author: FONES, Justice. HENRY, Justice

text:
    Noble C. CAUDILL, Petitioner, v. MRS. GRISSOM’S SALADS, INC., et al., Respondents.
    Supreme Court of Tennessee.
    July 6, 1976.
    Rehearing Denied Sept. 27, 1976.

      J. Dennis Sanders, Hendersonville, for petitioner.
    S. McP. Glasgow, Jr., Glasgow, Adams & Taylor, Nashville, for respondents.
   OPINION

FONES, Justice.

Plaintiff’s complaint against defendants for personal injuries resulting from an automobile accident concluded with a prayer seeking compensatory damages of $225,-000 and demanding a jury to try the cause. Twenty-six (26) days later, prior to any responsive pleading, plaintiff filed an amendment deleting the last paragraph of the complaint and inserting a new paragraph wherein compensatory damages in the sum of $260,000 were sought with no reference to a jury demand.

The case was docketed as a jury case, was set for trial in the manner and upon a day set aside for jury cases, to wit: March 5, 1974.

On March 4, 1974, defendants’ lawyers learned for the first time that plaintiff’s counsel intended to take the position that his jury demand had been withdrawn and insist upon a non-jury trial. The case was called for trial at the opening of court on March 5, and the record reflects that prospective jurors were present in the courtroom but were excluded for consideration of defendants’ motion filed that morning, seeking a trial by jury pursuant to Rule 39.02 T.R.C.P., or in the alternative, to continue the case. Counsel for the plaintiff resisted the jury demand filed that morning and was armed with a written brief in support of his position that in the state of the record no jury had been demanded by either party, that the demand on the day of trial came too late and that defendants were not entitled to a jury as a matter of right nor as a matter of discretion.

The trial judge, after observing that “You know I never have refused to give anybody a trial by jury” interrupted counsel for the plaintiff’s argument in opposition to the jury demand and ruled as follows:

“THE COURT: Well, that’s enough, Mr. Sanders. This gets back to a matter of discretion of the Court even under those rules. I think the motion comes untimely and too late and I’m going to overrule the motion for a trial by jury. Frankly, it’ll be a lot easier on me to try it without a jury anyhow. I think we can try it a lot faster.
MR. SANDERS: I hope so.
THE COURT: So, I overrule, the motion.”

Defendants then presented their motion to continue the case, also resisted by plaintiff. The trial judge granted defendants’ motion for a continuance and while calendars were being checked for a future trial date the following occurred:

“MR. SANDERS: Your Honor, I’d like to ask the Court to reconsider. We’ve got
THE COURT: (interposing) No, I don’t think there’s any question but what they’ve been surprised in this matter. I’m not saying that you did it deliberately or why it was done, but they didn’t know it, and it’s on the jury docket and it was set on a jury day, and I think that they proceeded on the theory that it was a jury case. Now, how about Thursday, May the 30th?”

On March 19, 1974, defendants filed a written motion for a trial by jury. That motion was overruled on April 27, 1974. The bill of exceptions does not contain any record of the proceedings on that date.

The case came on for trial on May 30, at the conclusion of which the trial judge awarded plaintiff $75,000.

The Court of Appeals writing three (3) opinions, one a dissent, reversed and remanded for a trial by jury, pretermitting defendants’ assignment of error questioning the amount of the trial judge’s award.

We granted the writ of certiorari, remanded to the Court of Appeals for its finding on the assignment of error relating to damages and that Court’s opinion reducing the judgment to $25,000 has now been certified to this Court.

I.

The majority opinion of the Court of Appeals points out that under Rule 38.02 T.R. C.P. a jury may be demanded (1) in the pleadings; (2) by endorsing the demand on the pleadings; or (3) by written demand filed with the clerk, with notice to all parties, within fifteen (15) days after service of the last pleading raising an issue of fact. The conclusion was reached that a jury demand,

“. . .is not a mere pleading, but as is indicated by the statute and Rules of Court, it is in the nature of a notice to the opposing party that a jury has been demanded. It is, thus, doubtful that the mere omission of the demand in an amended pleading can be held to have eliminated said notice. This is especially true where, as here, the case was put on the jury docket pursuant to the demand in the original pleading. .
In any event, we think the Trial Judge should have granted a jury trial under the circumstances presented in this record wherein he recognized that the rather irregular procedure by which the jury demand was omitted, or sought to be withdrawn, resulted in surprise to the opposing party and counsel. Thus, since this case is here for trial de novo, we feel constrained to exercise the right to grant the motion of defendants for a trial before a jury.”

The dissenting opinion disagrees with the majority’s concept of notice, observing that in theory it is good but that the rules do not presently provide for such notice and that the court should not attempt to extend or enlarge upon Rule 38. The dissenting judge expresses the opinion that at the time the issues in this case were joined plaintiff’s jury demand had been properly withdrawn, and that by the terms of Rule 39.02 T.R. C.P. defendants’ late request for a jury was a matter within the sound discretion of the trial court. Noting that the committee comment states that, “‘[t]he provisions of this Rule are designed to give the trial court discretion to grant a jury trial . . ’” (His emphasis), the dissenting opinion concludes that the majority had not found that the trial judge abused his discretion, “. . . but merely that if the decision had been ours we would have preferred a trial by jury under the circumstances presented in the record. I do not believe that decision is ours to make.”

The third member of the Court of Appeals wrote a separate concurring opinion prompted by the dissenting opinion, observing that if the jury demand had been endorsed upon the original complaint as authorized by 38.02 T.R.C.P., the demand would not have been withdrawn by the failure to reiterate it in an amendment to the complaint, and concludes that notice of a jury demand once given should be withdrawn by overt notice rather than covert omission. The opinion observes that “. it appears preferable to hold that the jury demand was not withdrawn by failure to repeat it in the amendment to the complaint.” Addressing the issue of discretion the point was made that the right to trial by jury in cases such as this is a constitutional right and can be denied only after waiver; that there is no right to a non-jury trial; that it is preferable to exercise discretion in the direction of preserving a constitutional right which the party did not intend to waive; that discretion should be exercised to preserve a right of one party where the action would not violate the right of the adverse party; and concludes as follows:

“For the foregoing reasons, this Court should revise the discretionary ruling of the Trial Judge and order a jury trial on remand; and this is true even if the dissent should be correct as to withdrawal of the jury demand.”

II.

The statutes dealing with jury demands in existence upon the effective date of the Rules of Civil Procedure, January 1, 1971, were repealed by Chapter 565, Public Acts of 1972, (Adj.S.). Rules 38 and 39 T.R.C.P. govern the demand, withdrawal, waiver and the abandonment after demand of a jury trial. Rule 38.02 T.R.C.P. provides a change from the prior statutory requirements with respect to demanding a jury. Pursuant to T.C.A. § 20-1203 either party desiring a jury was required to make the demand, (1) in the first pleading tendering an issue triable by jury, or (2) on the first day of any term in which the suit stood for trial, and an entry on the trial docket to that effect. We have heretofore noted the three (3) methods by which either party may demand a jury under Rule 38.02 T.R. C.P. The first method, that of demanding same in any pleading specified in Rule 7.01, does not materially differ from the statutory requirement of the demand in the first pleading tendering an issue. The second method, that of endorsing the demand upon such pleading when it is filed is entirely new.

We are presented in this case with a contention by the plaintiff that he has “withdrawn” his original demand for a jury by omitting the demand in an amendment that deleted the paragraph in which the demand originally appeared and omitting it in the replacement paragraph, the only other change being the substitution of $260,000 for $225,000.

It is the plaintiff’s position that since issues had not been joined he was at liberty to withdraw his original demand in the manner described herein, to wit: by the failure to repeat it in the amended pleading.

Of course, if we were dealing with factual allegations in an original complaint, deleted in an amendment, the omitted facts would not be considered as having been pled. A jury demand, a waiver of trial by jury and a withdrawal of a jury demand cannot be regarded as comparable to mere factual allegations, and are subject to entirely different rules.

The second sentence of Rule 38.05 involves a change from the prior statutory law. .T.C.A. § 20-1206 provided that a change from a jury cause to a non-jury cause, or vice versa at any time, required the consent of both parties.

Rule 38.05 T.R.C.P. reads as follows:

“Waiver. The failure of a party to make demand as required by this rule constitutes a waiver by him of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of all parties as to whom issues have been joined.”

While there arises an implication from Rule 38.05 that a jury demand may be withdrawn before issues are joined, without the necessity of consent of all parties, the rule does not affirmatively say so, nor does it purport to address the manner in which a jury demand, that remains upon the face of the record, is to be withdrawn. The conclusion is inevitable that the rules do not deal with the situation presented in this case.

The only case that we have found involving withdrawal of a jury demand, under prior statutory law, having any relevance to the instant case is Warren v. Grocery Company, 96 Tenn. 574, 36 S.W. 383 (1896). The plaintiff had demanded a jury on the first day of the January term. When the case came on for trial in the September term, on the jury docket, plaintiff announced to the court that he waived the jury and over objection of the defendant the court tried the cause as a non-jury case. Construing that portion of the 1875 Act, codified as T.C.A. § 20 — 1206, and finding reversible error in the denial of a jury trial, the Court stated:

“The Act of 1875 was declared constitutional by this Court in the case of Garrison v. Hollins, Burton & Co., 2 Lea, 684. It was held that this legislation only declares what voluntary acts of the parties shall be deemed an agreement on their part to waive a trial by jury.
In this case no presumption of an agreement between the parties to waive a trial by jury can legitimately arise, for the reason that plaintiff, in the mode prescribed by law, demanded a trial by jury. It was, of course, not incumbent upon the defendant, in view of the plaintiff’s demand, to make a similar demand, for, upon the demand of the plaintiff, the cause was required by the Act to be transferred to the jury docket, and could not be remanded to the nonjury docket without ‘the consent of both parties.’ Any other construction of the statute would convert it into a snare, whereby the litigant might easily be entrapped and deprived of his constitutional guaranty of trial by jury.” 96 Tenn. at 578, 36 S.W. at 384.

