text:
    Barbara HODGE, Appellant, v. Orel E. CONLEY et al., Respondents.
    No. KCD 28206.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      R. Lynn Myers, St. Joseph, for appellant.
    Theodore M. Kranitz, St. Joseph, for respondents.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

By this suit for partition, plaintiff seeks a sale of certain real estate and the distribution to her as a tenant in common of one-fourth of the proceeds. Defendant Orel E. Conley resists on the theory that he is owner of the entire title as the surviving tenant by the entirety. The trial court, sitting without a jury, found for defendant Orel. Plaintiff appeals.

Title, to the extent here pertinent, originated by a warranty deed from Velva Boyd to Orel Edmund Conley and Ora Elizabeth Conley dated February 3, 1967. That deed designated the grantees Orel and Ora as “husband and wife.” That deed was executed and delivered pursuant to a real estate contract dated February 1,1967, which also designated Orel and Ora as “husband and wife” and was signed by both of them. The purchase price was $15,000, of which $6,000 was financed by a loan from Provident Savings & Loan Association of St. Joseph.

On June 29, 1972, Ora executed a quit claim deed naming herself and two children by an earlier marriage (one of those children being the plaintiff) as joint tenants. That deed which was introduced in evidence by plaintiff recites: “Grantor states that on February 3, 1967, when she and Orel Edmond Conley acquired title to this realty from Velva V. Boyd, they were not yet man and wife, even though their title deed described them as such. They were later married in Miami, Oklahoma on 6/16/67.”

Ora died August 1, 1973. At the time of her death the purchase money loan had been paid down to $820.23, which balance was paid by Orel subsequent to Ora’s death. Also after her death, the quit claim deed dated June 29, 1972, was filed for record, and it was then that Orel learned of that conveyance for the first time.

Orel testified that he and Ora had gone through two marriage ceremonies, both in Miami, Oklahoma. He stated that the first of those occurred on June 7, 1966. He testified that a document of some sort accompanied that ceremony but “[i]t wasn’t a legal certificate.” Whatever that document was, it has become lost. Sometime during the course of the next year some question arose as to the legality of the marriage. Orel and Ora discovered that they did not have a legal marriage license, and despite efforts to do so they were unable to find the certificate which they received at the time of the 1966 ceremony. Because “[i]f there was something unlegal about it, that we wanted to make it right,” the parties then returned to Miami, Oklahoma, and went through a second ceremony. A certificate of marriage of the second ceremony dated June 16,1967, was placed in evidence.

Orel further testified that from and after June, 1966, he and Ora lived together as husband and wife. He further testified that at the time of the property purchase in February of 1967, he fully believed that he and Ora were lawfully husband and wife. After the filing of the present lawsuit, Orel went to Miami, Oklahoma, to check with the people who were witnesses to the 1966 marriage or anyone that had anything to do with the marriage, but was not able to locate any of those persons.

Somewhat restated, the points made by plaintiff on this appeal are that the trial court erred (1) in finding that Orel and Ora took title as tenants by the entirety, because they were not legally married at the time of the conveyance to them; (2) in permitting Orel to testify concerning a marriage in 1966, because his testimony was barred by the Dead Man’s Statute, § 491.-010, RSMo 1969; and (3) in finding that it would be inequitable to deprive Orel of one-half of the property without first requiring a suit to reform the 1967 deed. The crucial issue presented by these points taken as a whole is whether the trial court properly found that the parties were married when they received the title deed on February 3, 1967. If they were then married, that deed to them from Velva Boyd unquestionably created an estate by the entirety, and Orel is now entitled to the whole.' Moreover, if it be true that the parties were legally married in February, 1967, then the alternative ground for decision by the trial court becomes immaterial and plaintiff’s third assignment of error drops out of the case.

On the key issue thus defined, as to whether the parties were legally married at the time of the 1967 deed, the following finding by the trial court assumes dominant importance:

“[0]n February 3, 1967, * * * as far as this land was concerned they [Orel E. Conley and Ora Elizabeth Conley] were married, either de facto or by common-law. . . . ”

Plaintiff attacks that finding on two grounds: a) that Orel’s testimony, upon which the finding rests at least in part, was inadmissible under the Dead Man’s Statute; and b) that the finding in question was inconsistent with the court’s further finding that “on June 16,1967, defendant Orel Conley and Ora Elizabeth Conley were married in Miami, Oklahoma.”

