text:
    STATE of Missouri, Plaintiff-Respondent, v. Eugene Frederick WILKE, Defendant-Appellant.
    No. 10709.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Gary W. Lynch, Kerry D. Douglas, Douglas & Douglas, Bolivar, for defendant-appellant.
   BILLINGS, Chief Judge.

A Polk County jury found defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon and assessed his punishment at five years imprisonment. The jury’s verdict was returned December 9, 1976.

Defendant did not file a motion for new trial and on December 28, 1976, the court, pursuant to Rule 27.09, V.A.M.R., afforded defendant allocution, rendered judgment and pronounced sentence.

The transcript filed herein fails to show that the clerk of the court complied with Rule 27.11, V.A.M.R., inasmuch as no judgment was in fact entered. This rule mandates that when “[A] judgment upon a conviction shall be rendered in any court, the clerk . . . shall enter such judgment . and the court shall inspect such entries and conform them to the facts . .” (our emphasis).

In State v. Skaggs, 248 S.W.2d 635 (Mo.1952), our supreme court ruled: “It is the duty of the clerk of the trial court to enter the judgment rendered and the duty of the trial court to inspect the judgment so entered . . . .” (our emphasis).

As Skaggs holds, the failure to comply with Rule 27.11 does not impair the validity of the judgment rendered by the court. However, before appellate review can be undertaken, the judgment must be entered and made a part of the record.

Rule 28.03, V.A.M.R., provides in part that in criminal cases “An appeal shall be taken by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases.” Rule 81.04, V.A.M.R., requires notices of appeal to be filed within ten days after the judgment becomes final. For purpose of appellate review, “[A] judgment becomes final at the expiration of thirty days after the entry of such judgment” if, as here, no motion for new trial has been filed. Rule 81.05(a). (our emphasis).

Thus, it is the entry of the judgment by the clerk of the court of the judgment rendered by the judge that triggers the appellate process. Without entry of the judgment by the clerk there can be no final judgment from which an appeal can be taken. A notice of appeal in such instance is premature.

Here, the transcript fails to disclose entry of the judgment as required by Rule 27.11. We are forced to assume that the approved transcript “correctly includes all of the record”, Rule 81.12(c), V.A.M.R., and that no judgment has ever been entered by the clerk.

The entry of the judgment as required by Rule 27.11 was the ministerial duty of the circuit clerk. Rehm v. Fishman, 395 S.W.2d 251 (Mo.App.1965). The clerk’s failure to enter the judgment in the record of the court is not defendant’s fault and his appeal will not be dismissed but held in abeyance and the cause remanded to the trial court for entry of the required judgment. Upon receipt of a supplemental transcript containing the judgment, defendant’s appeal will be re-submitted. State v. Skaggs, supra; State v. Asberry, 553 S.W.2d 902 (Mo.App.1977).

It is so ordered.

All concur.

      . Rules 27.09 and 27.11 recognize the difference between the rendition of a judgment by the trial judge and its entry by the clerk. Rule 73.01, governing court-tried civil cases, likewise recognizes the difference as does the rule applicable to jury tried cases [Rule 78.04]. Missouri decisions and text authorities agree there is a difference. See: McCoy v. Simpson, 344 Mo. 215, 125 S.W.2d 833 (1939); 49 C.J.S. Judgments §§ 100 and 106 (1947); 46 Am. Jur.2d Judgments §§ 52 and 152 (1969).

      . Accord: 4A C.J.S. Appeal & Error § 445 (1957); Williams v. Williams, 480 S.W.2d 525 (Mo.App.1972) and cases cited therein.

      . In recent months we have been required to dismiss (civil) or hold in abeyance (criminal) appeals because the transcript failed to show entry by the clerk of the judgment rendered by the trial judge. In most instances the “judgment” was nothing more than a docket or minute entry. “ ‘The mere ruling, decision or opinion of the court, no judgment or final order being entered in accordance therewith, does not have the effect of a judgment, and is not reviewable by appeal or writ of error.’ ” McCoy v. Simpson, 125 S.W.2d at 834.
      Administrative Rule 4.12, 542 S.W.2d XXIII (effective March 1, 1977), calls for the court to approve the judgments in all civil and domestic relations cases and states the court shall be responsible for all judgments in criminal cases and further provides “the judgment shall be a part of the respective case file.” (our emphasis). Attorneys who prevail in civil cases might well heed the suggestion of Judge Eager in Byrd v. McGinnis, 299 S.W.2d 455 (Mo.1957), that “counsel might be well advised to check the record” although “the primary responsibility for the entry of a judgment is upon the clerk.”


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Donald Patrick SHIPMAN, Defendant-Appellant.
    No. 10799.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1978.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James R. Reynolds, Ford, Ford, Crow & Reynolds, Kennett, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Donald Patrick Shipman was convicted of an attempt to commit burglary and possession of burglar’s tools by a Dunk-lin County jury. The jury’s verdicts were returned August 23, 1977, and on September 8,1977, the defendant filed a motion for new trial.

The transcript filed herein, approved by the parties, recites that following the court’s overruling of the motion for new trial “allocution was accorded defendant and he was thereafter sentenced by the Court.” This is followed by what is designated as an entry in the office of the clerk which reads:

“Allocution granted. Defendant sentenced to five (5) years in the State Department of Corrections on Count I and to ten (10) years in State Department of Corrections on Count II, the sentences to run concurrently. Credit for 157 days in jail. Bond set at $15,000. Defendant allowed to appeal as poor person and Jim Reynolds appointed as attorney. Court Reporter ordered to prepare transcript at cost of State. Sheriff allowed one guard in transporting defendant.”

Again, we are faced with a premature appeal because the minute entry does not constitute a judgment from which an appeal can be taken. And, without such a judgment being entered by the clerk, we do not have jurisdiction to consider the defendant’s appeal.

Rule 27.11, V.A.M.R., requires that “Whenever a judgment upon a conviction shall be rendered . . ., the clerk . . . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The “judgment” here is nothing more than a minute entry because it fails to comply with Rule 27.11. State v. Asberry, 553 S.W.2d 902 (Mo.App.1977).

What was said in State v. Skaggs, 248 S.W.2d 635 (Mo.1952), is applicable here: “jWjhere it appears from a minute entry that defendant was sentenced but there is no record of a judgment entry, proper disposition is to set aside submission of the ease here and remand it with directions to the trial court to enter judgment.”

For the foregoing reasons and those stated in State v. Wilke, Mo.App., 560 S.W.2d 601, decided this date, the cause is remanded to the trial court for entry of the required judgment. Defendant’s appeal will be reinstated upon receipt of a supplemental transcript containing said judgment.

It is so ordered.

All concur.

      . The transcript does not show an application for and extension of time for filing the motion for new trial. Rule 27.20(a), V.A.M.R.


author: STONE, Judge.

text:
    Fred G. JONES and Mrs. Fred G. Jones, Plaintiffs-Respondents, v. Melburn N. WASHBURN, Defendant-Appellant.
    No. 10088.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1978.

      Arthur B. Cohn, Waynesville, for plaintiffs-respondents.
    B. H. Clampett, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   STONE, Judge.

Plaintiffs Fred G. Jones and Mrs. Fred G. Jones instituted this action in the Circuit Court of Pulaski County against defendant Melburn N. Washburn for the alleged wrongful death of Charly Jones, then 17 years of age, who, while a pedestrian on the paved roadway of the Fort Wood Spur, died as the result of injuries sustained when struck by an automobile owned and then being driven by defendant Melburn N. Washburn. In their petition plaintiffs averred, inter alia, that they were “the mother and father of Charly Jones” and, as such, prayed damages in the sum of $50,000.

After the issues had been joined but prior to trial, defendant filed a “Motion to Strike” plaintiff Fred G. Jones as a party to the suit because (so the motion averred) “he is the stepfather of the deceased, Charly Jones” and, as such, was not entitled to join in an action for the alleged wrongful death of Charly [§ 537.080, V.A.M.S.]; but, this motion was not ruled then or thereafter.

On the same day, the parties proceeded to trial before the court and jury; and, in his opening statement to the jury, plaintiffs’ counsel identified himself by name and then declared that “I represent Mr. and Mrs. Fred Jones in regards to their claim for damages on the wrongful death, that we claim of their son. . . ” (Emphasis ours)

The case was submitted to the jury upon instructions which made no reference to plaintiff Fred G. Jones and the jury returned a verdict in favor of “plaintiff Mrs. Fred Jones and against the defendant,” upon which a judgment, likewise making no mention of Fred G. Jones, was entered.

The posttrial motions and orders in the circuit court of which we have copies, the notice of appeal, all applications and motions in this court, and the printed briefs of opposing counsel on appeal have one characteristic in common, i. e., each and all bear the same caption showing Fred G. Jones and Mrs. Fred G. Jones as plaintiffs and Melburn N. Washburn as defendant.

Although no issue concerning the finality and appealability of the judgment entered in the circuit court has been raised here by counsel for either plaintiffs or defendant, it is our duty in every case to inquire and determine, ex mero motu, whether a final appealable judgment was entered in the court nisi. Beuttenmuller v. Vess Bottling Co. of St. Louis, 395 S.W.2d 204, 205(1) (Mo.1965); Dudeck v. Ellis, 376 S.W.2d 197, 204(1) (Mo.1964); Caudle v. Kelley, 545 S.W.2d 427, 428(1) (Mo.App.1976).

The right of appeal is purely statutory [Rule 81.01, V.A.M.R.; Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107(2) (Mo.1968); Cochran v. DeShazo, 538 S.W.2d 598, 600(3) (Mo.App.1976)]; and, as relevant here, § 512.020, V.A.M.S., grants such right of appeal only to parties who may be aggrieved by “any final judgment in the ease,” a judgment being defined as “the final determination of the rights of the parties in the action.” Rule 74.01; § 512.020. To be final and appealable, a judgment must dispose of all parties and all issues in the case and leave nothing for further determination. Elliott v. Harris, 423 S.W.2d 831, 832(1) (Mo. banc 1968); New Age Federal Savings and Loan Ass’n v. Miller, 461 S.W.2d 876, 878 (Mo.1970); Freeze v. Snider, 429 S.W.2d 257, 258(1) (Mo.1968); Bennett v. Wood, 239 S.W.2d 325, 327(3) (Mo.1951); Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., 215 S.W.2d 444, 445(2) (Mo.1948); Federal Deposit Ins. Corp. v. Crismon, 516 S.W.2d 57, 58(2) (Mo.App.1974).