We are unwilling to interpret the Tennessee Rules of Civil Procedure as intending to sanction the withdrawal of a jury demand in the manner employed in this case. We believe that it was intended that, since a complaint may be amended without leave of court or consent of any party, prior to a responsive pleading, the prior practice requiring consent at any time, was modified to allow withdrawal without consent before issues joined. However, the method of withdrawal being unspecified in the rules, we hold that it can only be done by an affirmative declaration that the prior jury demand is withdrawn, and a mere omission of a prior demand, as here, is ineffective.

III.

Two members of the Court of Appeals did not approve the exercise by the trial judge of his discretion denying defendants a jury trial. However, his action was not characterized as an abuse of discretion. Implicitly the dissenting judge did not approve of the trial judge’s decision, but his disapproval also fell short of a finding of abuse.

There are a number of significant factors bearing upon the exercise of discretion to grant or deny a jury trial in this case. First is the novelty of the method of withdrawal, impossible under prior law. See T.C.A. § 20-1206. It is a matter of common knowledge that in the overwhelming percentage of personal injury cases both the plaintiff and the defendant desire a jury trial, and almost invariably the plaintiff makes the demand. Withdrawal of a jury demand in a serious personal injury case is rare, and in some judicial districts, unheard of. Yet this record reflects that from and after twenty-six (26) days following the filing of the original complaint this plaintiff, for reasons not appearing, was unalterably opposed to a jury trial.

Conclusions favorable to the grant of defendants’ motion may obviously be drawn from the following statement of plaintiff’s counsel, as he opened his argument in opposition thereto, on the morning of March 5, 1974. (Subsequent to the following quote, counsel for plaintiff said, “He hasn’t said one word to me about this motion that he filed this morning.”)

“MR. SANDERS: Well, let me say this. He said that he found out yesterday afternoon that there wasn’t going to be a jury trial or there was no demand, and he’s been up here numerous times heretofore and it’s his duty to look after his own case. As a matter of fact, during the course of the preparation of this case he and Mr. Glasgow both have told me to let them handle their own case when I have made a suggestion; but, getting to the merits of their right to a trial by jury, if the Court please, anticipating that they had made a discovery, or in the event they was going to oppose a trial without a jury, I did some research and put it together here in the event that they did — that my suspicions did materialize — -and I’d like to show it to the Court and file it. There are some authorities here.”

No reason appears why the plaintiff’s attitude toward a jury trial changed in the twenty-six (26) days intervening between January 5, and January 31, 1972. On the other hand, it was clear to the trial judge, and it is clear to us, from the affidavit of one of defendants’ counsel that, in good faith, defendants were unaware of the plaintiff’s intended “withdrawal” of his jury demand prior to the afternoon preceding the trial date and therefore at the first opportunity, the following morning, the defendants sought to exercise their constitutional right to a jury trial.

As noted by the Court of Appeals there is no right to a non-jury trial. Silcox v. Smith County, 487 S.W.2d 652 (Tenn.App.1972). No reason or circumstances are offered as a prejudice or disadvantage to the plaintiff by virtue of the trial of this case before a jury. The reasons given by the trial judge, for denying defendants’ motion, that appear in the record, are that it was untimely and that the trial would be easier and faster without a jury. The trial judge’s own statements in the record show that he unequivocally accepted as true the facts stated by counsel for the defendant in his affidavit, as do we, and therefore the motion was timely made. Of course, the fact that a non-jury trial might be easier and faster provides absolutely no basis on which to deny a party the constitutional right of trial by jury.

Regardless of plaintiff’s motivation in withdrawing his demand for a jury, by the method employed the effect upon the defendants’ rights were the same — the circumstances provided an excuse for defendants’ counsel’s omission, from the consequences of which, fundamental fairness and justice demanded relief.

In these circumstances we find that the trial judge abused his discretion, in denying a jury trial.

The judgment of the Court of Appeals reversing and remanding the cause for a trial by jury is affirmed. Costs are adjudged against plaintiff.

COOPER, C. J., and BROCK, J., concur.

HARBISON, J., not participating.

HENRY, J., dissents, filing separate opinion.

HENRY, Justice

(dissenting).

I respectfully dissent.

Twenty-six (26) days after the original complaint was filed, and before a responsive pleading was served and, therefore, before issue was joined, plaintiff exercised his Rule 15.01-decreed right to amend his complaint.

The body of the amendment so filed reads as follows:

Comes the Plaintiff, Noble C. Caudill, and amends his Original Complaint filed in this cause by deleting the last paragraph of his Complaint in its entirety and adding the following paragraph;
“Wherefore, the Plaintiff, Noble C. Cau-dill, sues the Defendants for compensatory damages in the sum of $260,000.00.”

The transcript contains a Xerox copy of the original amendment, containing a total of five (5) lines, and forty-five (45) words, in conventional size type, and showing that it was served on 29 January 1972.

Eighty-four (84) days later, after seeking and obtaining two enlargements of time, defendants filed their “answer to the complaint and amended complaint filed against them.” Counsel had eighty-four days to read, analyze, digest, study and respond to this forty-five word amendment, which was openly, publicly, and officially filed..

The so-called “withdrawal” of the jury demand was accomplished in a pleading, officially filed and served upon adversary counsel.

The word “withdrawal” is inappropriate. What this plaintiff did — and all he did— was to amend his pleading by the deletion of the demand for a jury. ' His reasons for so doing are left to conjecture.

Lawyers, of course, should not ambush their adversaries, but, at the same time they are at liberty to pursue an ethical trial strategy, and are under no obligation to forewarn their adversary.

There is no requirement in the Rules or in reason that adversary counsel be given specific notice of a jury demand, except in those cases where written demand is filed with the clerk, independent of the pleadings, pursuant to Rule 38.02 Tenn.R.Civ.P.

And most assuredly there is no requirement that adversary counsel be notified of a failure to demand a jury. The complaint, as amended, made no such demand. It stands as a pleading in which no jury demand was ever made.

Under Rule 38.02, Tenn.R.Civ.P., the defendants had a right to demand a jury in their answer, or by endorsement on their answer or by lodging a written demand with the clerk. They did not elect to pursue any of these procedures.

Counsel for the defendant simply did not carefully read the amendment and “treated it as “merely an increase in the ad damnum”, and “not as an attempt by the plaintiff to withdraw its jury demand” — as shown by affidavit of counsel for the defense. These highly capable, but busy, lawyers simply did not correctly read the amendment.

I attach no significance to the fact that the case was placed on the jury docket. This was a clerical error. Docketed jury, non-jury, or not docketed, this was a non-jury case under the pleadings and in the absence of a timely jury demand in the prescribed manner. Actually, Rule 39.01 obviously contemplates a single docket and the predicate (§ 20-1201, T.C.A.) for a two-docket system no longer exists. Rule 39.01 reads in pertinent part:

When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action.

The trial judge is vested with discretion to order a jury trial notwithstanding the failure of a party to demand a jury. Rule 39.02, Tenn.R.Civ.P. I find no warrant in this record for a holding that he abused his discretion, in failing to do so.

If a new trial is to be ordained, it should be restricted to the issue of damages since there is no substantial dispute as to liability-


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    Pauline WARE, Appellant, v. UNITED STATES STEEL CORPORATION, Appellee.
    Supreme Court of Tennessee.
    July 19, 1976.

      O. D. Bridges, Catlett, Ramsey & Bridges, Jefferson City, for appellant.
    Arthur G. Seymour, Jr., Frantz, McConnell & Seymour, Knoxville, for appellee.
   OPINION

HENRY, Justice.

This is an appeal from a denial of Workmen’s Compensation benefits in a suit wherein the claim was predicated upon silicosis and recovery was sought under the occupational disease statutes, § 50-1101, et seq., T.C.A.

Claimant was employed by United States Steel Corporation for approximately thirty years. Sometime around 1964 he developed hypertensive cardiovascular disease. In February 1969 he suffered a myocardial infarction, but recovered sufficiently well to resume his employment. In March 1971 he suffered a second myocardial infarction.

After this second heart attack his doctor advised him not to return to work. The doctor testified by deposition and stated that as a result of this heart condition “Mr. Ware was 100 percent disabled.” He did not return to work. He drew his company pension and social security benefits based on total disability.

On May 30,1972 he consulted Dr. William K. Swann, a thoracic surgeon, who determined that he was suffering from silicosis and was permanently and totally disabled by reason thereof. It was Dr. Swann’s opinion that silicosis would aggravate his heart condition.

This action was instituted on October 2, 1972. Thereafter, he was examined on November 30, 1972 by another thoracic surgeon, Dr. William K. Rogers, who was designated by counsel for U. S. Steel. Dr. Rogers concluded that he was suffering from “pneumoconiosis in category one”, characterized as being the lowest on the severity scale, with “minimal to moderate loss of pulmonary function.” He further testified that pneumoconiosis can be a progressive disease. He testified positively, however, that it did not aggravate, or have any significant effect on coronary artery disease.

The Trial Judge found that claimant had silicosis arising out of his employment, and that this was permanently and totally disabling; however, he further found and held:

. that this plaintiff was totally disabled before the diagnosis of silicosis by reason of the heart condition, and since he was totally disabled by reason of the heart condition this Court cannot award any compensation by way of reduced earning capacity for silicosis. (Emphasis supplied). ’

There is ample material evidence to support findings that (1) claimant was permanently and totally disabled after his heart attack of 1971; (2) that he was suffering from silicosis, a progressive lung disease, and (3) that he was permanently and totally disabled by reason thereof.

II

The action of the Trial Judge in predicating his denial of compensation upon the basis of there being no reduction in earning capacity was unfortunate and resulted in the parties joining issue, in this Court, on a question that is not properly involved in this controversy.