So far as Orel’s testimony is concerned, the bar of the Dead Man’s Statute was waived by plaintiff’s introduction into evidence of the quit claim deed dated June 29, 1972, which contained a statement by the deceased respecting the question of marriage now in issue. Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869 (1890); Galvin v. Knights of Father Mathew, 169 Mo.App. 496, 155 S.W. 45 (1913).

Furthermore, the court’s finding does not stand on Orel’s testimony alone. This finding finds strong support in the recital in the 1967 contract for deed which was signed by Orel and which declared that the parties were “husband and wife.” Cases holding such declarations to be competent evidence of marriage include Red Eagle v. Cannon, 201 Okl. 511, 208 P.2d 557 (1949); Ridgeway v. Logan, 205 Okl. 603, 239 P.2d 778 (1952); and Linsey v. Jefferson, 68 Okl. 156, 172 P. 641 (1918).

Even though Ora later contradicted that declaration by the recital in the 1972 quit claim deed, her confirmation of marriage in the earlier deed is entitled to more weight than her denial in the later deed. Vann v. Vann, 186 Okl. 42, 96 P.2d 76, 78 (1939); 55 C.J.S. Marriage § 45, p. 907. Moreover, Ora’s declaration of non-marriage in the quit claim deed states merely a layman’s legal conclusion which is not necessarily correct. For example, Ora could well have been unfamiliar with the Oklahoma recognition of common law marriage; and it would be too much to assume that she was aware of the subtle difference between a defect which renders a marriage only voidable rather than wholly void. In the latter respect, see 52 Am.Jur.2d Marriage § 103, p. 954, et seq.

With respect to the trial court’s finding that the parties were married on June 16,1967, that finding cannot be taken to conflict with the parties having previously been married prior to February, 1967. It is entirely reasonable and in accordance with experience that parties may desire to remove any question as to a possible defect in their marital status by going through yet another ceremony which would make the matter unimpeachable. 52 Am.Jur.2d Marriage § 57, p. 911; Adger v. Ackerman, 115 F. 124 (8th Cir. 1902). The interpretation placed by plaintiff upon this finding must be rejected on the ground that it unnecessarily and unjustifiably attempts to create a conflict in the findings. By fair interpretation, the trial court found that the parties were married prior to February 3,1967, but that they underwent an additional ceremonial marriage on June 16, 1967.

An element of uncertainty has been introduced in this case by the trial court’s reference to the earlier marriage being either “de facto” or by common law. Although the term “de facto” is not of common usage with respect to marriages, the trial court probably had in mind the substantial line of Missouri cases which hold that, despite the outlawing of common law marriages in Missouri by virtue of § 451.-040(5), RSMo 1969, nevertheless a presumption of a ceremonial marriage arises upon a showing of open cohabitation, declaration and conduct by the parties and general reputation, despite inability to show a marriage license or any record of the issuance of one. Thomson v. Thomson, 236 Mo.App. 1223, 163 S.W.2d 792 (1942); Rone’s Estate v. Rone, 218 S.W.2d 138 (Mo.App.1949); Suddeth v. Hawkins, 202 S.W.2d 572 (Mo.App.1947); Hartman v. Valier & Spies Milling Co., 356 Mo. 424, 202 S.W.2d 1 (1947); Smith v. Smith, 237 S.W.2d 84 (Mo.1951); In re Estate of Tomlinson, 493 S.W.2d 402 (Mo.App.1973); Weyrauch, “Informal and Formal Marriage—An Appraisal of Trends in Family Organization,” 28 U.Chi.L.Rev. 88, 1. c. 105.

In any event, Oklahoma, where the 1966 marriage occurred and presumably where the parties then lived, recognized at that time and still recognizes' common law marriages. Ridgeway v. Logan, supra; Vann v. Vann, supra; Daniels v. Mohon, 350 P.2d 932 (Okl.1960); Rath v. Maness, 470 P.2d 1011 (Okl.1970); Marshall v. State, 537 P.2d 423 (Okl.Cr.App.1975). The evidence here is sufficient, especially aided by the strong presumptions in favor of marriage, to support the trial court’s finding that a marriage did occur prior to February 3, 1967. With respect to the matter of the presumption of marriage, see Waddingham v. Waddingham, 21 Mo.App. 609 (1886), (quoted in Sanders v. Central Building Materials Co., 43 S.W.2d 863 [Mo.App.1931]) where the court held:

“The presumption of marriage is in favor of the innocence and good morals of the parties concerned. The law, looking upon men and women as moral members of society, will presume that when a man and woman are cohabiting, they are husband and wife, and will not presume they are man and mistress; this is based on the first presumption of morality and innocence.”