In the case at bar, it is clear that Fred G. Jones has been at all times since institution of suit, and still is, a party plaintiff, and that the judgment nisi did not dispose of him. In these circumstances, there is no final and appealable judgment, and we have no alternative to dismissal of the appeal [Claspill v. Craig, 546 S.W.2d 202 (Mo.App.1977); Allstate Insurance Co. v. Northwestern National Ins. Co. of Milwaukee, Wisconsin, 539 S.W.2d 118 (Mo.App.1976); Wile v. Donovan, 514 S.W.2d 177, 178(3) (Mo.App.1974); Lewis v. Esselman, 512 S.W.2d 423, 424 (Mo.App.1974); Barton v. City of Ellisville, 504 S.W.2d 202(2) (Mo.App.1973)], “which has the effect of reinstating the cause in the trial court.” Haller v. Shaw, 555 S.W.2d 703, 704(3) (Mo.App.1977).

Defendant’s appeal is dismissed.

BILLINGS, C. J., and TITUS, J., concur.

      . Counsel for defendant-appellant in this court did not represent defendant in the circuit court.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry BOLLINGER, Defendant-Appellant.
    No. 10453.
    Missouri Court of Appeals, Springfield District.
    Jan. 3, 1978.

      Donald R. Rhodes, Bloomfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

Uttering forged check (§ 561.011 para. 1(3) V.A.M.S.); second offender (§ 556.280); 8 years.

The first point of defendant-appellant Terry Bollinger is that the evidence is insufficient to support the verdict in that “there was no evidence supporting a finding of forgery or that defendant forged the instrument or had knowledge of the instrument being forged.”

In determining the sufficiency of the evidence this court must accept as true “all evidence in the record tending to prove the defendant guilty, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom.” State v. Kelly, 539 S.W.2d 106, 109[2] (Mo. banc 1976).

On September 26, 1975, defendant presented to Jack Pullam, a service station attendant, a check dated 9-26-75, in the amount of $73.31, payable to Donald Williams. The check was a “company check” of John-Wayne Sales Company and purported to be signed on behalf of that company by C. L. Wayne. It was drawn on the Citizens Bank of Dexter, Missouri. The reverse side of the check bore the signature “Donald Williams.” In handing Pullam the check, defendant referred to it as a “payroll check” and asked him to cash it. Pullam gave defendant $73.31 and took the check.

Wayne Glenn, the owner of John-Wayne Sales Company, identified the check as being on a printed form used by the company. He stated, however, that no one named C. L. Wayne or Donald Williams had ever worked for the company and he had no knowledge of any such person. No one so named had authority to write the check. “No one in the company wrote the check.”

In June 1976, three weeks prior to the trial, defendant had a conversation with Pullam at the service station in which the defendant said that at the time he “wrote the check” he “needed the bread” and would pay Pullam back.

The foregoing evidence justified the jury in finding that the check was a forged instrument and that defendant, at the time he cashed it, knew that fact. State v. West, 487 S.W.2d 572, 574 (Mo.1972); State v. Whitley, 512 S.W.2d 840, 842-843 (Mo.App.1974); State v. Gantt, 504 S.W.2d 295, 299-300 (Mo.App.1973).

Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in denying his motion for new trial “because the verdict was against the greater weight of the credible evidence because the state offered two witnesses, Jack Pullam and Helen Triplett, who offered contradictory testimony against the defendant.”

Pullam and deputy sheriff Triplett were witnesses for the state. Defendant claims that their testimony was “contradictory” in that Pullam testified that he looked at certain photographs at the sheriff’s office and Triplett testified that Pull-am’s inspection of the photographs took place at the service station.

It is not the function of this court to determine the credibility of the witnesses or to weigh the evidence. State v. Small, 423 S.W.2d 750, 751[2] (Mo.1968). The effect of conflicts in the evidence is a question for the jury. State v. Turnbough, 497 S.W.2d 856, 858[5] (Mo.App.1973); State v. Johnson, 539 S.W.2d 668, 669[2] (Mo.App.1976).

Defendant’s second point has no merit.

Defendant’s third point is that he was entitled to a new trial because of jury misconduct and that the trial court erred in failing to grant that relief. This claim of error was assigned initially in defendant’s motion for new trial. At the hearing on that motion Mina Voss, who was a witness for defendant at the trial itself, testified that during a trial recess she saw Zural Satterfield, a witness for the state, conversing with a juror. The only portion of the conversation which Voss heard was the word “guilty,” spoken by Satterfield.

Where a claim of misconduct on the part of a juror is first presented in a motion for new trial, “an affirmative showing must be made that defendant and his counsel were ignorant of the fact until after the trial.” State v. Reeder, 394 S.W.2d 355, 357[1] (Mo.1965). This record contains no such showing. The point has not been preserved for appellate review. Reeder, supra; State v. Turley, 452 S.W.2d 65, 69[8] (Mo.1970); State v. Maples, 96 S.W.2d 26, 30[13] (Mo.1936); State v. McVey, 66 S.W.2d 857, 859[7-9] (Mo.1933); State v. Warren, 469 S.W.2d 662, 663[2] (Mo.App.1971); State v. Robbins, 455 S.W.2d 24, 27[7, 8] (Mo.App.1970).

Defendant’s fourth point is that the court-imposed sentence of 8 years is excessive punishment for the offense involved. The limits contained in § 561.011 are “not less than two years nor more than ten years” for penitentiary imprisonment of its violators.

“The apparent severity of a sentence within the bounds prescribed by statute does not warrant interference by an appellate court.” State v. Booker, 517 S.W.2d 937, 942[7, 8] (Mo.App.1974). To the same effect see State v. Vermillion, 486 S.W.2d 437, 441[9] (Mo.1972); State v. Phillips, 480 S.W.2d 836, 837[4] (Mo.1972); State v. McCaine, 460 S.W.2d 618, 621[7, 8] (Mo.1970). The soundness of the rule has been questioned, Vermillion, supra, 486 S.W.2d at p. 441 (concurring opinion of Judge Seiler). Although it has been said that a punishment within the statutory limits is not cruel or unusual because of its duration “unless so disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances,” State v. Agee, 474 S.W.2d 817, 821[14] (Mo.1971); McCaine, supra; State v. Brownridge, 353 S.W.2d 715, 718 (Mo.1962), defendant cites no Missouri case where the latter qualification to the rule was actually applied.

Under the foregoing authorities, any inclination on the part of this court to disturb the sentence would be frustrated by the lack of power to do so. Defendant’s fourth point has no merit.

The judgment is affirmed.

All concur.


text:
    Jewel M. WILSON and Ada V. Wilson, Plaintiffs-Respondents, v. E. V. EDWARDS, Defendant-Appellant.
    No. 10424.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.

      James R. Robison, Robison & Blanton, Sikeston, for plaintiffs-respondents.
    Garry E. Champion, Fielding Potashnick, Sikeston, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Suit for specific performance of a contract for the sale and purchase of land. The trial court entered a decree requiring defendant to execute and deliver a deed within fifteen days after plaintiffs paid the purchase price to the clerk of the court. Failure of defendant to deliver the deed would result in a judgment of conveyance. We affirm.

The subject of the lawsuit is 64.4 acres of land located in Mississippi County, Missouri. By a general warranty deed, dated June 30, 1950, this land was conveyed by John and Irene Hodges to Ova and Maud Edwards, defendant’s parents. The deed used typical fee tail language, “Ova Edwards and Maud Edwards, husband and wife for their life and to the heirs of their body.” By statute, this created a life estate in Ova and Maud Edwards and a contingent remainder in defendant, E. V. Edwards, their only child, leaving a reversion interest in the grantors. § 442.470 RSMo 1969; Mattingly v. Washburn, 355 Mo. 471, 196 S.W.2d 624 (1946).

In 1959, defendant became involved in a transaction to exchange farms with a Mr. Guilings.' Defendant’s Mississippi County farm was to be traded for Guilings’ Scott County farm provided a buyer could be found for the Mississippi County land. Defendant’s farm included the 64.4 acre tract. Royal Kellett, a realtor, was retained by defendant to locate a purchaser for the land.

Plaintiffs, Jewel and Ada Wilson, were looking for a farm to buy during this time. They met Royal Kellett who learned of their interest in purchasing a farm and informed the Wilsons four or five days later about the Edwards’ land being for sale. Subsequently, Edwards met with the Wil-sons and discussed the sale of a 400 acre farm at a purchase price of $350 per acre.

In June, 1959, Wilson went to look over the farm and estimated that it was about 400 acres. Approximately a week later, during a second inspection, with Edwards present, Wilson told Edwards he would purchase the farm. Prior to executing a written agreement, however, Wilson refused to take the farm because Edwards was unable to convey 400 acres. Ultimately the parties agreed that Wilson would purchase 333 acres and take a lease on the remaining acres, with an option to purchase.

Defendant’s attorney prepared a lease/option agreement dated July 1, 1959, covering the 64.4 acres. It was executed by Edwards and plaintiffs. Under the provisions, the lease term was for two years beginning January 1, 1960, and the option to purchase the land for $350 per acre was exercisable at any time during the term.

Wilson alleged he told Edwards immediately after executing this first agreement that he had made arrangements and wanted to purchase the tract. A month after execution, defendant learned he could not produce fee simple title because of the language of the 1950 deed to his parents. Edwards continued to accept the rent on the land and did not inform the Wilsons of the title problem until January, 1961, when plaintiffs attempted to exercise their option. Edwards then told the Wilsons he could not sell the land due to the way it was deeded; that he could not convey title until after his mother died.