It should be borne in mind that the all pervading purpose of the workmen’s compensation laws is to substitute compensatory income for loss of earning capacity. Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546 (1923). But it must be borne in mind that the terms “loss of earning capacity” and “loss of earnings” are not synonymous. See 2 Larson, Workmen’s Compensation Law, § 57.21 (1976).

At the very outset of this discussion, we point out that there is a substantial difference in the Workmen’s Compensation Law as it exists today and as it existed prior to 1953.

The “permanent partial disability” cases prior to the adoption of Chapter 111, Public Acts of 1953, construe subsection (c) of § 50-1007 which, prior to 1953, read:

In all other cases of permanent partial disability not above enumerated the compensation shall be sixty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition subject to a maximum of twenty-five dollars per week. (Emphasis supplied).

It is evident that under the section as it then existed a decrease in earning capacity was significant.

In Standard Sur. & Cas. Co. v. Sloan, 180 Tenn. 220, 173 S.W.2d 436 (1943), the Court makes this decrease in capacity to earn wages the primary test of entitlement to compensation. After quoting from the act as it then existed, the Court said:

The measure of the award is prescribed by the language we have italicized. If there is no ‘difference,’ then there can be no award of compensation. 180 Tenn. at 225, 173 S.W.2d at 438.

Obviously, the Court in that case construed the phrase “is able to earn” as being synonymous with “is earning” although later in the opinion does make the statement “[t]he test is whether or not there has been a decrease in petitioner’s capacity to earn wages.” 180 Tenn. at 226, 173 S.W.2d at 438.

In the case of Mathis v. Forrest & Sons, 188 Tenn. 128, 216 S.W.2d 967 (1949), the Court quoted extensively from Standard Sur. & Cas. Co. and dismissed the petition for permanent partial benefits because the injuries complained of “had not diminished petitioner’s earning capacity”. The factual situation was that the claimant had had no reduction in his wages as a result of the injuries he had sustained. Again the Court very obviously applied a test of actual loss of earnings as opposed to earning capacity.

Mr. Justice Gailor, in Greeneville Cabinet Co. v. Ramsey, 195 Tenn. 409, 260 S.W.2d 157 (1953), substantially clarifies and moderates these and other prior holdings by a clear statement that the phrase “is able to earn” is not synonymous with “is earning”, and points out that:

The question is whether, in the open labor market, in his disabled condition, the employee, after the injury, is able to earn in spite of his disability, as much as he was able to earn before the injury. 195 Tenn. at 414, 260 S.W.2d at 159.

By Chapter 111, Public Acts of 1953, the Legislature struck the last paragraph of Section 6878(c), 1950 Code Supplement, [now Sec. 50-1007(c)] and inserted a new provision designed to furnish a basis for determining the compensation to be paid for permanent partial loss of the body as a whole by giving it “a specific value in weeks in the same manner that a value in weeks is given in the schedule to the various members of the body.” Hooper v. Young Sales Corp., 199 Tenn. 629, 635, 288 S.W.2d 703, 705 (1956).

The effect of this amendment was to place “permanent partial loss of the use of the body in the schedule wherein specific amounts are fixed for the whole or partial loss of a given member of the body.” Bituminous Cas. Corp. v. Smith, 200 Tenn. 13, 19, 288 S.W.2d 913, 915 (1956). See also U.S.F. & G. v. Townsend, 206 Tenn. 592, 335 S.W.2d 830 (1960).

In McKenzie v. Campbell & Dann, 209 Tenn. 475, 354 S.W.2d 440 (1962), the Court, speaking through the late Justice White, in a case involving permanent partial disability held the test to be “what he is able to earn in his disabled condition on the open labor market.” 209 Tenn. at 482, 354 S.W.2d at 443.

In American Surety v. Kizer, 212 Tenn. 328, 369 S.W.2d 736 (1963), this Court, speaking through Justice Holmes, quoted with approval the language from Bituminous Cas. Corp., supra, with respect to § 50-1007(e) as follows:

[The amendment] had the effect of placing permanent partial loss of the use of the body in the schedule wherein specific amounts are fixed for the whole or partial loss of a given member of the body, or of its use, and without regard to the effect of such loss upon the subsequent earning power of the injured employee. 212 Tenn. at 336, 369 S.W.2d at 740.

Under § 50 — 1007(c), relating to permanent partial disability, the fact that there is no decrease in earning capacity is not of controlling significance. Given the statutory obligation of the courts to treat the Workmen’s Compensation Law as a remedial statute to be given an equitable construction, we think the true rule is that the fact of employment after an injury, the earning power of the injured workman, and his earnings are to be taken into consideration along with all other factors involved, to include whether the employee, in the light of his education, his physical and mental abilities, or the lack thereof, is employable in the open labor market.

Ill

It is important that we bear in mind that the Tennessee Workmen’s Compensation Laws classify compensable injuries into four separate and distinct classes, viz., (a) temporary total disability, (b) temporary partial disability, (c) permanent partial disability, and (d) permanent total disability, as pointed out in McKenzie v. Campbell & Dann, supra, and that:

[ejach of these four kinds of disability is separate and distinct and is separately compensated for by different methods provided by the several sub-sections of § 50-1007; and each of such provisions is independent and unrelated. 209 Tenn. at 486, 354 S.W.2d at 445.

Actually this case does not arise under subsection (c) of § 50-1007, T.C.A., but rather it arises under subsection (d) which relates to permanent total disability. This necessarily follows from the fact that there is no dispute in this record but that the claim is for permanent total disability and claimant is entitled to be compensated on that basis, or not at all.

Under § 50-1007(d) the benefits are fixed at “sixty-six and two-thirds per cent (66⅜%) of the wages received at the time of the injury, subject to a maximum compensation of eighty-five dollars ($85.00) per week and a minimum of fifteen dollars ($15.00) per week . . .” Again the whole theory of the Workmen’s Compensation statute is that compensatory income is substituted for loss of earning capacity. The theory of permanent total disability benefits is that there is an irrevocable loss and a complete destruction of that capacity. It therefore follows that earning capacity is of no significance in an award of permanent total disability benefits.

As pointed out earlier in this opinion, this claim is based upon § 50-1101 et seq., T.C.A., relating to occupational diseases. It is provided in § 50-1105 that:

When the employer and employee are subject to the provisions of the Workmen’s Compensation Law, the partial or total incapacity for work or the death of an employee resulting from an occupational disease as herein listed and defined shall be treated as the happening of an injury by accident or death by accident, and the employee, or in case of his death his dependents, shall be entitled to compensation as provided in such law.

Silicosis is a listed disease under § 50-1101, T.C.A.

IV

We have already concurred in the Chancellor’s findings (1) that claimant was permanently and totally disabled as a result of a heart attack in 1971, (2) that he was suffering from silicosis and (3) that this was a permanently and totally disabling condition. It should be pointed out that no claim is made that claimant’s heart condition was occupational in origin.

Our basic difficulty in deciding this controversy stems from the fact that the Chancellor applied an incorrect standard in denying benefits on the basis of a reduction in earning capacity. This is compounded by his failure to make any finding with respect to whether the disease of silicosis aggravated or accelerated his heart condition. The proof in this record is sketchy, inconsistent and unsatisfactory in that regard.

In this connection, we quote with approval from another case arising under the occupational disease statute, Brooks v. Gilman Paint Co., 208 Tenn. 595, 347 S.W.2d 665 (1961):

The general rule is stated to be that, except insofar as the statute may specifically provide otherwise, death or disability resulting from a compensable disease and another, non-compensable, condition or disease is compensable on the ground that the occupational disease is a contributory, aggravating, or accelerating cause. And when a disease arising out of and in the course of employment is superimposed on and affects a prior non-occupational condition, the end result is compen-sable. 208 Tenn. at 599-600, 347 S.W.2d at 667.

The Chancellor found in the instant case, and we concur, that silicosis had its origin in claimant’s employment with U. S. Steel. In this regard we point out that the proof establishes and, this Court has recognized, that silicosis is a progressive disease. Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363 (1954).

Again, quoting from Brooks:

With reference to accidental injuries arising out of and in the course of employment, it has long been the rule in this State that the employer employing a workman takes him as he is and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal healthy person and, if injury is the proximate cause of disability and excites and aggravates a previous weakened condition, the employer is liable . . . After further study, we can see no reason why the same principle should not apply by analogy to aggravation, acceleration or exacerbation of a pre-existing condition or disease brought about by an occupational disease. 208 Tenn. at 600, 347 S.W.2d at 667.

See also 1 Larson, Workmen’s Compensation Law, Sec. 12.20 (1972).

Applying this latter principle to this case, the record shows that as a minimum, U. S. Steel had knowledge of claimant’s heart condition as early as 1969 and it is fair to assume, earlier. If, in point of fact, silicosis did aggravate his serious and continuing coronary heart disease, the principles announced in Brooks, supra, would be applicable. Again, the Trial Judge made no specific finding with respect to aggravation or acceleration of the heart disease and the record in this regard is not entirely satisfactory.

We, therefore, remand this case for consideration under Brooks v. Gilman, supra, and Davis v. Yale & Towne, 221 Tenn. 18, 423 S.W.2d 862 (1967), for the specific purpose of determining whether the occupational disease of silicosis which arose out of and in the course of claimant’s employment, when superimposed upon the coronary heart condition, operated to aggravate, accelerate or exacerbate that condition, resulting in compensable disability. The Trial Judge is privileged to make that finding based upon the existing record or may direct that the parties take such additional proof as he may deem necessary, or as either counsel may deem desirable. Our jurisdiction in workmen’s compensation cases is appellate only and it would be an infringement upon the duties and prerogatives of the Trial Court for us to sit in judgment on this case without a finding by the Trial Court on this critical issue.

Remanded.

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

      . At the time of the trial, claimant was 57 years of age. He has since died and this suit has been duly revived in the name of his widow (administratrix).


text:
    SULLIVAN ELECTRIC COMPANY, Appellant, v. Malcolm C. McDONALD, and wife, Shelby J. McDonald, Appellees.
    Supreme Court of Tennessee.
    July 26, 1976.