The same presumption exists in Oklahoma as well as generally. Tower v. Towie, 368 P.2d 488 (Okl.1962); Linsey v. Jefferson, supra; 52 Am.Jur.2d Marriage § 133, p. 983.

The judgment of the trial court is supported by substantial evidence, it is not against the weight of the evidence and it does not erroneously declare or apply the law. It is therefore entitled to being sustained on appeal. Murphy v. Garron, 536 S.W.2d 30 (Mo. banc 1976).

Affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R._ G._ T._, Respondent, v. Y._ G._ T._, Appellant.
    No. KCD 28463.
    Missouri Court of Appeals, Kansas City District.
    Nov. 1, 1976.

      Louis Wagner, Kansas City, for appellant.
    Vincent F. Igoe, Jr., Liberty, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

The wife has appealed from a decree entered in a dissolution of marriage proceeding. Her dissatisfaction with the decree is limited to that portion awarding custody of the two minor children born of the marriage to the husband. The children were girls, age 4 and 2 respectively.

The wife takes the position that the court erred in awarding custody of the two minor children to the husband because they were girls of tender years; particularly so, since the “evidence failed to show that” she “was unfit or that her misconduct had any effect on the welfare of the children”.

A brief recital of certain evidence is very telling as to why the trial court arrived at its decision to give the husband custody of the two minor children. Shortly before the parties separated the wife became enamored with another man. The amour was so overpowering that she left her husband and children. The children remained with the husband. After leaving, the wife made no effort to see the children for approximately six weeks. During the six week interim she told her husband that he could have custody of the children. She then began to vacillate and eventually concluded that she wanted custody of the children.

The husband evidenced the traits of a good parent throughout. He shouldered the responsibility of making a home for the children despite the wife’s absence. A “social service worker” from the Clay County Family Service Office conducted a “home study” for the court regarding the type of home and care provided the children by the husband. She testified “the house was well kept” and “located in a neighborhood well adapted to young children”, and that the little girls “seemed to be normal, happy, little girls.”

The desirability of awarding custody of children of tender years, especially girls, to their mother should not be indulged to the extent of excluding consideration of all other relevant matters. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975). The dominant concern when determining custody is the “best interests” of the child or children. Section 452.375, RSMo Supp. 1973; In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975); and Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). Once the trial court has spoken on the subject, an appellate court should not disturb a custody order unless the “best interests” of the child or children require a different disposition. In re Marriage of Powers, supra, at 952. Deference should be given to a trial court’s assessment of what serves the “best interests” of a child or children in custody matters and its decision in that respect should be affirmed on appeal unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

It is manifest that the trial court concluded that the husband’s attitude towards the children was one of parental love and parental responsibility. On the other hand, the wife’s attitude towards the children, though not lacking in parental love, was lacking in parental responsibility. In view of the disparity between the husband’s and wife’s sense of parental responsibility for the children, coupled with undisputed testimony that the children were being well cared for by the husband, the trial court concluded that the “best interests” of the children would be served by leaving them with the husband.

In the instant case no justification exists for this court to substitute its judgment for that of the trial court and therefore it defers to the trial court’s decision that the “best interests” of the two minor children will be achieved by placing them in the custody of the husband.

Judgment affirmed pursuant to Rule 84.-16(b).

All concur.


author: PER CURIAM. DROWOTA, Judge. BROCK, Justice

text:
    EATHERLY CONSTRUCTION COMPANY, Appellant, v. DeBOER CONSTRUCTION, INC., et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    H. Michael Bennett, John J. Hollins, Nashville, for appellant.
    H. Frederick Humbracht, Dearborn & Ewing, Nashville, for appellees.
   OPINION

PER CURIAM.

After a comprehensive review and analysis of the record in this case, we have concluded that the Court of Appeals correctly decided the issues presented on appeal. Accordingly, the judgment of the Court of Appeals is affirmed.

The opinion of the Court of Appeals will be for publication as an appendix to this opinion. Mr. Justice Brock dissents and files a separate opinion.

APPENDIX

OPINION

DROWOTA, Judge.

Eatherly Construction Company, plaintiff-appellant, is appealing an order of the Chancery Court of Davidson County granting summary judgment and dismissing the defendants-appellees, Jack P. DeBoer Associates, Inc., First Wisconsin Mortgage Company and John J. Poehlman, Trustee (hereinafter referred to as appellees).