To correct this problem, Edwards and the Wilsons entered into a second lease/option agreement, prepared by Edwards’ attorney, and executed February 28, 1961. This second agreement had the following relevant provisions.

“For the considerations and upon the terms and conditions hereinafter set out, first parties agree to lease and do hereby lease to second party the following described real estate:
All that part of the West Half of the Northeast Quarter lying South of railroad, less .33 of an acre for road right of way, in Section 13, Township 26 North, Range 14 East, in Mississippi County, Missouri, and containing 64.40 acres, more or less.
“1. This lease is to commence as of January 1,1962, and is to terminate upon the termination of the life tenancy vested in first parties by virtue of warranty deed dated June 30, 1950, and Recorded in Book 154, page 5, in the Recorder’s Office of Mississippi County, Missouri.
* * * * * *
“4. As a part of the consideration herein second party shall have an option to purchase said real estate at any time during the term of this lease for $350.00 per acre or a total of $22,640.00, and in the event that second party should desire to exercise this option third party agrees.
* * * * * *
(b) The conveyance is to be made by a general warranty deed conveying the land free and clear of all liens or incum-brances [sic] of every nature and kind, except taxes and special assessments for the current year and thereafter, it being understood that whoever received the rents for the year of transfer shall pay the taxes for that year.
* * * ⅜ * *
“6. Third party is the only child of first parties above named and for the considerations mentioned herein agrees that he will carry out the terms of the above agreement between first and second parties upon the decease of the last survivor of his parents or when the time comes that he can make a deed in compliance with No. 4 above; should third party come into title in any year after March 15 he shall pay all taxes and receive all rents for that year in accordance with the above terms and second party shall have until the end of such year within which to make the payments for the land as above set out; upon the decease of the last survivor of first parties herein at any time second party shall have not less than 60 day within which to raise the purchase price set out in No. 4 above.
* sf: * * jfc *
/S/ Ove Edwards_
and
/S/ Maud Edwards_ By E. V. Edwards Agent (First Parties)
/S/ Jewel M. Wilson. Ada V. Wilson (Second Party)
/S/ E. V. Edwards_ (Third Party)”

Although he had no written authority from his parents to sell the land or sign the agreement for them, defendant signed it for himself and on behalf of his parents. Defendant testified that he told his parents that he was selling the land and that they had given their consent.

Wilson testified he verbally attempted to exercise the option right after signing the contract, and again in May or June of 1961. He said each time Edwards said he could not give good title until after his mother’s death. Edwards denied these conversations, but admitted telling Wilson in January, 1961 that he could not give legal title until his mother died.

In January, 1966, Wilson’s attorney wrote defendant a letter concerning insurance proceeds when a house on the 64.4 tract was damaged by fire. Inter alia, the letter stated:

“This will further inform you that when the conditions set forth in the contract occur to enable Mr. Wilson to exercise his purchase option, that he will deduct from the purchase price such sum as he deems reasonable to represent the loss of the dwelling on the property which he has contracted to buy.”

Under the 1950 deed, Edwards’ parents had a life estate in the 64.4 acres. His father died in 1961, and his mother died December 14, 1974. When Wilson learned of Mrs. Edwards’ death, he unsuccessfully tried to contact defendant by telephone to exercise the option. He then wrote a letter December 17, 1974, which was received by defendant two days later, attempting to exercise the option. After this and subsequent notices, Wilson met Edwards February 10, 1975, and informed him he was ready to exercise the option to purchase the land. Defendant refused to convey the land, telling plaintiff to see Edwards’ attorney. This suit followed.

An option is a continuing offer by which the owner agrees to give another the exclusive right to buy property at a fixed price within a specified time. It is a privilege, a right of election to exercise a privilege. The purpose is to bind the owner of the land, for valuable consideration, not to withdraw the offer for sale during the fixed period. Upon the optionee’s acceptance the option becomes a complete bilateral contract, supported by mutual promises, and is specifically enforceable. Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62 (1937); Frey v. Yust, 516 S.W.2d 321 (Mo.App.1974).

The controlling issue is whether plaintiffs timely exercised the option to purchase the land. Defendant contends the option could only be exercised during the term of the lease. Plaintiffs argue, and the trial court found, it was exercisable by them upon the death of defendant’s mother when defendant could convey the land by general warranty deed.

The general rule is that the time prescribed for exercise of an option is of the essence, and if the option is not exercised within the time limited all rights of the optionee stand forfeited without notice. Lusco v. Tavitian, 296 S.W.2d 14 (Mo.1956). In this case time would not appear to be of the essence, especially since the exercise of the option was dependent upon the death of the surviving life tenant.

If, as defendant contends, plaintiffs’ acceptance was required during the lifetime of the surviving life tenant, delay in their performance was excusable due to the ir-remedial defect of defendant’s title. Hellrung v. Hoechst, 384 S.W.2d 561 (Mo.1964). Upon the exercise of the option, defendant was obligated to convey the land by general warranty deed, free from all liens and encumbrances. During the term of the lease, it was impossible for defendant to perform his part of the bargain by conveying fee simple because he possessed only a contingent remainder. Defendant told plaintiffs he could not convey the premises until after his mother’s death. An attempted exercise of the option by plaintiffs would have been a vain act, although there was evidence plaintiffs attempted to exercise their power of acceptance. This inability of defendant to perform and the resulting consequences were attributable solely to defendant.

Defendant is not in a position to demand strict performance of the agreement by plaintiffs. The vendor is not entitled to forfeit the contract as against the vendee, when he is himself in no condition to perform, even though by the terms of the contract he has a right to decree it forfeited. The inability of defendant to perform waives strict performance of the contract by plaintiffs. Grismore, Law of Contracts, § 153 at 228 (1947). The time limit in the option being rendered inoperative by defendant’s action, plaintiffs are not bound by it. Defendant was required to comply with the contract as soon as he was able to do so.

In deciding when the option was to be exercised, we must determine what the parties intended. The lease/option agreement is construed as a whole in order to ascertain and give effect to their intention at the time it was made. This intention may be gathered from the language employed, the acts of the parties, and the surrounding facts and circumstances attendant on the transaction. Ferguson v. Gulf Oil Corp., 382 S.W.2d 34 (Mo.App.1964); White v. Barton, 269 S.W.2d 673 (Mo.App.1954).

From the language in the instrument, it is reasonable to conclude, as the trial court did, that the parties intended the option to be exercisable at the death of the surviving life tenant. Paragraph 4(b) obligated defendant to convey the premises free from all liens and encumbrances by general warranty deed. Defendant’s ability to comply with the provision by conveying the fee was by law conditioned upon his surviving his parents, since they had life estates in the tract and he had only a contingent remainder. Paragraph 6 recognized defendant’s contingent interest and the legal problems in conveying the fee to the land. For himself and his parents, he specifically agreed to carry out the terms of the agreement, “upon the decease of the last survivor of his parents or when the time comes that he can make a deed in compliance with No. 4 above . . . .”

The surrounding facts and circumstances lead to a similar conclusion as to the true intent of the parties. Defendant admits this agreement was to correct the situation that resulted from plaintiffs’ exercise of the option under the prior contract and his inability to convey the full legal title. He acknowledges telling Wilson he could not convey the title to the 64.4 acre tract until after his mother died.

Defendant is not prejudiced nor damaged by a decree of specific performance. He admits that the price for the 64.4 acres, established when the agreement was made, was a fair one. If the contract is enforced, both parties are getting exactly what they contracted for, plaintiffs get the land, defendant gets the stipulated consideration and a delay in performance until after his mother’s death. The trial court acted properly in directing specific performance of the contract.

Judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    In re MARRIAGE OF Raymond E. HIRZY, Petitioner-Appellant, and Diane J. Hirzy, Respondent.
    No. 10525.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.
    M. Craig Cassing, Brown, Buckley & Cassing, Sedalia, for petitioner-appellant.
    Dan L. Birdsong, Routh, Thomas, Birdsong & Hutton, Rolla, for respondent.
   PER CURIAM.

The trial court modified the custodial portion of a dissolution decree and appellant-father contends the order is not supported by substantial evidence.

The decree vested primary custody of two children in Diane. Raymond was granted temporary custody during the summer months, on alternate weekends, and on alternate Christmas and Thanksgiving days.

The modification gave Raymond temporary custody of the children for 30 days during the summer and granted him reasonable rights of visitation with the children in Oklahoma City.

Subsequent to the 1975 dissolution, Diane married an Oklahoma resident and she and the children were living in that state when the decree was modified. Raymond had also re-married and had changed his place of residence in Missouri.

We have reviewed the 58 page transcript and the briefs of the parties. The modification order is supported by substantial evidence and no error of law appears. An opinion would have no precedential value.

Affirmed per Rule 84.16(b), V.A.M.R.

All concur.


text:
    Charles Olive MASON, Plaintiff-Respondent, v. Alice Marie MASON, Defendant-Appellant.
    No. 10578.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.
    Herbert Douglas, Douglas, Douglas & Douglas, Neosho, for plaintiff-respondent.
    Abe R. Paul, Paul & Paul, Pineville, for defendant-appellant.
   PER CURIAM.

Dissolution proceeding. Appellant-wife claims the McDonald County Circuit Court erred in failing to award marital property consisting of real estate to either party, erred in its division of marital property, erred in failing to award her maintenance, erred in awarding custody of one child to respondent, erred in the amount of attorney’s fees awarded her, and erred in assessing costs equally between the parties.

We have read the 47 page trial transcript and the briefs of the parties. The decree entered by the trial judge is supported by substantial evidence and is not against the weight of the evidence. No error of law appears and abuse of discretion by the court is not demonstrated. An opinion would have no precedential value.

Affirmed pursuant to Rule 84.16(b), V.A. M.R.

All concur.


text:
    Lucille HANNON, Appellant, v. PULASKI COUNTY MEMORIAL HOSPITAL, Respondent.
    No. 10638.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.
    Larry C. Larson, Kansas City, for appellant.
    W. H. Thomas, Jr., Dan L. Birdsong, Routh, Thomas, Birdsong & Hutton, Rolla, for respondent.
   BILLINGS, Chief Judge.