      Jerry W. Carnes, Branstetter, Moody & Kilgore, Nashville, for appellant.
    Stephen C. Baker, Dearborn & Ewing, Nashville, for appellees.
   OPINION

HENRY, Justice.

This is a workmen’s compensation case in which the primary issue for our determination is whether the stepmother of a deceased workman is a member of the class of dependents entitled to receive death benefits under Section 50 — 1013, T.C.A. The trial judge determined that she was properly entitled to receive compensation benefits. We are in full accord with that determination.

I.

On September 6, 1974, the deceased, Bradley McDonald, age eighteen, was electrocuted while working in the course and scope of his employment as an electrician’s helper with Sullivan Electric Company. At the time of his death he was living with his natural father, stepmother, and two younger stepsisters, as a family unit, in an apartment in Nashville.

The appellees, Malcolm and Shelby McDonald, are the natural father and stepmother of the deceased employee. For many years prior to June 1974, the deceased’s stepmother had been disabled as a result of contracting poliomyelitis as a child. Her disability was such that her right arm was completely paralyzed, although it could be physically moved with the aid of her left arm. In addition, her left arm was paralyzed from the shoulder to the elbow, thereby limiting movement to her left forearm and hand.

For many years previously, Shelby McDonald had been treated for her paralysis and had undergone several operations performed by Dr. Don Eyler, a Nashville orthopedic surgeon. In order to continue these treatments, and in anticipation of further orthopedic surgery, the appellees moved to Nashville in the early part of June, 1974 from their previous residence in Indiana.

At the time of their move, the decedent was seventeen years of age, had been graduated from high school, and was desirous of leaving his natural mother’s home, also in Indiana, where he had resided since his parents’ divorce in 1971. As a result of discussions with his father concerning the increased financial burdens occasioned by the appellees’ recent move to Tennessee, the decedent agreed to move to Nashville. In the latter part of June 1974, the decedent joined the appellees in their apartment, where he resided until his death on September 6, 1974.

The decedent began working for Sullivan Electric on September 4, 1974, at a gross weekly wage of $123.70. The appellees’ income for a reasonable period prior to the decedent’s death, exclusive of any contributions from him was $176.00 per week. This amount reflects, in substantial part, the earnings of the deceased employee’s father, a long haul truck driver.

Pursuant to the previous agreement with his father, the decedent voluntarily contributed between thirty ($30.00) and forty ($40.00) dollars per week for the family finances. In addition, he also contributed cash from his savings, bought gas for the family car, purchased groceries on various occasions, and purchased some school supplies for his two stepsisters. The decedent also performed numerous household chores and duties which his invalid stepmother was unable to accomplish.

Furthermore, since his father’s occupation required considerable overnight travel-ling, the deceased was called upon to provide nursing care for his invalid stepmother. Such care included, among other things, helping her to dress, lifting her out of bed, taking her to the doctor, giving her medicine, feeding her, taking her shopping, and otherwise caring for her general needs.

Appellees insist that they are entitled to workmen’s compensation benefits by virtue of their being 57% dependent upon the deceased employee at the time of his death. In addition, they seek the $750.00 medical and funeral expense benefits authorized by Section 50-1004, T.C.A.

The trial court determined that the appel-lees were 46% dependent on the monetary contributions and services provided by the deceased workman. A judgment was thereby awarded to appellees in the amount of $19.91 per week, not to exceed $28,000.00, in addition to $750.00 medical and funeral expense benefits.

II.

The statutory dependents of a deceased workman are enumerated in Section 50-1013(a)(3), T.C.A., and specifically include the following relationships:

Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law, and father-in-law

Subsection 50-1013(b), T.C.A. applies this same classification in determining partial dependency benefits:

Any member of a class named in subdivision (a)(3) who regularly derived part of his support from the wages of the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his partial dependent, and payment of compensation shall be made to such dependents in the order named.

Since the term “stepmother” is not specifically included within this statutory enumeration, the initial question for our determination is whether the term “mother”, as used in the statute, was intended by the Legislature to include “stepmother”.

This Court has consistently followed the policy of giving the Workmen’s Compensation Law a liberal construction in order to accomplish the beneficent objects and purposes intended by the compensation statutes. Curtis v. Hamilton Block Co., 225 Tenn. 275, 466 S.W.2d 220 (1971); Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215 (1920). See also Section 50-918, T.C.A. Professor Larson, in his treatise on Workmen’s Compensation Law, at section 62.21 of volume two (1976), candidly expresses such liberality of construction in the following manner:

[Bjecause of the beneficient character of the [workmen’s compensation] legislation, established definitions and rules will usually be stretched as far as precedents will allow, to take care of meritorious cases of dependency.

In the present case, however, it is unnecessary that we “stretch” any established definitions. This Court has, on numerous prior occasions, extended workmen's compensation benefits to persons not otherwise included under the precise language of Section 50-1013(a)(3). For example, the term “child”, as used in this statute, has been held to include a stepchild, Williams v. Travelers Ins. Co., 530 S.W.2d 283 (Tenn.1975); grandchildren, Cherokee Brick Co. v. Bishop, 156 Tenn. 168, 299 S.W. 770 (1927); an illegitimate child, Portin v. Portin, 149 Tenn. 530, 261 S.W. 362 (1923); unrelated children, Atkins v. Employers Mutual Ins. Co., 208 Tenn. 539, 347 S.W.2d 49 (1961); Wilmoth et al. v. Phoenix Utility Co. et al., 168 Tenn. 95, 75 S.W.2d 48 (1934); and even a nephew, Southern Motor Car Co. v. Patterson, 168 Tenn. 252, 77 S.W.2d 446 (1935).

In determining eligibility for workmen’s compensation benefits with respect to dependent children we have repeatedly concluded that mere relationship is not the test, but “support and actual dependency” are the determinative criteria. Williams v. Travelers Ins. Co., supra at 285; Atkins, supra; Wilmoth, supra. The rationale in support of such a test was expressed by this Court in Portin v. Portin, supra, through the following language:

The Workman's Compensation Act is not a statute of descent or distribution. It was intended to relieve society of the burden of caring for injured workmen or the dependents of deceased workmen, and to place that burden upon the industry employing the workman. In case of the workman’s death, the lawmakers were concerned for the care of his dependents, not about the devolution of the workman’s property. The dependency of the claimant is the true basis of his right to compensation rather than blood or marriage. Relationship is really only evidence of dependency. (Emphasis supplied). 149 Tenn. at 535-36, 261 S.W. at 363.

We see no reason why this same rationale should not also be applied in determining eligibility with regard to partially dependent stepmothers.

Appellant cites Milne v. Sanders, 143 Tenn. 602, 228 S.W. 702 (1920), as holding by dictum, that a stepmother is not a dependent under the statute. However, in Milne this Court sustained a compensation award made jointly to the natural father and stepmother of a deceased workman. Reasoning that since the father alone would have been entitled to the. entire amount of the award, the Court concluded that even if it was error to name the stepmother as a dependent, it was “a harmless one.” 143 Tenn. at 626-27, 228 S.W. 702. We do not interpret Milne as excluding a stepmother from the class of compensable partial dependents.

Appellant also relies upon Gray Eagle Marble Co. v. Meek, 159 Tenn. 577, 21 S.W.2d 625 (1929), a case wherein workmen’s compensation benefits were denied to a dependent aunt of the deceased employee, because she did not fall within a class specifically enumerated by the statute. Distinguishing earlier cases which had awarded compensation benefits to various categories of individuals included within the enumerated class of “children”, the Court concluded that:

While we have given the act a liberal construction with respect to those coming within the classes enumerated, we cannot extend its provisions to classes not named therein. (Emphasis supplied). 159 Tenn. at 581, 21 S.W.2d at 626.

In the present case we are concerned with a term (i. e., stepmother) which is logically includible with the broader, statutorily enumerated class of “mothers”. We are not here concerned with an entirely separate and distinct class of dependents, as was the case in Gray Eagle Marble Co., supra.

It should also be noted that in our present Compensation Law the term “parent” is occasionally used interchangeably with the terms “mother” and “father”. Section 50-1013(c)(7), for example, employs the term “parent” in determining the amount of compensation payable in death cases, instead of referring to “mother” and “father” specifically. As used in workmen’s compensation statutes, the term “parent” is ordinarily given a very broad interpretation. This is discussed in Blair, Reference Guide to Workmen’s Compensation, § 14:06 at page 14-26 (1968), wherein it is stated that:

The term “parent” for the purpose of the workmen’s compensation statutes generally includes parents by adoption, stepparents. . . (Emphasis supplied). Ibid.

We are in accord with such a statement as it applies to our workmen’s compensation dependency statutes. Therefore, in light of the authorities herein discussed, we hold that the general class term “mother”, as used in § 50 — 1013, T.C.A., was intended by the General Assembly to include also that category of individuals identified by the term “stepmother.”

III.

We next consider whether the trial judge properly concluded that the appellees were, in fact, partially dependent upon the decedent at the time of his death. We limit our review on appeal, of course, to whether there is any material evidence upon which the trial court’s findings may be based. Cassell Bros., Inc. v. Cole, 519 S.W.2d 796 (Tenn.1975).

Appellant argues that the proof shows only that the deceased workman “was just another family member,” performing no more than those “ordinary and expected household chores”. In our view, the services provided for his family by this young workman were certainly more substantial than those normally provided by an eighteen year old member of a household, because of the peculiar needs of his stepmother. Our examination of the record in this case clearly indicates that there is material evidence to support the trial court’s findings that the monetary value of the cash and services contributed by the deceased workman to the appellees “at and for a reasonable time immediately prior to the accident” was $115.00 per week.

IV.