Eatherly Construction Company contracted with DeBoer Construction, Inc. (a defendant below, but not a party to this appeal) to perform grading, excavating, and related work on improvements being built upon a multi-family housing project known as Country Place, owned by appellees. The gravamen of plaintiff-appellant’s complaint is that the defendants owe it a sum of $27,443.17 for labor and materials furnished for improvements on the above project. Eatherly Construction Company last performed work under the above contract on January 29,1973. A notice of lien was filed by plaintiff-appellant on September 24, 1973. On December 20, 1973, a complaint was filed to enforce the asserted lien. A writ of attachment was issued and levied on the property on December 21, 1973. On June 25, 1974, construction on the project was 98% complete. The plaintiff-appellant filed a second notice of lien on the property on July 3,1974. The project was completed and turned over to its owner on August 13, 1974. Plaintiff-appellant amended his complaint of December 20, 1973, on August 26, 1974, so as to allege completion of the project on June 25,1974, and the filing of a notice of lien on July 3, 1974.

The appellees filed a motion for summary judgment on December 3, 1974. The Chancery Court granted this motion as a matter of law on March 3, 1975.

The plaintiff-appellant assigns the following as error:

The Court erred in granting the Defendants’ Motion for Summary Judgment and in holding that it was necessary for complainant, following the amendment to the complaint, to again attach the same property when the property was properly before the Court pursuant to the previous attachment.

The sole issue before us is whether the initial attachment was effective as to the amended complaint. T.C.A. § 64r-1115, which governs this case, states:

Every journeyman or other person, contracted with or employed to work on the buildings, fixtures, machinery, or improvements, or to furnish materials for the same . . . shall have this lien for his work or material; provided that within ninety (90) days after the demolition and/or building or improvement is completed, or the contract of such laborer, mechanic, furnisher, or other person shall expire, or he be discharged, he shall notify, in writing, the owner of the property on which the building is being erected or improvement is being made . that said lien is claimed; and said lien shall continue for the period of ninety (90) days from the date of said notice in favor of such subcontractor, journeyman, furnisher, mechanic, or laborer, and until the final termination of any suit for enforcement brought within that period.

The enforcement of a mechanic’s and materialman’s lien is a statutory right, and strict compliance with T.C.A. § 64-1115 is required. McDonnell v. Amo, 162 Tenn. 36, 34 S.W.2d 212 (1930); Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866 (1956); Bird Bros. v. Southern Surety Co., 139 Tenn. 11, 200 S.W. 978 (1917). Notice of the claimed lien must be given to the proper owner of the property within the ninety day period specified by the statute. If the plaintiff fails to comply with the requirement, his lien is void. Conger Lumber & Supply Co. v. White, 17 Tenn.App. 206, 66 S.W.2d 999 (1933). Further, the institution of the suit upon the claimed lien must be within the ninety day period following the date of notice. If a suit is not instituted and a writ of attachment is not issued and levied within this period then plaintiff’s lien is void. Knoxville Structural Steel v. Jones, 46 Tenn.App. 518, 330 S.W.2d 559 (1959).

Eatherly Construction Company argues that its writ of attachment of December 21, 1973, was valid and that its amended complaint of August 26, 1974, did not give rise to a new cause of action. This being so, the plaintiff-appellant claims the antecedent attachment was not dissolved but rather was incorporated into the amended complaint thus precluding the need for a second attachment.

This argument is rejected on two grounds: (1) the writ of attachment issued and levied on December 21, 1973, was not valid and (2) the appellant’s argument is contrary to the time limitations of T.C.A. § 64-1115.

Plaintiff-appellant had no cause of action upon which it could base its writ of attachment of December 21, 1973. T.C.A. § 64-1115 requires that notice be given to the owner of the property subject to the lien within 90 days of claimant’s completion of work on that property. Eatherly Construction Company last performed work on the multi-family housing project on January 29, 1973. Eatherly Construction Company filed a notice of lien on September 24, 1973. Because the plaintiff did not comply with the notice requirements of the statute, his lien was void and he had no cause of action. Conger Lumber & Supply Co. v. White, supra; Bird Bros. v. Southern Surety Co., supra. An ancillary attachment is a mere incident to the suit in which it is issued. If it is not based on a cause of action, it, the ancillary attachment, is necessarily void. Maxwell v. Lea, 53 Tenn. 247 (1871).