Plaintiff Lucille Hannon’s suit for damages against defendant Pulaski County Memorial Hospital for alleged negligence in 1972 was dismissed by the trial court on defendant’s motion that the petition failed to state a cause of action because of defendant’s sovereign immunity. We affirm.

The Missouri Supreme Court had occasion to consider the question of governmental immunity from tort liability in four decisions handed down September 12, 1977. In Wheeler v. St. Clair County Hospital District No. 1, 557 S.W.2d 233 (Mo.banc 1977), No. 60012, the court held a hospital district was subject to being sued in a tort action. In State ex rel. Racer v. Richardson, 557 S.W.2d 235 (Mo.banc 1977) No. 60042, the same ruling was applied to a county hospital. In Prewitt v. Parkway School District, 557 S.W.2d 232 (Mo.banc 1977) No. 59958, school districts lost their sovereign immunity. And, the lead opinion, Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.banc 1977) No. 60017, buried the doctrine of governmental immunity in tort liability in a suit for negligence against the state highway commission. However, the Jones case abolished the doctrine of sovereign immunity prospectively, except as to the eases decided that day, “as to all claims arising on or after August 15, 1978 . . . .”

The alleged negligence for which plaintiff sought recovery against the defendant in the instant case occurred in 1972. The doctrine of sovereign immunity is live and viable as to plaintiff’s claim and the trial court correctly dismissed her petition.

The judgment is affirmed.

All concur.


text:
    JOPLIN AUTOMOBILE AUCTION CO., INC., a Missouri Corporation, Plaintiff-Respondent, v. George ROBERTS, Defendant-Appellant, v. Jim NORMAN, Third-Party Defendant.
    No. 10586.
    Missouri Court of Appeals, Springfield District.
    Jan. 4, 1978.

      Herbert Douglas, Douglas, Douglas & Douglas, Neosho, for plaintiff-respondent.
    C. R. Rhoades, Pineville, for defendant-appellant.
   PER CURIAM.

Suit on two checks returned due to insufficient funds. The checks, payable to third party defendant, were written by defendant with knowledge that his account did not have sufficient funds to cover them. Plaintiff cashed the checks for third party defendant. Pleading failure of consideration for the checks, defendant joined third party defendant. The Newton County Circuit Court entered judgment for plaintiff against defendant and for defendant against third party defendant.

Defendant claims the judgment is against the weight of the evidence and alleges the court abused its discretion in overruling his motion for new trial and failing to grant a new trial based on newly discovered evidence.

We have read the transcript and the briefs of the parties and examined the exhibits. The judgment is not against the weight of the evidence, and there is substantial evidence to support it. We do not find any abuse of discretion or erroneous declaration or application of law. An extended opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b).

All concur.


author: FONES, Justice.

text:
    RELIANCE INSURANCE COMPANY, Appellant, v. ATHENA CABLEVISION CORPORATION et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 7, 1977.
    F. Graham Bartlett, McCampbell, Young, Bartlett & Hollow, Knoxville, for appellant.
    Harry W. Asquith, Asquith, Ailor & Jones, William R. Banks, Knoxville, for ap-pellees.
   OPINION

FONES, Justice.

In this case plaintiff, Reliance Insurance Company, sought a declaratory judgment relieving it of all obligations to its insured defendant, Athena Cablevision Corporation of Knoxville, for failure to comply with the notice provision of the policy.

The Chancellor held that Athena was excused from giving notice because it had substantial grounds to believe the death claim was being handled by its indemnitor, Alabama Steeplejack Service, Inc., and its insurance carrier.

The facts were stipulated and the case is before this Court on the direct appeal of Reliance.

On January 26, 1975, Douglas Earl Bailey, and employee of Alabama Steeplejack Service, Inc. was killed while helping to erect a tower for Athena Cablevision Corporation of Knoxville, defendant-in-error. Alabama Steeplejack was erecting the tower pursuant to a contract with Athena, which contract provided that Alabama Steeplejack would carry all necessary insurance coverage and would hold Athena harmless from all claims arising out of the construction of the tower. Executive officers of Athena were notified of Bailey’s death immediately. No notice of the occurrence was given Athena’s insurance carrier until immediately after suit was filed on January 23, 1976. Paragraph six (6) of the stipulation reads in part as follows:

“The reason for not giving said notice to Reliance Insurance Company was because Athena Cablevision Corporation of Knoxville did not think it was necessary under its contract with Alabama Steeplejack Service, Inc., and that the insurance carrier for Alabama Steeplejack Service, Inc. was handling the claim arising out of the death of Douglas Earl Bailey.”

Paragraph 6(a) of the General Conditions of the policy provides as follows:

“Written notice of each occurrence or accident shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable after notice thereof has been received by an executive officer at the insured’s headquarters." (Emphasis in original).

A condition in an insurance policy which requires the insured to give notice of an occurrence “as soon as practicable” imposes a duty on the insured to give notice when he becomes, or should become, aware of facts which would suggest to a reasonably prudent person that the event for which coverage is sought might reasonably be expected to produce a claim against the insurer. Transamerica Ins. Co. v. Parrott, 531 S.W.2d 306 (Tenn.App.1975); Osborne v. Hartford Accident & Indem. Co., 63 Tenn.App. 518, 476 S.W.2d 256 (1972); Munal Clinic v. Applegate, 38 Tenn.App. 280, 273 S.W.2d 712 (1954).

Transameriea Ins. Co. v. Parrott, supra, involved two insurers arguably insuring the same property. Transameriea had issued a primary policy on a truck which was subsequently leased out. The lease contract required that lessor provide liability coverage for the vehicle; Gulf Insurance Company has issued a policy to the lessee which provided coverage for liability in excess of other insurance coverage on non-owned vehicles. Lessee’s servant was involved in an accident for which the claim did not exceed the Transameriea policy limits. Transameriea was promptly notified, but Gulf was not notified until Transameri-ca denied coverage, approximately three and one half months after the accident. In a declaratory judgment action, the Chancellor held that Gulf was not liable to defend or to indemnify lessee because of failure to give notice “as soon as practicable,” as required by the policy.

The Court of Appeals adopted the interpretation placed upon the key words in the notice provision by the Fifth Circuit Court of Appeals in Young v. Travelers Insurance Company, 119 F.2d 877 (5th Cir. 1941), as follows:

“ ‘The time words in the clause, “as soon as practicable” are not words of precise and definite import. They are roomy words. They provide for more or less free play. They are in their nature ambulatory and subject under the guiding rule, to the impact of particular facts on particular cases. They do not in terms require immediate notice or notice within a particular number of days. They may not be so construed. They do not even provide for notice “as soon as possible.” In terms, they require notice “as soon as practicable” and they must be construed as requiring the notice within a reasonable time under all the circumstances, to effectuate the objects and purposes of the notice clause.’ ” 531 S.W.2d at 312, 313.

Judge Nearn writing for the Court, further defined the term “practicable” and applied the definition to the case, thus:

“The term ‘practicable’ not only means reasonable, but has the additional connotation of what might be termed common or ‘horse’ sense. Being practicable about a matter means eliminating the purely formal or useless acts which serve no real or valid purpose. Davis Manufacturing Company was armed with a policy which contained a statement by Gulf to the effect that in those accidents in which leased vehicles are involved you will have no claim against us unless (a) the leased vehicle is uninsured or (b) if insured, only for so much as exceeds the existing insurance.” 531 S.W.2d at 314.
“[I]n situations such as this, the insured is obligated to notify the insurer ‘as soon as practicable’ from the time the insured knew or should have known that the event for which coverage is sought might reasonably be expected to produce a claim against the insurer.” Id.

Parrott is a correct statement of the law, and the relevant facts are legally indistinguishable from the case at bar.

In the case at bar, Athena, indemnified by contract and knowing that Alabama Steeplejack’s insurer was handling the claim, had good reason to believe that no claim would be made against it until suit was filed.

Other Tennessee cases have achieved the same result in cases involving insurance conditions requiring notice “as soon as practicable” by holding that circumstances comparable to those in the instant case excused the giving of prompt notice. See, e. g., Shamrock Homebuilders, Inc. v. Cherokee Ins. Co., 225 Tenn. 236, 466 S.W.2d 204 (1971); Spradlin v. Columbia Ins. Co., 34 Tenn.App. 17, 232 S.W.2d 605 (1950).

Appellant relies primarily on the following cases to establish that an insured is required to give prompt notice to his insurer to preserve his rights under the policy. Sohm v. United States Fidelity & Guaranty Co., 352 F.2d 65 (6th Cir. 1965) (applying Tennessee law); Rural Education Ass’n v. American Fire & Casualty Co., 207 F.2d 596 (6th Cir. 1953) (applying Tennessee law); Pennsylvania, Etc., Ins. Co. v. Horner, 198 Tenn. 445, 281 S.W.2d 44 (1955); Phoenix Cotton Oil Co. v. Royal Indemnity Co., 140 Tenn. 438, 205 S.W.2d 128 (1918); Osborne v. Hartford Accident & Indemnity Insurance Co., 63 Tenn.App. 518, 476 S.W.2d 256 (1972); Foreman v. Union Indemnity Co., 12 Tenn.App. 89 (1928). The only principle relevant to the instant case to be gleaned from these cases is that failure to give prompt notice of the occurrence upon which liability is asserted will release the insurer from liability where there is no reason for the delay. None of these cases deal with a situation apposite to that at bar, where the insured reasonably relied upon an indemnity contract, with knowledge that the in-demnitor’s insurer was handling the claim, until suit was filed against it, whereupon notice was promptly given.

Affirmed. Costs are adjudged against Reliance Insurance Company.

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


author: HENRY, Chief Justice.

text:
    CONTINENTAL INSURANCE CO. and Linden Apparel Corporation, Appellants, v. Elsie Lorene DOWDY, Appellee.
    Supreme Court of Tennessee.
    Jan. 16, 1978.