Appellant insists that the trial court erred in considering evidence as to the stepmother’s increased state of dependency which occurred after the decedent’s death. Specifically, appellant argues that evidence, including photographs, of the stepmother’s increased physical disability as the result of an operation which occurred after the workman’s death was improperly considered by the trial court in determining the amount of the appellees’ partial dependency.

It is well-settled in Tennessee that dependency is to be determined as of the date of the workman’s injury or death, and subsequent events which affect the right of dependents to compensation will not be considered, provided that such persons were dependents within the meaning of the Act at the time of the injury or death. Royal Indemnity Co. v. Jackson, 201 Tenn. 500, 300 S.W.2d 893 (1957); Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215 (1920).

The appellees argue that evidence of Shelby McDonald’s subsequent operation did not affect the trial court’s determination regarding the value of the deceased workman’s contributions immediately prior to his death. Instead, it is suggested, this evidence was only used by the trial judge in order that he might better understand the true nature and extent of Shelby McDonald’s physical condition at the time of the workman’s death.

The amended final order of the trial judge clearly indicates that his determination as to dependency and the percentage of the workman’s contribution was based upon earnings and contributions prior to the accident.

We, therefore, hold that the trial court’s consideration of appellee Shelby McDonald’s physical condition subsequent to the decedent’s death, under the circumstances of this case, was not improper or prejudicial.

V.

The remaining issue involves the manner in which the trial court computed the percentage of the appellees’ partial dependency on the decedent. The trial court used the figure of $176.00 per week as the “total income” of the appellees, without taking into account the monetary value of the cash and services contributed by the deceased employee. Both parties agree that this basis for computation was erroneous and assert that the appellees’ “total income”, in addition, includes the gross amount of the decedent’s contributions. Such an interpretation, however, requires that the cost of the decedent’s own support be included in the dependents’ “total income”, a result with which we do not agree.

Section 50-1013(c)(10), T.C.A. requires that the total income of the dependents be used in determining the amount of their partial dependency. Specifically, the statute provides in pertinent part that:

Partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents which the average amount of the wages regularly contributed by the deceased to such partial dependent at, and for a reasonable time immediately prior to the injury, bore to the total income of the dependent during the same time. (Emphasis supplied).

A controversy similar to that involved in the present case arose in Pilot Oil Corp. v. Sellers, 225 Tenn. 700, 475 S.W.2d 668 (1972), wherein the trial court refused to include the cost of the decedent employee’s own support in determining the percentage of his family’s partial dependency. Holding such a computation to be in error, this Court concluded that under Sections 50-1013(b) and 50-1013(c)(10), T.C.A., “partial dependency compensation payments are to be determined on the actual support contributed by the employee” and “not necessarily the gross sum turned over to the parent” by the decedent. (Emphasis supplied). 225 Tenn. at 704, 475 S.W.2d at 670.

The effect of such an interpretation is discussed in the following language by Professor Larson in volume two of his treatise on Workmen’s Compensation Law (1976), at Section 63.12:

[I]f the the decedent’s contribution is offset by the value of the board and room received, he is doing no more than to “pull his own weight”; he is merely supporting himself, with nothing left over to represent support of dependents.

Although in the present case the actual support in cash and services contributed by the decedent exceeds the cost of his own support, this same rationale applies.

We, therefore, hold that “total income”, for purposes of determining partial dependency benefits under Section 50-1013(c)(10), T.C.A., includes the actual support contributed by the deceased workman rather than the gross sum received by the dependent. In so holding, we should note, as did the Court in Pilot Oil, that:

In determining the extent, if any, by which the support contributions should be reduced by the part thereof expended in decedent’s own support, the cost of decedent’s own support may be credited with the value of his personal services to his [dependent family], if this service has monetary value. 225 Tenn. at 706, 475 S.W.2d at 671.

In accordance with our interpretation of Section 50-1013(c)(10), T.C.A., we also hold that the proper method to be used in computing the percentage of partial dependency under our Workmen’s Compensation Law is to determine the ratio of the actual support contributed by the deceased employee to the total income of the dependents.

In the present case it is undisputed that the appellees’ income, exclusive of any contributions by the decedent, was $176.00 per week. The monetary value of the cash and services contributed by the deceased workman immediately prior to his death was $115.00 per week, although the cost of his support was $34.50 per week. Thus, the actual support contributed was only $80.50 per week, creating a total weekly income to the appellees of $256.50.

Applying the formula discussed supra, to the facts in the present case, we compute a partial dependency of approximately thirty-one and one-third percent (31.38%). This produces a, net weekly compensation award of $13.58 in favor of the appellees. Such an award, however, is less than the $15.00 per week minimum amount payable to partial dependents in death cases pursuant to Section 50-1013(c)(ll), T.C.A. The 1974 amended version of this statute in effect at the time of the decedent’s death provided, in pertinent part, as follows:

The compensation payable in case of death to persons wholly dependent shall be subject to a maximum of seventy dollars ($70.00) per week and a minimum of fifteen dollars ($15.00) a week; provided, that if at the time of the injury the employee receives wages of less than fifteen dollars ($15.00) a week, the eompen-sation shall be the full amount of such wages a week, but in no event shall the compensation payable under this provision be less than fifteen dollars ($15.00) a week. The compensation payable to partial dependents shall be subject to the same" maximum and minimum specified in the foregoing sentence; provided, however, that if the income loss of said partial dependents by such death be less than fifteen dollars ($15.00) per week, then the dependents shall receive the full amount of the income loss. . . . (Emphasis supplied).

Since the appellees’ income loss is, concededly, in excess of fifteen dollars ($15.00) per week, and as their weekly compensation award of $13.58 falls below the statutory minimum authorized under Section 50-1013(c)(ll), supra, we herein modify such award to the fifteen dollar ($15.00) per week statutory minimum, not to exceed twenty.-eight thousand ($28,000) dollars, plus medical and funeral expenses of $750.00.

Pursuant to the discussion herein, the decree of the trial court is hereby modified and affirmed.

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

      . Courts in various other jurisdictions have interpreted the terms “mother” or “father” for purposes of their workmen’s compensation statutes to include “stepmother” or “stepfather.” See, e. g. Custer v. Reitz Coal Co. et al., 174 Pa.Super. 595, 101 A.2d 433 (1953); Black Mountain Corp. v. Jones, 283 Ky. 707, 142 S.W.2d 973 (1940). Cf. Consolidated Underwriters v. Ward et al., 57 S.W.2d 964 (Tex.Civ.App.1933).

      . The net weekly award is computed by taking 31.38% of that award which would have been granted to appellees if they had been wholly dependent, under § 50-1013(c)(7), T.C.A. (31.38% X 35% payable to wholly dependent parents X decedent’s weekly wage of $123.70 = $13.58 per week). See § 50-1013(c)(10), T.C.A.


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    FORD MOTOR CREDIT COMPANY, Appellant, v. QUALITY MOTORS, Appellee.
    Supreme Court of Tennessee.
    July 26, 1976.
    Henry Denmark Bell, Franklin, for appellant.
    Wm. Carter Conway, Franklin, for appel-lee.
   OPINION

HENRY, Justice.

This is an action for the conversion of an automobile wherein the sole issue is whether a lien perfected by a security agreement in the State of Arkansas is superior to the title of a bona fide purchaser for value without notice of the prior lien.

We respond in the affirmative and reverse a contrary ruling by the Trial Judge.

I.

On 30 April 1971, Martin E. Freedman purchased, in the State of Arkansas, a 1971 Mustang automobile, on a retail installment contract with purchase money security interest retained. This contract was assigned by the seller to Ford Motor Credit Company, for full consideration and in the ordinary course of business. Arkansas is a so-called title state and the certificate of title issued in that state showed Ford Motor Credit Company to be the first lien holder.

After purchasing the automobile, Freedman procured a motor tag receipt from the State of Alabama, a non-title state, showing him to be a resident of Montgomery, Alabama and containing no lien notation.

Thereafter, Freedman appeared at the place of business of Quality Motors in Franklin, Tennessee, presented his Alabama motor tag receipt, and executed a bill of sale to Quality, after advising that he was a veteran just returning from Vietnam and that he desired to sell the automobile in order to continue his education.

Quality Motors purchased the automobile, taking as evidence of the transaction, the Alabama tag receipt endorsed by Freedman and a bill of sale. These documents along with title application, were forwarded to the Motor Vehicle Title Division of the State of Tennessee, and a certificate of title was issued. Thereafter Quality sold the automobile in the course of its business as a used car dealer.

The basic thrust'of the defense interposed in the trial court by Quality Motors is that it was a bona fide purchaser for value, without prior notice of any claim by Ford Motor Credit Company; that all documents in its chain of title were complete and regular, and that it had no way of ascertaining any prior liens or encumbrances against the same.

After responsive pleading was filed, Ford Motor Credit Company moved for a summary judgment on the basis of the pleadings, the exhibit thereto, and a supporting affidavit.

The Trial judge held that there was no genuine issue as to any material fact and that the facts set out in the answer (and as hereinabove set out) constituted a legal defense to plaintiff’s claim.

It should be pointed out that Ford Motor Credit Company, according to the pleadings, did not consent to the removal of the property into this state and had no knowledge of its removal here or of its purported registration in the State of Alabama.

II.

We recognize it to be a general rule of law that the lien of a mortgage or conditional sale contract properly recorded or filed according to the law of the state where it was executed and where the property was located at the time, has priority over the rights and claims of other creditors or purchasers from the mortgagor or conditional vendee. This rule continues to prevail even after the removal of the property to another state if that removal is without the knowledge and consent of the mortgagee or conditional vendor. See Annotation, Conflict of Laws as to Chattel Mortgages and Conditional Sales of Chattels, 13 A.L. R.2d 1312.

Tennessee cases have consistently adhered to this general rule of law. The late Justice Chambliss, writing for the Court, in Finance Corp. v. Motor Co., 170 Tenn. 28, 91 S.W.2d 297 (1936), phrased the matter thusly:

This language was quoted and this rule was followed in Lillard v. Yellow Mfg. Accept. Corp., 195 Tenn. 686, 263 S.W.2d 520 (1953).

