are that a prior suit or judicial proceeding has (1) been instituted and finally determined in favor of the plaintiff, (2) brought through malice on the defendant’s part and (3) without probable cause, and as the opinion recites there is a heavy burden of proof on the plaintiff in establishing malice and the lack of probable cause.

In reviewing this record in its most favorable light to the plaintiffs, we must keep in mind that the ultimate question is whether or not there is evidence to establish that the counterclaim was filed maliciously and without probable cause. The determination of whether or not the allegations of the counterclaim are actually true or false is a matter of some significance but not determinative of whether the action was instituted in good faith or maliciously and without cause.

In connection with the essential element of lack of probable cause, we adopt the principles as set forth in the Restatement of Torts with regard to the wrongful institution of civil proceedings.

In order to establish the lack of probable cause in instituting a civil proceeding, it must appear that the suit was filed primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based. If it is established that the party instituting the proceeding reasonably believes in the existence of the facts upon which the claim is based and has reasonable belief that under those facts the claim may be valid or has reasonable belief in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information, then probable cause is established. Restatement of Torts, Second, §§ 674, 675

The determination of probable cause may be a mixed question of fact and law. When the facts are not in dispute, the question is for the Court. Nashville Union Stockyards, Inc. v. Grissim, supra; Restatement of Torts, § 681

At the conclusion of all the evidence, the trial judge was of the opinion that Cassel Bros, had acted upon the advice of counsel and therefore the lack of probable cause had not been established. We agree with this finding as there is no evidence in the record indicating that officials of the corporation withheld material information from its attorney or from the state’s attorney and that the advice was not sought in good faith.

For the reasons herein indicated, we conclude that Appellant Buda and Jarnigan did not establish sufficient evidence from which a lack of probable cause could be found. The action of the trial court in directing verdicts is therefore affirmed and the costs are taxed to the plaintiffs equally.

PARROTT, P. J. (E. S.), and SANDERS, J., concur.

OPINION ON PETITION TO REHEAR

Appellant, Sheriff Gale Jarnigan, has filed a petition to rehear insisting that we failed to consider certain factual matters as evidenced by the record.

We are of the opinion that these matters were given full consideration in reaching a decision upon the issues presented.

Therefore, the petition to rehear is respectfully denied.

PARROTT, P. J. (E. S.), and SANDERS, J., concur.