      H. T. Finley, Parker, Nichol & Finley, Nashville, for appellants.
    Tommy E. Doyle, Humphreys, Townsend & Doyle, Linden, for appellee.
   OPINION

HENRY, Chief Justice.

This is a workmen’s compensation case. The employer appeals from an award in favor of the employee for temporary partial disability and medical expenses.

I.

Appellee, Lorene Dowdy, a fifty-four year old woman with an eighth grade education, had- worked for appellant, Linden Apparel Corporation, as a sewing machine operator for several years. She was assigned to various jobs, and on the date of her injury she had been engaged in sewing pockets on high-back overalls for about a month. This job required appellee to handle bundles of forty-eight pairs of overalls. She would reach back with her left hand, remove each pair of overalls from the bundle, turn the overalls over, sew on a pocket, and fling the finished pair onto a rack with a backward motion of her left arm.

While appellee was tossing a pair of overalls onto the rack on December 10,1974, she experienced a pain in her upper left arm and shoulder. After her lunch break, ap-pellee told Charles Harper, manager of the Linden Apparel plant, that she had “done something” to her arm and “it was killing” her.

Appellee continued to work as best she could the rest of the day and until the end of the next week, when her Christmas vacation began. Thinking that her pain would lessen and her condition would improve, appellee delayed going to a doctor until December 27, 1974, when she was examined by Dr. B. L. Holladay. Dr. Holladay diagnosed her problem as bursitis in the left shoulder. Over the next two months, ap-pellee was under the care of Dr. Holladay and his associate Dr. Elrod, who hospitalized appellee for her condition for a week in the latter part of January 1975. During the months of treatment, appellee would call Harper to tell him that she had visited the doctor and was unable to return to work.

Appellee’s condition improved during her hospitalization, and she returned to work on March 6, 1975. She was assigned to sew pockets on overall bibs, lighter work than that she had been performing on December 10. On April 18, appellee was temporarily laid off. Two weeks later Harper called and offered her the job of cross-stitching galluses. Because this work would strain her injured arm, appellee informed appellant that she was unable to take the job and asked for lighter work. She was then told that this was the only work available and has not worked since April 18, 1975.

On July 13, 1976, appellee, still troubled by pain in her arm, visited Dr. Earl Salha-ny, an osteopathic physician who had treated her on prior occasions. Dr. Salhany concluded from appellee’s subjective history and objective symptoms that she was suffering from an injury to the muscles that rotate the left arm.

II.

Review in workmen’s compensation eases is confined to a determination of whether there is any material evidence to support the trial court’s judgment. Giles County Board of Education v. Hickman, 547 S.W.2d 944 (Tenn.1977). Keeping this rule in mind, we examine appellant’s assignments of error.

Appellant first asserts that the trial judge erred in finding that the employer had notice that appellee had been injured and knowledge that she was receiving medical treatment. The record shows that appellee informed the plant manager, Harper, on December 10, that she had hurt her arm and was in pain. It also reveals that she telephoned Harper to explain that she was unable to return to work because her doctors would not allow her to come back. The trial judge’s finding that appellant had actual knowledge of appellee’s injury and medical treatment through its plant manager is supported by material evidence. This assignment of error is overruled.

Appellant also contends that the trial court disregarded the only competent medical evidence, Dr. Holladay’s testimony, and erred in giving probative value to the testimony of Dr. Salhany.

In its contention that Dr. Salhany’s testimony was not competent, appellant relies upon Reynolds v. Liberty Mutual Insurance Co., 496 S.W.2d 890 (Tenn.1973). In Reynolds, the doctor whose testimony was not competent had relied entirely upon the employee’s subjective complaints in determining the degree of disability. He did not take or examine any X-rays and did not investigate the employee’s past history or consult with other physicians.

In the present case Dr. Salhany x-rayed, measured, and examined appellee in addition to considering her subjective complaints. He had treated appellee before. The fact that Dr. Salhany noticed few objective signs of injury is important in evaluating his testimony but does not destroy its probative value. Wright v. Prudential Insurance Co. of America, 551 S.W.2d 697 (Tenn.1977).

In any event, Dr. Holladay conceded that a muscle injury in the region of the bursa could cause bursitis, that the cause of bursitis is unknown, and that appellee could have simultaneously incurred both bursitis and a muscle injury. Appellant’s assignments of error regarding the medical testimony are overruled.

Appellant next insists that there is no proof that appellee suffered an “injury by accident” as defined in Sec. 50-902(d), T.C.A.

An accident is an unexpected event, not designed although the act involved in the accident was intentional. An accident is not reasonably to be anticipated and is produced by an “unusual combination of fortuitous circumstances.” Brown Shoe Co. v. Reed, 209 Tenn. 106, 114, 350 S.W.2d 65, 69 (1961). Where the usual strain or exertion of work causes an unusual result, such an injury is “by accident” under sec. 50-902(d). A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1970).

In the case under consideration the evidence reveals that appellee had recently assumed a new job involving “heavier” work than she had engaged in before. She was performing the usual action of flinging a pair of overalls onto a rack when struck by a sudden pain. The facts of this case are similar to those in Modern Upholstered Chair Co. v. Russell, 518 S.W.2d 519 (Tenn.1974), in which the plaintiff suffered a back injury as the result of new and more strenuous duties. In this case, also, there is medical testimony sufficient to support the trial judge’s finding of a causal connection between appellee’s injury and her work. See Great American Indemnity Co. v. Friddell, 198 Tenn. 360, 280 S.W.2d 908 (1955).

Appellant complains that the proof shows that appellee quit her job voluntarily and that there is no proof that she is disabled. The record reveals that appellee’s departure from her job was not voluntary. In addition to the medical testimony, appel-lee’s testimony concerning her disability and her inability to work also supports the trial judge’s finding on this question. Gregory Co. v. Durdin, 537 S.W.2d 701 (Tenn.1976). Although appellant argues that appellee is in reality disabled as the result of some unknown mysterious disease, there is material evidence to support the trial court in its findings.

Appellant last attacks the trial court’s computation of disability. The final decree of the trial judge reads:

The Court further finds that the Plaintiff has earned as much as she was able to earn under the circumstances since December 10, 1974, and that she is entitled to be compensated for temporary partial disability based upon sixty-six and two-thirds percent (66⅜%) of the difference between [her weekly wage] and . the amount actually earned from December 10, 1974, to January 18, 1977, being the sum of Four Thousand One Hundred Twenty-three and 94/100 Dollars ($4,123.94).

Earlier the Memorandum of the Court had stated that

[if] the parties are unable to agree upon the facts necessary to make this computation, the case will be set for further hearing in that respect.

First, appellant claims that the trial judge computed disability not under Sec. 50-1007(b) for temporary partial disability but under 50-1007(a) for temporary total disability. A reading of the trial judge’s findings and a comparison of subsections (a) and (b) of Sec. 50-1007 leads to the obvious conclusion that the trial judge was following Sec. 50-1007(b).

Second, appellant argues that the trial judge left it to the parties to set the percentage of disability and erred in not finding the percentage of disability himself. It is clear that the trial judge meant for the parties to determine “the amount actually earned” by appellee from the date of her injury to the date of the trial. This was “necessary to make [the] computation” of compensation due. The trial judge did not ask the parties to set the percentage of disability. Likewise, the appellant is mistaken in its insistence that the trial judge must set a percentage of disability in all cases of temporary partial disability. Under Sec. 50-1007(b) the trial court makes its computations using the amount the employee is able to earn in his partially disabled condition, in this case the amount appellee actually earned.

Appellant’s assignments of error are overruled, and the judgment of the trial court is affirmed.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.


text:
    Arrol TOWNSEND et al., Plaintiffs-Appellants, v. CLOVER BOTTOM HOSPITAL AND SCHOOL et al., Defendants-Appellees.
    Supreme Court of Tennessee.
    Jan. 16, 1978.

      Woods & Woods by Larry D. Woods, Nashville, for plaintiffs-appellants.
    Assoc, of Trial Lawyers of America, ami-cus curiae.
    C. Hayes Cooney, Chief Deputy Atty. Gen., of counsel, Brooks McLemore, Jr., Atty. Gen., Nashville, for defendants-appel-lees.
   OPINION

FONES, Justice.

Plaintiffs appeal from the decree of the Chancery Court of Davidson County dismissing their complaint against an institution of the State of Tennessee, following the United States Supreme Court’s decision excluding State employees from the coverage of the Fair Labor Standards Act. That decision overruled a 1968 decision upholding limited coverage of state employees, based upon congressional authority to regulate interstate commerce.

On May 2,1973, plaintiffs filed their complaint alleging that, while inmates of Clover Bottom Hospital and School, they worked at institutional maintenance jobs and were paid hourly wage rates below the minimum required by the FLSA.

Plaintiffs sought recovery of the difference between the wages paid and the minimum wages provided by the FLSA and an additional equal sum as liquidated damages in accordance with the provisions of that Act.

Defendants’ motion to dismiss for lack of subject matter jurisdiction and sovereign immunity was overruled in February, 1973. In December, 1973, this Court affirmed the Chancellor and remanded the case to the trial court for further proceedings. Clover Bottom Hospital and School v. Townsend, 513 S.W.2d 505 (Tenn.1974).

In that decision we observed that the 1966 amendments to the Fair Labor Standards Act, which had brought within its coverage employees of a state hospital, institution or school primarily engaged in the care of the sick, the aged and the mentally ill, including those who resided on the premises had withstood constitutional attack in Maryland v. Wirtz, supra.

However, the decision in Wirtz expressly reserved the question of the availability to the states of the defense of sovereign immunity. Addressing that question, this Court cited Employees v. Missouri Public Health Department, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), wherein the United States Supreme Court held that employees of the State of Missouri were barred from maintaining an action against that State, in the Federal Courts, for violation of the Fair Labor Standards Act. While the majority of the Court refused to decide the issue of whether such action could be brought in state court, Mr. Justice Marshall, joined by Mr. Justice Stewart, was of the opinion that the issue should be decided, and, in the affirmative. This Court was of the opinion that when the United States Supreme Court confronted the issue in a future case the Court would agree with Mr. Justice Marshall. Since this Court was absolutely bound by Wirtz on the issue of the coverage of the Act and anticipated being bound by a future decision similar to the views expressed by Mr. Justice Marshall, on the issue of state court jurisdiction, we affirmed the Chancellor and remanded the case for further proceedings.