The rule in this state, therefore, now is that the priority of a chattel mortgage validly executed and legally registered in another state, according to the laws of that state wherein the property was and the mortgagor resided, will be recognized and enforced in this state against the claims of attaching creditors, or innocent purchasers here, unless the mortgagee has consented to the removal of the property into this state, or having knowledge of its removal here, has failed to assert rights under the mortgage within a reasonable time. (Court’s emphasis). 170 Tenn. at p. 33, 91 S.W.2d at p. 299.

We find nothing in the Uniform Commercial Code that changes this rule of law.

We, therefore, hold that the lien created by the Arkansas retail installment contract, was not lost by the removal of the automobile to Tennessee and its subsequent sale to a bona fide purchaser for value without notice of the lien. We recognize that this is a harsh holding which, in isolated instances, could be productive of injustice; however, it is the rule that has been followed consistently in this jurisdiction and which we believe to be necessary in order to give stability to transactions such as these in a mobile society. Caution and prudence are demanded in transactions involving the purchase of automobiles licensed under a state which does not have a title registration law. It is also a harsh result when an owner is permitted to pursue stolen property and recover it in the hands of an innocent purchaser from a thief, but again, legal precedent and the stability of property rights demand that this be permissible. Permitting the holder of a perfected lien to pursue the property and recover it or its value from an innocent purchaser who acquired a semblance of title from a wrongdoer is in essentially the same category.

The judgment of the trial court is reversed and this cause remanded for further proceedings consistent with this opinion.

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


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    Aaron E. MARLOWE and Franklin County et al., Appellants, v KINGDOM HALL OF JEHOVAH’S WITNESSES, Appellee.
    Supreme Court of Tennessee.
    July 26, 1976.

      Robert S. Peters, Swafford, Davis & Peters, Ben Lynch, Lynch, Lynch & Lynch, Winchester, for appellants.
    Chester C. Chattin, Buddy Perry, Chattin & Perry, Winchester, for appellee.
   OPINION

HENRY, Justice.

This is an action quia timet filed by Kingdom Hall of Jehovah’s Witnesses, seeking to remove a cloud from its title to a tract of real estate located in Franklin County and upon which it has erected a church. The complaint seeks a declaration that a tax sale was null and void, and a cancellation of the resulting tax deed. Plaintiff charges that notice of the sale was defective in that it was by publication as opposed to personal service of process, and further pleads the invalidity of the tax sale based on lack of confirmation prior to the institution of this action.

Plaintiff moved for summary judgment on the pleadings and a stipulation of facts. The Chancellor sustained the motion, holding that the owner of the property did not have “proper notice of the tax sale under the due process clause”; that a return by the sheriff, “not to be found in my County”, followed by publication was not sufficient notice; and that the tax sale was not confirmed until after the filing of the instant suit.

This appeal, by the purchaser at the tax sale and Franklin County, ensued.

I.

A chronological narration of the sequence of events will serve to place this entire controversy in proper perspective.

The property involved was initially owned by Hoover Motor Express, Inc., which merged with Ryder Truck Lines, Inc., and ultimately the two companies, as merged, came to operate under the corporate name of Ryder Tank Lines, Inc.

Ryder conveyed the property to Whit-more, Jehovah’s Witnesses’ predecessor in title in 1966.

On 8 January 1970, Franklin County filed delinquent tax suits in the Circuit Court at Winchester for each of the years 1962 through 1967. Hoover was made a party to the suits for the years 1966 and 1967. These six suits were consolidated. On 9 January 1970, a summons was issued for each of the suits, commanding the sheriff to summon all defendants named in each complaint. The sheriff made return on 10 January 1970 as follows:

Came to hand 10 day of Jan. 1970, and not to be found in my County. (Emphasis supplied).

On 8 August 1970, an order was entered by the court directing notice by publication “to all defendants in each of the consolidated cases”. This publication was duly and properly made. Pursuant to these procedures the tax sale was conducted on 15 August 1971. Some nine months later, on 11 May 1972, a report of sale was made showing, among other things, that the appellant, Aaron Marlowe, purchased this property for $79.36.

During all of this period of time Whit-more was the record owner of the property. On 22 February 1973, approximately one and one-half years after the tax sale, Whit-more conveyed to Jehovah’s Witnesses, by general warranty deed, containing the usual covenants against encumbrances. In June 1973, Jehovah’s Witnesses started the construction of a church which was completed in June 1974.

On 8 June 1974, two years, nine months and twenty-three days after the date of the sale, the clerk executed a tax deed to Aaron Marlowe, who, immediately began to assert his rights to the property.

On 6 November 1974, the complaint in the instant suit was filed. On 12 November 1974, more than three years after the tax sale, a decree was entered confirming the sale.

II.

We first address the issue of the sufficiency of the notice, i. e., actual service of process viz a viz publication.

Section 67-2012, T.C.A., relating to the prosecution of suits for the enforcement of tax liens, provides that “[a]ll such suits, whether brought in the chancery court or circuit court shall be prosecuted according to the rules of procedure of courts of chancery . . .

Publication in suits to enforce tax liens is, therefore, governed by § 21-212, T.C.A., wherein it is provided that personal service of process in the court of chancery is dispensed with, inter alia, “[w]hen the sheriff shall make return upon any leading process, that he [the defendant] is not to be found.” This was the return made in this case and, as a matter of law, such a return is sufficient to support publication.

Section 67-1804, T.C.A. recognizes that “[t]he whole proceeding for collection of taxes from the assessment to sale for delinquency shall be a proceeding in rem . . ” This has been the consistent holding of this Court, our latest pronouncement to that effect being contained in Rast v. Terry, 532 S.W.2d 552 (Tenn.1976).

We recognize, as we did in Rast, that it is basic to the validity of suits to collect delinquent taxes that the taxpayer be before the court by actual or constructive service of process. And where the taxpayer is not properly before the court, the resulting decree and sale is a nullity as to him and may be assailed at any time.

It is, however, the established law in this jurisdiction that either actual or constructive notice is sufficient. Naylor v. Billington, 213 Tenn. 614, 378 S.W.2d 737 (1964); Moore v. City of Memphis, 184 Tenn. 92, 195 S.W.2d 623 (1946); Esch v. Wilcox, 181 Tenn. 165, 178 S.W.2d 770 (1944).

It is apparent from these authorities that since a proceeding for the collection of delinquent taxes is a proceeding in rem, the parties are bound by actual or constructive notice. To our knowledge, no Tennessee case has ever held actual notice to be mandatory. To the contrary, it was specifically held in Moore v. City of Memphis, supra, that the law imposes no such obligation.

Every landowner knows that his property is subject to taxes and that they are paid to the county trustee on an annual basis. He is charged with the knowledge that taxes become a first lien upon his property from the first day of January of the year for which they are assessed (§ 67-1801, T.C.A.) and that they are due and payable on the first Monday in October in each year, or in case of city taxes, as otherwise provided in their charter or by applicable law. (§ 67-1101, T.C.A.).

Section 67-2023, T.C.A. provides in pertinent part:

A tax deed of conveyance shall be an assurance of perfect title to the purchaser of said land, and no such conveyance shall be invalidated in any court, except by proof that the land was not liable to sale for taxes or that the taxes for which the land was sold have been paid before said sale; and if any part of the taxes for which said land was sold is illegal or not chargeable against it, but a part is chargeable, but shall not affect the sale, nor invalidate the conveyance thereunder, unless it appears that before the sale the amount legally chargeable against the land was paid or tendered to the county trustee, and no other objection either in form or substance to the sale or the title thereunder shall avail in any controversy involving them.

We reiterate our holding in Rast v. Terry, supra, that

This Court will not look with favor upon an attack made upon a tax sale, where the taxes sued for were actually delinquent and unpaid at the time of the sale and adequate public notice was given. 532 S.W.2d at 555-56.

We reverse the Chancellor to the extent of his finding that the publication in this case was not sufficient. We particularly do not agree that the publication in this case was offensive “under the due process clause”. In view of the consistent holdings of this Court as to the sufficiency of constructive notice, and for the further reasons hereinabove pointed out, we are not willing to extend the rationale of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), to suits for the enforcement of tax liens. In our view neither the due process clause of the Constitution of the United States, nor the “law of the land clause” of the Constitution of Tennessee, or any other provision of either constitution, requires that we depart from the established law in this jurisdiction, that constructive notice is sufficient in such cases.

The appellee makes an exceptionally strong argument upon the sufficiency of the sheriff’s return “not to be found in my County”. The thrust of this argument is that “when the Sheriff receives a summons with numerous names and returns the summons as to all individuals ‘not to be found’ the very same day, the Court must examine the situation carefully to determine if the defendants have been accorded due process of law.”

It is true that the record shows that six tax suits were consolidated into one and process was issued the same day in all six suits. The process in the tax suits is not before the court but the publication made in those cases appears as an exhibit. It covers two full pages in the Herald-Chronicle issue of August 13, 1970, and contains hundreds of names. It is obvious that the sheriff could not have made an accurate return as to all these property owners in a single day. It is equally obvious that a blanket return as to all named defendants “not to be found in my County” was false; however, as to defendant Hoover, the return was accurate — if inadvertently so. The entire procedure for tax collection and enforcement in Franklin County, as demonstrated by this record, ranges from faulty and irregular to downright sloppy. There was an inexcusable delay in the filing of these delinquent tax suits. Orderly fiscal procedure demands that these suits be filed promptly and annually. The sheriff obviously made no effort to serve process. There was an inordinate delay between the sale of the property and the confirmation of the sale. While these procedures are unfortunate and, for the most part, unlawful, we cannot say that any of them individually, or all taken together, operate to void the tax sale in this suit except to the extent of the confirmation which we discuss in the ensuing section.

III.

It is fundamental to our law that a tax sale is not completed until it is confirmed by the court and legal title does not pass until a vestiture is made by the decree of confirmation. Tenn. Marble & Brick Co. v. Young, 179 Tenn. 116, 163 S.W.2d 71 (1942). The procedure on the confirmation of sales in Tennessee is correctly set forth in Gibson’s Suits in Chancery, 5th Ed. 1955, Sec. 675.

The end result is that the sale to the appellant, Marlowe, was not completed until it was confirmed by the court on 12 November 1974, which was after the institution of the instant suit. Neither our remarks in Section II, supra, relating to a tax deed being an assurance of title, nor what we said in Rast, supra, can operate to breathe any life into a void deed. Each presupposes the existence of a valid title. In this case, the deed of 8 June 1974, as to the appellant Marlowe, was a nullity since no decree of confirmation had been entered and no divestiture of title had been ordered.

It, therefore, results that § 67— 2025, T.C.A. providing that “[n]o suit shall be commenced in any court of the state to invalidate any tax title to land after three (3) years from the time said land was sold for taxes . . . ” is not applicable. This necessarily follows from the fact that the sale is not complete until title is divested or, as it is phrased in State v. Allen, 27 Tenn.App. 357, 367, 181 S.W.2d 375, 379 (1943), “[t]he sale was not completed until it was confirmed by the court.”

It results that the Chancellor was correct in not holding that this action was barred by the statute of limitations and in concluding that there was no confirmation of sale until November 12, 1974.

In summary we hold that the notice and publication in this case was sufficient; this action is not barred by the statute of limitations contained in § 67-2025, T.C.A.; and that the tax deed to Marlowe was executed prior to the confirmation of the sale and vestiture of title and, therefore, is a nullity.

Finally, we point out that while a new deed executed pursuant to the decree of confirmation entered on 12 November 1974, might operate to perfect title in Marlowe, the statutory period of redemption as provided in § 64-801, T.C.A., does not expire until 12 November 1976. This follows from the fact that the time allowed for redemption is computed from the date of the confirmation of the report of sale. Tenn. Marble & Brick Co. v. Young, supra.

In order to avoid a multiplicity of actions and to meet the justice of this cause, the Chancellor, upon remand, will treat this as a suit to redeem and, to that end, liberality in the matter of amendments will be indulged to all counsel.

Affirmed in part; reversed in part, and

Remanded.

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

      . The delinquent tax deed recites that a decree made and entered on the 6th day of April 1968 was a confirmation of a sale of certain properties. This recitation obviously is in error as to the Marlowe deed. The record contains nothing to indicate that this sale was confirmed prior to 12 November 1974, which was after this suit was filed.


author: FONES, Justice. BROCK, Justice

text:
    STATE of Tennessee, Petitioner, v. Steve Edward FRIZZELL and Terry Eugene Frizzell, Respondents.
    Supreme Court of Tennessee.
    July 26, 1976.
    R. A. Ashley, Jr., Atty. Gen., Weldon B. White, Jr., Asst. Atty. Gen., Nashville, for petitioner.
    Joel E. Pearman, Harriman, Billy H. Lef-few, Rockwood, for respondents.
   OPINION

FONES, Justice.

Defendants, Frizzell brothers, were convicted of murder in the first degree and sentenced to fifty (50) years in the penitentiary. They were jointly indicted and tried with Mark Allen Harvey. The Frizzell brothers gave police a joint statement exonerating themselves and accusing Harvey of killing the victim. Harvey gave a written statement to the police accusing the Frizzell brothers of killing the victim.

The trial judge allowed Harvey’s statement to be read to the jury during the State’s proof in chief over objection of defendants. Neither Harvey nor defendants offered any proof. Harvey moved for a directed verdict which was granted. The State then offered Harvey as a witness for the obvious purpose of curing a Bruton violation. Defendants objected and Harvey did not testify.

The Court of Criminal Appeals reversed the convictions of defendants, holding that the statement of Harvey was a violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

The State petitioned for the writ of cer-tiorari insisting, among other things, that the Bruton violation was cured by the offer of Harvey as a witness; and by objecting to his being called, defendants waived the opportunity of a confrontation.

Defendants contend that the only basis for the directed verdict in favor of Harvey was that the trial judge believed Harvey’s statement and did not believe the Frizzell brothers; that the adjudication was so devastating that the right of confrontation was destroyed.

The issue thus made prompted this Court to grant the writ of certiorari.

On the evening of February 18, 1974, Lewis Ladd, proprietor of Ladd’s Place, a Roane County Beer Tavern, was shot and killed in an apparent armed robbery. The murder weapon was a .38 caliber revolver, one of two identical pistols purchased by defendants three days before the murder, which was later recovered by police from a Georgia pawnshop where it had been sold by defendants.

All three of the defendants below, the Frizzell brothers and Harvey, were at the scene at the time of the murder. They sped away from the tavern parking lot in a dark truck driven by Steve Frizzell. Defendants later took Harvey to his uncle’s house; and they drove to Marietta, Georgia, where they parked the truck and embarked upon a cross country tour to Los Angeles and back to Marietta by way of bus, train, and hitchhiking. After returning to Marietta, defendants drove back to Tennessee in their truck and were arrested.

In their joint statement to police, defendants admitted to being at the scene of the shooting, but maintained that they remained in the truck while Harvey went in to buy some beer. They claim the first they knew about the shooting was when they heard shots being fired inside the tavern, and Harvey came out and said that he had “ . . . just shot this old man and killed him.”

Police then arrested Harvey, and he gave a completely different account of the shooting. According to him, he and the Frizzell brothers stopped at the tavern to get some beer; and both of the Frizzells went inside while he remained in the truck, the engine of which Steve Frizzell had left running. He then heard six (6) shots, and the Friz-zells came running out. Harvey asked what happened and according to him, Terry Frizzell said, “I shot him.” Steve Frizzell responded with, “That ain’t my first one, but it is Terry’s first one.” According to Harvey, they both told him that they had killed the man. Harvey also said that after the shooting, Terry Frizzell emptied the spent shells out of his weapon and reloaded, while Steve Frizzell did not reload.

As stated by the Court of Criminal Appeals, this case presents a classic violation of the Bruton rule absent Harvey’s appearance as a witness under circumstances providing defendants with the right to cross-examination.

After the trial judge granted Harvey’s motion for acquittal, his statement took on far qreater significance. It bore the stamp of approval of an impartial judge, one to whom jurors look for guidance. The jurors could only conclude that the judge believed Harvey’s statement that he was innocent of murder and defendants were guilty. It is clear that this action of the trial judge was so prejudicial to defendants that cross examination of Harvey would have served only to emphasize the judge’s approval of Harvey’s version of the crime.

We hold that even though Harvey was available as a witness, there could have been no effective cross examination after the trial judge granted his motion for directed verdict.

Finally, the State contends that any violation of the Bruton rule can be overcome because the evidence against defendants is so overwhelming that the violation of that rule is harmless beyond a reasonable doubt. E. g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gwin v. State, 523 S.W.2d 636, 688 (Tenn.Cr.App.1975).

In this case there was substantial circumstantial evidence implicating defendants, but it did not provide the missing link of who actually killed the victim. Defendants told police that Harvey shot him; Harvey told police that defendants shot him. The circumstantial evidence would support a verdict against Harvey if the jury believed the statement made by defendants.

The crucial factor in the minds of the jurors was the statement made by Harvey and approved by the trial judge. Harvey’s statement, in addition to other circumstantial evidence, convicted defendants; and we cannot say that the unconstitutional admission of the Harvey statement was harmless error. The evidence here, without the co-defendants’ statement, was not nearly as strong against defendants as was the evidence in Gwin v. State, supra, in which the defendant not only confessed to the shooting, but which also included the account of an eyewitness who saw the defendant shoot the victim.

The judgment of the Court of Criminal Appeals is affirmed, and the case is remanded to the Criminal Court of Roane County for a new trial.

COOPER, C. J., and HENRY and HAR-BISON, JJ., concur.

BROCK, J., dissents.

BROCK, Justice

(dissenting).

I cannot agree with the conclusion that a violation of the rule stated in Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) occurred in this case. That case merely holds that the introduction of a confession of a co-defendant which inculpates another defendant violates the right of confrontation of that other defendant if the confessing defendant is not available for cross-examination. If the defendant whose confession is introduced is made available as a witness subject to cross-examination by the other defendant, as was done in this case, there is no Bruton violation.

I would reverse the judgment of the Court of Criminal Appeals and affirm that of the trial court.


author: FONES, Justice.

text:
    Fesington LOWRY, Jr., Petitioner, v. William LOWRY et al., Respondents.
    Supreme Court of Tennessee.
    July 26, 1976.

      Robert M. Child, Knoxville, for petitioner.
    Earl S. Ailor, Asquith, Ailor & Jones, Knoxville, for respondents.
   OPINION

FONES, Justice.

Petitioner in this case is the son of the decedent and held with her two (2) joint savings accounts totalling approximately $28,000. The question presented is whether those funds should be transferred to him under the right of survivorship provision of the joint accounts, or whether the funds should be divided equally among the decedent’s five (5) children under her will.

Respondents, William Lowry and his three (3) sisters, filed suit in the Chancery Court of Knox County against their brother, Fesington Lowry, petitioner, who was named executor in the will of their deceased mother. Their contention in the Trial Court was that the assets of two (2) accounts owned jointly by petitioner and his mother, with rights of survivorship, should pass through the estate of Mrs. Lowry according to the terms of her will. The Trial Court found that the language used in creating the joint accounts controlled, and that the survivorship provisions were effective to pass title to petitioner at his mother’s death.

The Court of Appeals reversed, holding that the burden was upon petitioner to affirmatively show that the funds in the accounts were intended as a gift; and that absent such a showing he could not rely upon the language used in creating the joint tenancy. We reverse the Court of Appeals and reinstate the judgment of the Trial Court.