Defendants appealed to the United States Supreme Court and following dismissal of •that appeal and denial of its petition to rehear, the remand order of this Court was reinstated and executed on the 9th day of October, 1975.

In 1974 Congress again amended the FLSA and embraced within the coverage of the Act all employees of the States, except those holding public elective office, and those selected by such office holders to serve as staff members, or legal and policy advisers, etc. See 29 U.S.C. § 203 subsections (d) and (e)(2)(C).

In June, 1976, while this case was again pending in the Chancery Court of Davidson County and before trial on the merits, the United States Supreme Court rendered its decision in National League of Cities v. Usery, supra, wherein Maryland v. Wirtz, supra, was expressly overruled.

Defendants promptly moved in the Chancery Court to dismiss the complaint for failure to state a claim upon which relief could be granted relying upon Usery as having the effect of removing subject matter jurisdiction. The Chancellor granted defendants’ motion, dismissed plaintiff’s complaint and the present direct appeal is from that decree. We affirm.

Plaintiffs concede that Usery holds the 1974 amendments to the PLSA unconstitutional but insists that the reasoning employed by the Court does not apply to the 1966 amendments, and they remain valid. They argue that the limited number of state employees covered by the 1966 amendments should not invoke the Supreme Court’s concern of Federal intrusion upon state sovereignty whereas, coverage of most all public employees, enacted in 1974, obviously triggered that concern. Second, that the 1966 Amendments may be upheld as a valid exercise of the spending power of Congress, Article 1, Section 8, Clause 1, or may be upheld as an enforcement tool for the rights, privileges and immunities of a “suspect class” under Section 5 of the 14th Amendment.

In our opinion, the Usery decision exempts all state employees from Federal wage and hour regulation. By expressly overruling Wirtz, the prior decision upholding the constitutionality of the 1966 Amendments, those Amendments were invalidated.

As we understand the following portion of Usery, no other conclusion is tenable.

“Congress may not exercise that power so as to force directly upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made. We agree that such assertions of power, if unchecked, would indeed, as Mr. Justice Douglas cautioned in his dissent in Wirtz, allow ‘the National Government [to] devour the essentials of state sovereignty,’ 392 U.S., at 205, 88 S.Ct. 2017, and would therefore transgress the bounds of the authority granted Congress under the Commerce Clause. While there are obvious differences between the schools and hospitals involved in Wirtz, and the fire and police departments affected here, each provides an integral portion of those governmental services which the States and their political subdivisions have traditionally afforded their citizens. We are therefore persuaded that Wirtz must be overruled.” [Footnote omitted]. 426 U.S. at 855, 96 S.Ct. at 2475.

Justices Brennan, White and Marshall were convinced that the 1966 Amendments had been invalidated by the majority. Mr. Justice Brennan, writing for the minority says:

“The best I can make of it is that the 1966 FLSA amendments are struck down and Wirtz is overruled on the basis of the conceptually unworkable essential function test; . . . ” 426 U.S. at 880, 96 S.Ct. at 2487.

Plaintiffs seek to rely on the “law of the case” doctrine and res judicata, insisting that our 1974 decision in this case affirming the denial of defendants’ first motion to dismiss, was final and irrevocable. There is a distinguishing feature of this case, not found in any of the cases relied upon by plaintiffs. The validity of including employees of the State in the scope of the Fair Labor Standards Act, has involved a precarious Federal Constitutional question. It was not the prerogative of this Court in 1974, nor is it our prerogative at this time, to decide the law of the case. It is our duty to apply the latest pronouncements of the United States Supreme Court on Federal Constitutional questions. Before the merits of this case could be reached in the trial court, the application of the Fair Labor Standards Act to employees of the State was declared unconstitutional. The result of that decision was to eliminate, as a cause of action, this suit, or any suit, predicated on the inclusion of state employees within the scope of the FLSA.

Plaintiffs contend that we should give Usery prospective effect and validate their claims that accrued prior to the release of that decision. They argue that at the time their suit was filed, Wirtz was the law; and that reversal of this very strong precedent was “unforeseeable”. The filing of the suit at a time when Wirtz was the law is said to constitute action by plaintiffs in “justifiable reliance” on former law, one of the factors that have induced courts to depart from the general rule and apply overruling decisions prospectively only. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

The complaint alleges that the Clover Bottom Hospital and School is a state mental health facility primarily engaged in the care of mentally retarded persons who reside on the premises; that plaintiffs resided there and worked varying hours, in different jobs, primarily through the Vocational Placement Department at that institution.

The reasonable inferences to be drawn from the meager pleadings before us, insofar as they are relevant to this issue, are that the plaintiff inmates performed work that was either directly or indirectly in furtherance of the teaching function of the school; that the rather nominal wages paid were not intended by the State nor expected by the patients to be full compensation for services rendered; that insofar as the services exceeded in value the wages paid plaintiffs and others similarly situated, the difference was patient contribution for the cost to the State for room, board, patient care and education.

Plaintiffs did not allege that they entered Clover Bottom Hospital and School and performed the work made available to them in reliance upon the expectation that they would be paid in accord with the minimum hourly rates and overtime provision of the FLSA. Even if such allegations were made and evidence adduced in support thereof, plaintiffs would be faced with the reality that, after each plaintiff’s first pay period, reliance would have terminated. Justifiable reliance may not be predicated on the mere filing of a lawsuit but relates to the making of a contract or the acquisition of vested rights in reliance upon the law then in effect, with consequences that cannot be justly ignored when that law is overruled. For example, if, in this case, the State had acquiesced in the Wirtz decision and paid wages in accord with FLSA and sought to recover overpayments made to plaintiffs the equities would be reversed and plaintiffs might successfully invoke a prospective application of Usery.

We have carefully considered the other factors deemed relevant to the nonretroac-tivity question, as expressed in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and our recent case of Cumberland Capital Corp. v. Patty, 556 S.W.2d 516 (Tenn.1977), Opinion on Petition to Rehear.

It is our conclusion that the U.S. Supreme Court did not intend that its decision in Usery be applied prospectively. We think this is a proper case in which to apply the Blackstonian view that Usery was not new law but a pronouncement of what is, and has been, the true law, and that the unconstitutional intrusion upon state government by Congress conferred no rights, imposed no duties and is in legal contemplation, as inoperative as though it had never been passed.

It is significant to note that Mr. Justice Douglas wrote a strong dissent in Wirtz, wherein he said:

“But what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment . that it is in my view not consistent with our constitutional federalism.” 392 U.S. at 201, 88 S.Ct. at 2026.
“In this case the State as a sovereign power is being seriously tampered with, potentially crippled.” 392 U.S. at 205, 88 S.Ct. at 2028.

Contrary to plaintiffs’ assertion that overruling of Wirtz was unforeseeable, we think the identity of the dissenting justice and the content of the dissent foretold a short life span for that decision.

This record does not support the contention of plaintiffs that Winfield Dunn, Richard Treadway, David Ray and Gilbert Salter were sued individually. All assignments of error and arguments predicated on that assumption are overruled.

The decree of the Chancery Court of Davidson County is affirmed. Costs are adjudged against plaintiffs.

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

      . National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).

      . Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968).


text:
    STATE of Tennessee, Petitioner, v. John L. HATCHETT, Respondent.
    Supreme Court of Tennessee.
    Jan. 16, 1978.

      Brooks McLemore, Jr., Atty. Gen., William W. Hunt, III, Asst. Atty. Gen., Nashville, Howard Douglas, Asst. Dist. Atty. Gen., George Hymers, Dist. Atty. Gen., Lexington, for petitioner.
    David P. Murray, H. T. Etheridge, Jr., Jackson, for respondent.
   OPINION

FONES, Justice.

Defendant John L. Hatchett was indicted for larceny and concealing stolen property, two bird dogs. Defendant expressly waived his right to trial by jury and submitted his case to the trial judge for decision as to both guilt and punishment. He was convicted of concealing stolen property and sentenced to a minimum and maximum of 3 years in the State Penitentiary.

The Court of Criminal Appeals reversed the conviction and remanded the case on the ground that the State had not introduced evidence to prove that defendant had concealed the dogs with knowledge that they were stolen. On the State’s petition to rehear, that Court conceded that unexplained possession of recently stolen property may permit the trier of fact to draw the inference that the possessor of the property knew that it was stolen, but overruled the petition because, it was said, the State’s argument overlooked “passions which can be aroused in the breast of any healthy, red blooded, Tennessee sportsman where a good bird dog may be involved.”

A summary of the pertinent evidence introduced at trial follows:

The owner of the bird dogs, Thomas Overman, testified that on the afternoon of October 15, 1975, he returned home to find two boards missing from the floor of the building where he kept the dogs, and the dogs gone. The next day, Overman questioned defendant about his dogs and defendant told Overman that he had sold two dogs which might be Overman’s dogs to Fred Pirtle in Memphis the day before.

After separate telephone calls by both Overman and defendant to Pirtle in Memphis, Overman went to Memphis, repurchased the dogs for the $200.00 which Pirtle had paid for them, and returned to Lexington, where he swore out a warrant for defendant’s arrest.

Overman further testified that defendant paid him $500.00 for the expense of repurchasing his dogs and for his “trouble” getting the dogs back. Overman had agreed to drop the charges and defendant paid the court costs in the General Sessions Court. Overman originally paid $165.00 for the two dogs.

Defendant testified that he sold or traded approximately 150 dogs a year and that people whom he did not know would approach him about buying or trading dogs.

Defendant testified that, on the morning of October 3rd or 4th, he was preparing to go to Memphis to sell two setters and a pointer; that he had called Pirtle and arranged to meet him at 12:00 o’clock; that a man driving a white Chevrolet, 1961 or 1963 model, came to his house and offered to sell him two dogs for $125.00, but he bought them for $60.00.