Mrs. Lowry was widowed in 1962 and managed all of her own affairs until her eyesight started failing her; and petitioner, eldest of her five (5) children, began assisting her. She was very active and interested in the management of her financial assets. As her eyesight worsened, decedent depended more and more upon petitioner to handle her financial affairs. However, a concurrent finding of facts by the Trial Court and the Court of Appeals has established that decedent maintained an alert mind until her death; that there existed no confidential relationship between petitioner and his mother; and that there was no fraud practiced by petitioner which would allow him to take financial advantage of his mother.

Decedent was completely independent and lived by herself until 1968 when she moved to a retirement home because of failing eyesight.

The two (2) savings accounts in question were established by decedent without any suggestion or encouragement from petitioner. She opened these accounts in order to reinvest existing funds to realize a higher interest yield, and petitioner’s only participation was the signing of the signature cards.

The first account was opened at Hamilton National Bank in September, 1969, and totaled approximately $10,000 at death. The second account was opened in November, 1971, at Home Federal Savings and Loan Association and totaled approximately $18,000 at death.

Between the opening of these accounts, decedent made out her will in which she left her estate to her five (5) children in equal shares. No mention was made in the will of the joint accounts. Petitioner was named executor of the estate, and in that position he took action to transfer the assets of the joint accounts into his own name and divided the remainder of the estate— approximately $50,000 — into five (5) equal portions for distribution to the children.

Respondents rely upon the theory that if the accounts were transferred to petitioner at all, they were transferred as a gift; and petitioner must affirmatively show that all of the formal requirements of a gift were complied with. That is, there must have been an intention to make a present gift coupled with delivery by which complete dominion and control of the property was surrendered by the donor. While we accept this as a proper statement of the law of gifts, Brown v. Vinson, 188 Tenn. 120, 216 S.W.2d 748 (1949), we reject the argument that these requirements must be affirmatively proven by the survivor of a joint account in order that he may exercise his rights of survivorship under the terms of the agreement.

Although some jurisdictions have adopted the “gift” theory, see for example Trenton Sav. Fund Soc. v. Brynes, 110 N.J.Eq. 617, 160 A. 831 (1932), we feel the better reasoned approach utilizes the “contract” theory. See for example Agrelius v. Mohesky, 208 Kan. 790, 494 P.2d 1095 (1972). Additionally, although there is no case directly in point, the decisions of the appellate courts of this State indicate a propensity toward the contract theory.

Of primary importance is the case of Melhorn v. Melhorn, 208 Tenn. 678, 348 S.W.2d 319 (1961). There, John Melhorn opened a joint account with Lee Melhorn, the defendant. Lee, exercising his right of survivor-ship at John’s death, took control of the $2,500 account, to which he had contributed only $600. This action resulted in a lawsuit brought by the administratrix of John’s estate. Although the opinion contains no clearly expressed rule of law which would dispose of the case at bar, the Court looked to the intention of the parties as expressed by the joint signature card and the testimony of the bank officers, and made it clear that it considered the joint account a contractual undertaking. It noted that although common law joint tenancy with right of survivorship, had been abolished by T.C.A. § 64-107, it could still be created by contract. The contract as expressed on the signature card in that case is quoted by the Court in Melhorn as follows:

“ ‘Joint Account
‘John or Lee Melhorn
‘The undersigned joint depositors hereby agree each with the other and with the First National Bank in Harriman, Tennessee, that all sums now on deposit or heretofore or hereafter deposited by either or both of said joint depositors with said bank to their credit as such joint depositors with all accumulations thereon, are and shall be owned by them jointly, WITH RIGHT OF SURVIVORSHIP, and be subject to the check or receipt of either of them or the survivor of them * * ” 208 Tenn. at 681, 348 S.W.2d at 320.

The court supported its conclusion with two (2) prior cases which relied on the contract theory: Sloan v. Jones, 192 Tenn. 400, 241 S.W.2d 506 (1951) and Peoples Bank v. Baxter, 41 Tenn.App. 710, 298 S.W.2d 732 (1957).

In Sloan the husband opened the joint account in the name of “Joe Tatum or Wife,” and both he and his wife moved to Alabama where he predeceased his wife. The Court, in applying Tennessee Law, held that the account created a tenancy by the entirety, the proceeds of which passed to the wife immediately upon the death of the husband.

In Peoples Bank v. Baxter, supra, Mrs. Baxter made out a certificate of deposit payable to her own order or, upon her death, to her daughter, Mrs. W. A. Nippers. At Mrs. Baxter’s death, the bank filed a bill of interpleader. The Court of Appeals agreed with the parties that the proceeds did not constitute a gift inter vivos or causa mortis, nor a testamentary disposition. The Court sustained the claim of Mrs. Nippers on the contract theory of donee third party beneficiary.

The most recent Tennessee case relevant to the issue is Iacometti v. Frassinelli, 494 S.W.2d 496 (Tenn.App.1973), in which the decedent died intestate with a joint surviv-orship account in existence. The question presented in that case was identical to the one presented in the ease at bar: whether the funds passed at death to the survivor, or to the estate. The Court of Appeals rejected the idea that the survivor of a joint account with survivorship rights was required to go forward beyond the written agreement and affirmatively show by other proof that, the funds placed in the account were intended as a gift. The Court stated that absent a finding of fraud, undue influence, or overreaching: “ . . . the written agreement signed by the deceased speaks just as loudly and clearly as if the deceased herself took the stand and orally expressed the words written on the paper.” Id. at 500.

Although all of the Tennessee cases cited above can in some measure be distinguished from the case at bar, considered cumulatively they support the proposition that a joint account agreement with rights of survivorship establishes a contract which transfers the account proceeds at death by operation of law. Thus, a will disposing of the estate does so without regard to the assets of the joint survivorship account; that is, only that property owned at death passed by will. 1 Pritchard, Law of Wills and Estates, § 28, (2d ed. Phillips 1955); T.C.A. § 32-301; Sadow v. Solomon, 204 Tenn. 190, 319 S.W.2d 83, 85 (1958), and it is clear that joint survivorship funds are not owned by the decedent at death:

“The right of survivorship may be created in a joint bank account ... in which event the proceeds pass to the survivor by operation of law and do not become a part of the assets of the estate in the hands of the personal representative of the decedent.” 2 Pritchard, supra, § 621.

Absent clear and convincing evidence of contrary intent expressed at the time of its execution, we hold that a bank signature card containing an agreement in clear and unambiguous language that a joint account with rights of survivorship is intended, creates a joint tenancy enforceable according to its terms; and upon the death of one of the joint tenants, the proceeds pass to the survivor. Here the agreement was plain and unambiguous on its face. The Hamilton Bank signature card provided:

“If the undersigned are joint depositors we hereby agree with each other and with the Hamilton National Bank of Knoxville that all sums now on deposit or heretofore or hereafter deposited by either or both of us with said bank to the credit as such joint depositors with all accumulations thereon are and shall be owned by us jointly with the right of survivorship and be subject to the order of receipt of either of us or the survivor of us . . . .”

The Home Federal signature card stated:

“ . . .as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety, the undersigned hereby apply for membership and a savings account in the HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF KNOXVILLE and for issuance of evidence thereof in their joint names described as aforesaid.”

Mrs. Evelyn Baker, manager of the West Knoxville Branch of Hamilton Bank testified that she opened the joint account for decedent in 1969, and that the funds for that account were taken from a pre-exist-ing joint account between decedent and petitioner. The reason for the change was to reinvest and receive a higher rate of interest. Mrs. Baker testified that she remembered the transaction; and when asked if she had discussed the right of survivorship with Mrs. Lowry, she replied that, “Mrs. Lowry knew what she had, she knew that she wanted them exactly the way she had them before.” (Referring to the prior joint accounts with right of survivorship.) Mrs. Baker testified that decedent also had a checking account at the bank and that petitioner was authorized to draw funds on it, but that he did not have a right of survivor-ship in the account.

The officer who opened the Home Federal account did not remember the particular transaction but testified that after talking with the customer it is determined whether to have the account in a joint form. Additionally, the proof shows that the funds placed in the account in question were withdrawn from an account in another bank which petitioner and his mother also held jointly.

Respondents rely on their mother’s will, in which she divided everything equally between her children, to show that she did not intend to benefit one over the other. This will, however, was couched in general terms and did not evidence any specific intent on the part of the testatrix to include the joint accounts in the probate estate.

Respondents also rely on a letter from their mother written to all of her children approximately three (3) weeks before her death. The letter stated in part:

“My last will and testament is located in Fes’s [petitioner] safety deposit box. My U. S. Treasury Notes and bank books are also in this box in an envelope marked ‘Property of Mrs. F. C. Lowry, Sr.’ Nothing else in the box belongs to me.”

They maintain that this letter shows that decedent had not relinquished dominion and control over the bank books in question. As we analyze the question in terms of contract law, the relinquishment of dominion and control of the bank books is irrelevant.

In view of Mrs. Lowry’s financial awareness, and her transactions at several banks, including the opening and closing of several different accounts, both joint and non-joint, prior to the opening of the accounts in question, it would be presumptuous to say that she was not familiar with the legal aspects of joint tenancy. Agrelius v. Mohesky, supra.

The establishment of a joint bank account creating a joint tenancy with right of survivorship in clear and unambiguous language is subject to the parol evidence rule and is generally immune from attack in the absence of fraud, misrepresentation, duress, undue influence, mutual mistake, and incapacity. Although none of these defenses was specifically pleaded, the Chancellor found that there had been no undue influence or fraud practiced by petitioner, and this finding was concurred in by the Court of Appeals.

Respondents have not met the burden of showing by clear and convincing evidence that the agreements as expressed in writing on the signature cards did not reflect the true intention of the parties at the time of execution.

The decision of the Court of Appeals is reversed and that of the Trial Court reinstated with respondents to pay the costs.

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