On direct examination, defendant testified that he did not know the name of the man he bought the dogs from, but he thought he had “traded” with him before, up in Kentucky; that defendant had driven three or four thousand miles, “all through Mississippi and Kentucky,” looking for him, but had been unable to find him.

On cross-examination, defendant was asked if he had not told the Assistant District Attorney on the telephone that he had bought two dogs “over around Huntingdon somewhere.” Defendant’s response was this:

“I said the license number was 38, that’s from Huntingdon, Carroll County.”

Defendant offered no evidence that a search was made in Carroll County for the man who had sold him the Overman dogs, nor any reasonable explanation of why he drove three or four thousand miles in Mississippi and Kentucky looking for the alleged seller.

Defendant’s direct testimony was clearly to the effect that he had made arrangements to drive to Memphis before acquiring Overman’s dogs, for the purpose of offering three other dogs for sale to Pirtle. When asked on cross-examination about the other three dogs, he testified that on the way to Pirtle’s house, he sold one dog to a man in Braden, Tennessee, and another dog to a man in Ellendale. No explanation was offered for not taking all five dogs to Pirtle first, which seemed particularly called for since defendant had emphasized that he cut short negotiations for purchase of Over-man’s dogs sometime around 9:15 A.M. because he had to meet Mr. Pirtle at 12:00 o’clock in Memphis, casting doubt upon the question of whether he had time to make two stops and negotiate two sales. There was no corroboration of the alleged sales in Braden and Ellendale.

Defendant’s yardman corroborated his story, testifying that he had been working in the yard on the day the defendant purchased the dogs and took them to Memphis and that he had witnessed something that might have been a sale of dogs to Hatchett. The yardman was unable to give any details of the transaction nor could he describe the dogs or the automobile which brought them.

The defense introduced several witnesses who testified to defendant’s good reputation and that receipts were a rarity in transactions for non-pedigreed bird dogs. Throughout the trial, it was undisputed that the dogs which defendant sold to Pirtle belonged to Overman.

Conviction for concealing stolen property requires proof of the theft, defendant’s possession with knowledge that the goods were stolen, and concealment thereof. Possession of recently stolen property, if not satisfactorily explained, is a circumstance from which the trier of fact may draw an inference and find that the person in possession knew the property had been stolen. State v. Veach, 224 Tenn. 412, 456 S.W.2d 650 (1970); Tackett v. State, 223 Tenn. 176, 443 S.W.2d 450 (1969); see also Bush v. State, 541 S.W.2d 391 (Tenn.1976); Turner v. State, 541 S.W.2d 398 (Tenn.1976).

An unsatisfactorily explained possession of very recently stolen property may, in the light of surrounding circumstances, support a conviction of larceny, as well as supply the element of guilty knowledge for the offenses of receiving stolen property or concealing stolen property. See Tackett v. State, supra; Bush v. State, supra; Turner v. State, supra.

Defendant insists that the State did not show concealment of Overman’s dogs because defendant transported them openly in his truck to Memphis; that upon learning that Overman’s two bird dogs had been stolen, defendant promptly revealed the sale to Pirtle of two dogs, although denying any knowledge that they belong to Over-man.

The dogs were stolen after 6:30 A.M. October 15,1975. Defendant admitted that he was in possession of the dogs by 9:00 A.M. to 9:30 A.M. the same day.

Defendant almost immediately departed Lexington, Tennessee, for Memphis, for the purpose of selling the dogs.

The crime of concealing stolen property does not require an actual hiding or secreting of the property; it is sufficient to show any acts which render its discovery more difficult and prevent identification, or which will assist those stealing it in converting the property to their own use. Bates v. State, 516 S.W.2d 635 (Tenn.Crim.App.1974); Abbott v. State, 509 S.W.2d 524 (Tenn.Crim.App.1973); Jones v. State, 219 Tenn. 228, 409 S.W.2d 169 (1966).

The rapid transportation and sale of the dogs clearly provided sufficient evidence of intent to make discovery more difficult and to convert the property to defendant’s own use. The fact that defendant revealed the sale to Overman the next day, while admittedly a circumstance to be weighed in determining the truthfulness of his testimony, does not diminish the evidence of concealment inherent in the transportation to Memphis and sale of the dogs to Pirtle.

In addition to the discrepancies in the defendant’s exculpatory evidence herein mentioned, the trial judge could have considered the fact that defendant paid Over-man $500.00 shortly after Overman swore out the warrant against him as discrediting defendant’s testimony. An offer to compromise is admissible in criminal cases. E. g., Carter v. State, 161 Tenn. 698, 34 S.W.2d 208 (1931); Armes v. State, 540 S.W.2d 279 (Tenn.Crim.App.1976); Johnson v. State, 4 Tenn.Crim.App. 154, 469 S.W.2d 529 (1971). The compromise is admissible as a circumstance bearing on the consciousness of the guilt of the accused, to be given such weight as the trier of fact might see fit. Carter v. State, supra.

In our opinion, the evidence, both direct and circumstantial, clearly supports the conviction of concealing stolen property. It is not the function of either the Court of Criminal Appeals or this Court to reweigh evidence adduced at a criminal trial; a guilty verdict, approved by the trial judge, accredits the testimony of the State’s witnesses and resolves all conflicts in testimony in favor of the theory of the State. E. g., State v. Wilson, 556 S.W.2d 232 (Tenn. 1977); State v. Brown, 551 S.W.2d 329 (Tenn.1977); State v. Johnson, 541 S.W.2d 417 (Tenn.1976); State v. Sneed, 537 S.W.2d 699 (Tenn.1976); State v. Grace, 493 S.W.2d 474 (Tenn.1973).

In a case tried without a jury, the verdict of the trial judge is entitled to the same weight on appeal as a jury verdict. Webster v. State, 544 S.W.2d 922 (Tenn.Crim.App.1976); see United States v. Glover, 514 F.2d 390 (9th Cir. 1975).

The judgment of the Court of Criminal Appeals is reversed, the conviction and sentence of the trial court reinstated.

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

      . Pirtle testified and offered as an exhibit a receipt or bill of sale for Overman’s dogs dated October 15, 1975. Defendant’s explanation of his testimony that he bought and sold the dogs on October 3rd or 4th was that Overman had testified at an earlier hearing that his dogs were stolen on one of those dates.


author: MATHERNE, Presiding Judge (W. S.).

text:
    Patti Ruth COKE, Complainant-Respondent, v. Thomas McKellar COKE, Defendant-Petitioner, v. MEMPHIS LIGHT, GAS AND WATER DIVISION RETIREMENT AND PENSION SYSTEM, Garnishee-Petitioner.
    Court of Appeals of Tennessee, Western Section.
    Sept. 23, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.
    William B. Bell, Jr., Memphis, for garnishee-petitioner.
    Murphy & Ashlock, Memphis, for defendant-petitioner.
    James 0. Marty, Memphis, for complainant-respondent.
   MATHERNE, Presiding Judge (W. S.).

The circuit court judge approved execution by garnishment of payments due the defendant Thomas McKellar Coke from the pension fund administered by the garnishee Memphis Light, Gas and Water Retirement and Pension System and enjoined the garnishee from making any future payments to the defendant until further orders of the court.

By separate petitions, the defendant and the garnishee petition this Court for common law writ of certiorari asserting that the money payable to the defendant from the pension fund is exempt from execution, attachment and garnishment under the provisions of T.C.A. § 26-206, which statute provides, as follows:

26-206. State pensions. — All moneys received by a resident of the state, as a pension from the state of Tennessee, or any subdivision or municipality thereof, before receipt, or while in this hands ór on deposit in bank, shall be exempt from execution, attachment or garnishment, whether such pensioner is the head of a family or not. [Code 1932, § 7715.]

The complainant-respondent filed a motion in this Court for diminution of the record to include certain exhibits made a part of the record by the trial judge, which exhibits the complainant alleges establish as a fact that the defendant is not a resident of the state of Tennessee and that, therefore, the money payable to him from the pension fund is not exempt under T.C.A. § 26-206. The motion for diminution is granted and the exhibits are considered as being before this Court. These exhibits are copies of certain records of the Retirement and Pension System of M.L.G.&W. One exhibit shows the address of Mr. Coke as being 8476 East Chaparral Rd., Scotsdale, Arizona 85253. The complainant argues that this address renders Mr. Coke a nonresident of Tennessee as contemplated by T.C.A. § 26-206.

I.

The complainant-respondent Patti Ruth Coke obtained a divorce from the defendant Thomas McKellar Coke by decree dated May 28, 1976. That decree awarded judgment in favor of the complainant and against the defendant for $839.23 representing past due payments on a house note and unpaid alimony pending the lawsuit, plus $3,000 as attorney’s fees. The decree also awarded $80.00 per month as alimony in futuro.

A garnishment was issued and served upon the M.L.G.&W. Retirement and Pension System on August 6, 1976. The garnishee answered that the judgment debtor was a retired employee of M.L.G.&W., and that he received a pension from the Retirement and Pension System of that agency. The pension is allegedly paid on the 15th and last days of each month as follows: on the 15th day of the month he is paid $255.61, less $14.26 deducted for insurance premiums, and on the last day of the month he is paid $255.61, less $156.78 deducted by M.L.G.&W. Federal Credit Union. The garnishee further answered that by virtue of T.C.A. § 26-206, the payments were exempt from garnishment.

A second garnishment was served on the garnishee on September 8, 1976.

On motion of the complainant, the trial court ruled on the status of the pension payments. The court held that the pension fund was not exempt from execution by “attachment, garnishment or otherwise.” The court reasoned that under T.C.A. §§ 26-206 and 26-210 the legislature intended to protect the family, as well as a husband, from claims of third party creditors, and that it was not intended to shield the husband from claims for alimony and child support.

We disagree with the construction given these statutes by the trial judge. Section 26-206 clearly renders exempt from execution, attachment or garnishment all money received by a resident of the state as a pension from the state of Tennessee or any subdivision or municipality thereof. There is no question but that the pension fund under consideration falls within the exempt classification. T.C.A. § 26-210 states that “salary, wages or earnings” are subject to judgments and decrees for alimony and support payments, no mention is made of payments from pension funds of the type exempted by T.C.A. § 26-206. We further note that T.C.A. § 26-518 specifically permits the garnishment of the “salaries, wages or other compensation” due employees of the state or any county or municipality, thereby rendering those payments subject to Section 26-210. The language of T.C.A. § 26-206 is plain, clear and unambiguous. Under these circumstances the words of the statute as written will be given full effect and there is no need to resort to rules of construction in order to reach the legislative intent. Insurance Company of North America v. Long (1965), 215 Tenn. 642, 389 S.W.2d 245; Turner v. Harris (1955), 198 Tenn. 654, 281 S.W.2d 661. The courts must take such a statute as written; not as the court would have written it. Jackson v. Jackson (1948), 186 Tenn. 337, 210 S.W.2d 332.

II.

The determinative issue is whether, under T.C.A. § 26-206, Thomas McKellar Coke is a resident of the state of Tennessee. On this issue the trial judge ruled, as follows:

The Court is of the further opinion that the issue of residency is not herein decided at this point, and the Court makes no determination of the defendant Thomas McKellar Coke’s residency at this time.

We hold that the trial court erred in this respect. Under T.C.A. § 26-206, it was necessary to determine if Mr. Coke was a resident of Tennessee before it could be determined if the payments to him from the pension fund were subject to garnishment. If he is a resident of Tennessee, the payments are not subject to garnishment; if he is not a resident of Tennessee, those payments are subject to garnishment. The issue necessarily arises as to what the word “resident” means as used in T.C.A. § 26-206.

Legal residence means the same thing as domicile and a person may have two or more actual residences but only one domicile or legal residence. Bearman v. Camatsos (1964), 215 Tenn. 231, 385 S.W.2d 91. A domicile or legal residence once acquired by a person remains his domicile until another domicile is established. Bruce v. Bruce (1949), 32 Tenn.App. 222, 222 S.W.2d 228. As pointed out in Keelin v. Graves (1913), 129 Tenn. 103, 165 S.W. 232, there are many definitions of domicile which seem simple enough in form, but they are not easy to apply to the varying facts of cases as they arise. The Court in Keelin summarized, as follows:

We think the substance of our cases is that, in order to destroy the status of a party as the possessor of a domicile once acquired in this State, it must appear that he has removed into another State for the purpose of making it his home, and that his removal for purposes of business, though long continued, will not have the effect of changing his domicile, if he has the purpose of returning to this State upon the completion of the business, but that a mere floating purpose to return to [the] State at some time will not be sufficient to destroy the presumption that his change of residence imported also a change of domicile.

We conclude that the word “resident” as used in T.C.A. § 26-206 refers to legal residence or domicile, rather than actual residence. It would be extremely harsh to hold that a pensioner absent from the state for purposes other than the establishment of a legal residence or domicile in another state would thereby lose the benefits of the exemptions allowed a resident of the state. The fact that Mr. Coke has an address in Scotsdale, Arizona does not render him a legal resident of that state. A determination of Mr. Coke’s domicile is essential to the proper application of T.C.A. § 26-206.

If Mr. Coke is domiciled in Tennessee the stay order should not have been issued because the pension payments would be exempt from garnishment. The administrators of the pension fund are before the court as garnishee only. That which is barred by direct attack, namely, subjecting these pension payments due a domiciliary of Tennessee to garnishment, may not be accomplished by injunction. T.C.A. § 26-206.

If Mr. Coke is not domiciled in Tennessee the stay order may or may not be valid. The contract or agreement between the pension fund and the beneficiaries thereunder is not in the record before this Court. There is no showing that the contract was before the trial court. The test of the right of a judgment creditor to a judgment against a garnishee is the existence in the judgment debtor of a right to sue the garnishee and recover the sum or property sought to be subjected to garnishment. J. G. Mahan Motor Co. v. Lyle (1934), 167 Tenn. 193, 67 S.W.2d 745; Dickson v. Simpson (1938), 172 Tenn. 680, 113 S.W.2d 1190. Absent the contract between the debtor, Mr. Coke, and the garnishee pension fund, neither the trial court nor this Court can know the rights that Mr. Coke could have asserted against the garnishee. For these reasons also the injunction was improvidently granted.

The petitions for certiorari are granted and the assignments of error are sustained. The judgment of the trial court is reversed and the injunction or stay order is dissolved. The garnishments levied are enforceable if the proof should establish that the judgment debtor, Thomas McKellar Coke, was not domiciled in the state of Tennessee on the dates that the garnishments were levied. Should the proof establish that on those dates Mr. Coke was domiciled in Tennessee, the garnishments will be dismissed. This lawsuit is remanded to the Circuit Court sitting in Shelby County, Tennessee for further proceedings as the law directs. The cost in this Court is adjudged against the complainant-respondent, Patti Ruth Coke.

NEARN, J., and THOMAS, Special Judge, concur.


author: DUNCAN, Judge.

text:
    Mark E. MELLONS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 5, 1977.
    Certiorari Denied by Supreme Court Jan. 23, 1978.

      William W. Gilley, R. Wayne Culbertson, Kingsport, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Jerry Beck and Phyllis H. Fitzwilson, Asst. Dist. Attys. Gen., Blountville, for appellee.
   OPINION

DUNCAN, Judge.

The appellant-defendant, Mark E. Mel-lons, was prosecuted in the Sullivan County Criminal Court under a two-count indictment charging burglary of a vehicle and grand larceny. He was convicted of the offense of burglary of a vehicle, T.C.A. § 39-905, and received a penitentiary sentence of not less than four years nor more than six years. In this appeal, he questions the sufficiency of the evidence, the delayed entry into evidence of a statement made by him at the scene of the crime, and the court’s charge. We find no merit to the defendant’s complaints.

While the defendant assigns errors on the alleged insufficiency of the evidence, he does not seriously question the undisputed facts developed at the trial which were that a Kingsport police officer, on January 1, 1976, at approximately 10:40 p. m., observed a tractor trailer truck parked on the lot of the Empire Truck Center. Steam was coming out of the truck, indicating that the motor was then running. When the officer approached the truck, steam was no longer being emitted and the motor was not running. Upon investigation, the officer found the defendant sitting inside the truck. The defendant’s presence in the truck was also observed by another officer who had arrived on the scene. Testimony showed that the door of the vehicle had been locked previous to the burglary. The officers found that the dash had been pried open, the starter switch had been torn out, and wires were hanging out of the dash of the truck. Obviously, the truck had been hot-wired. A flashlight and screwdriver were found on the floorboard of the truck. The hood of the truck was warm. The defendant “blurted out” a statement to the officers, saying, “I was wrong, I was wrong, I was only going to try it out and see if I could go through the gears on it.”

The defendant did not testify but offered his sister as a witness in an effort to prove that he was intoxicated earlier in the evening. While the defendant does not argue in his brief that his actions were influenced in any degree because of any alleged intoxication, we would note that other witnesses testified that he was not drunk, and that he walked and talked without difficulty. The fact that the defendant was able to accomplish the detailed task of hot-wiring the truck was a factor for the jury to consider as to the degree, if any, of his intoxication.

The defendant argues that the evidence failed to show any intent on his part to steal anything inside the truck. We disagree. Without dispute, the truck was broken into and entered. It was hot-wired and the motor was apparently started. All preparations had been made to drive the truck away, and except for the arrival of the police, that would have taken place also. Under those facts, the jury was entitled to infer that the defendant broke and entered the truck with intent to steal it. Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975).

“The intent required for the conviction of burglary may be inferred from many circumstances and guilt may be established by circumstantial evidence as other offenses.” Bollin v. State, 486 S.W.2d 293, 296 (Tenn.Cr.App.1972).

The fact that no goods were actually stolen from the truck is insignificant because, “Consummation of the intent to steal is not necessary to complete the crime of burglary.” Petree v. State, 530 S.W.2d 90, 94 (Tenn.Cr.App.1975).

We find that the evidence does not preponderate against the verdict of the jury and in favor of the defendant’s innocence. State v. Townsend, 525 S.W.2d 842 (Tenn.1975).

Also, it cannot be said that the jury’s verdict indicated passion, prejudice, or caprice, which the defendant maintains, because the punishment assessed by the jury in this case was within the limits allowed by law for this offense. T.C.A. § 39-905; Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

Next, the defendant contends that he was prejudiced because of the manner in which his on-the-scene statement was admitted into evidence. When defense counsel initially attempted to cross-examine the officer regarding the defendant’s on-the-scene statement, the trial court tentatively ruled that the officer would not be allowed to testify about it but left the question open for further consideration; however, the defendant’s attorney withdrew the question that triggered this discussion and stated that he wanted to proceed. Nevertheless, in later trial proceedings, the court, after hearing the exact substance of this testimony from the officer at a jury-out hearing, reconsidered and then allowed the defendant’s attorney to elicit this testimony from the officer before the jury. The defendant’s attorney accomplished his purpose in this regard, and we find no prejudice has resulted to the defendant.

Finally, the defendant’s complaint about the trial court’s charge to the jury is not tenable. He made no objection to the court’s charge and offered no special requests for instructions. Thus, his belated complaint must be rejected. Pope v. State, 528 S.W.2d 54 (Tenn.Cr.App.1975). Nevertheless, we have chosen to review the court’s charge and find that a full and accurate charge was given regarding both counts of the indictment. The court charged the law applicable to the offenses of burglary of a vehicle, grand larceny, petit larceny, temporary use of a motor vehicle, and attempt to commit a felony. The defendant again argues the question of intent under this assignment, but we have already ruled adverse to his contention on that question.

We overrule the defendant’s assignments of error, and the judgment of the trial court is affirmed.

We note that the Honorable John K. Byers, a member of this panel, did not participate in the decision of this case.

GALBREATH, J., concurs.