T.C.A. § 64-1126 requires that a lien be enforced by attachment. Further, T.C.A. § 64-1115 requires that that attachment be issued and levied within ninety days of the date of notice. Knoxville Structural Steel v. Jones, 46 Tenn.App. 518, 330 S.W.2d 559 (1959). The attachment of December 21, 1973, which plaintiff-appellant seeks to incorporate into his amended complaint filed August 26, 1974, is void. Eath-erly Construction Company did not have issued and levied a writ of attachment after its second notice of lien. The Chancery Court properly granted the defendants’ motion for summary judgment on the ground that the plaintiff did not comply with the requirements of T.C.A. § 64-1115.

The second ground for upholding the decision of the lower court is the time limitations of T.C.A. § 64-1115. The statute requires that notice be given within ninety days of either plaintiff’s completion of work on the property or the completion of all work on the property. Following such notice, the statute requires that a suit be instituted and a writ of attachment issued and levied within ninety days. Knoxville Structural Steel v. Jones, supra. Thus the statute requires that a writ of attachment be issued and levied within 180 days of either plaintiff’s completion of work upon the property subject to the lien or the completion of all work upon that property. The plaintiff-appellant did not comply with this requirement. To allow the appellant to amend his complaint so as to include an attachment not levied within the time limitations of T.C.A. § 64-1115 is to allow the plaintiff to do indirectly that which he could not do directly under T.C.A. § 64-1115. This would necessarily violate the legislative intent expressed in that statute.

The cases cited by the appellant for the proposition that such an amendment should be allowed are not in point. They do not involve a court allowing a plaintiff to do something by amendment which he could not do directly under T.C.A. § 64-1115. Appellant further argues that to require a second attachment in this instance is to require a plaintiff to perform an unnecessary act. Because the first attachment was a nullity, it can hardly be said that the second attachment was unnecessary. Further, T.C.A. § 64-1115 requires this act in order that there be a cause of action. “The Legislature who created this right also has the right to provide any necessary duty on the part of the furnisher of materials who has not contracted with the owner to do what it thinks is reasonable before that materialman or what not secures a judgment or collects from the property.” Jordan v. Dietz, supra, 201 Tenn. at 82, 296 S.W.2d at 869.

Plaintiff-appellant’s assignment of error is overruled, and the judgment of the trial court in granting appellees’ motion for summary judgment and dismissing the case as to them is affirmed. The costs of this appeal are taxed against the appellant.

Affirmed and remanded.

SHRIVER, P. J., and TODD, J., concur.

BROCK, Justice

(dissenting).

I respectfully dissent.

Admittedly, the notice of attachment filed on September 24,1973, was ineffective because not filed within 90 days following the last performance by plaintiff of work on the job on January 29,1973. But, in my view, it does not follow that the writ of attachment issued and served on December 21, 1973, pursuant to the complaint filed on December 20,1973, is “void,” as held in the opinion adopted by the majority.

No claim is made that the attachment itself was faulty in some particular, such as, improper description of the property or defective service of the writ. The only alleged “infirmity” of the attachment is that the complaint filed on December 20, 1973, could not have been sustained, due to the ineffective notice of lien, if the plaintiff had been forced to trial. I agree that if plaintiff had been put to trial upon the original complaint he would have failed, not because of any defect in the attachment, but because he could not prove one of the facts essential to establish his right to a lien, i. e., that he had given a timely notice of lien. Accordingly, the attachment would have been dissolved and the property released from the writ. But, the fact is that plaintiff was not thus put to trial and the attachment was not dissolved, but remained in full force and effect, retaining the property in the custody of the court.

Neither do I agree that in order to enforce a mechanics’ lien the subject property, if already in the custody of the court, must again be attached within 90 days after plaintiff last worked on the job or 90 days after the completion of the project. Of course, under the statute an attachment can be too late to be effective, but, until today’s decision, there was no necessity for again attaching property which was already in custodia legis by virtue of an earlier attachment. Nicely v. Nicely, 8 Tenn.App. 134 (1928); See also Reed v. Fuller, 16 Tenn.App. 47, 65 S.W.2d 841 (1932) cert. denied.

Obviously, the Legislature did not foresee the case we have before us, i. e. one in which the property was already in the custody of the court prior to the filing of the notice of lien. But since the only office of the writ of attachment is to bring the property into the custody of the court so that it may be subjected to the decree of the court, I can see no reason to have an additional writ of attachment issued and served. Accordingly, I would hold that following the second notice of lien, filed on July 3, 1974, and the amendment to the complaint, filed on August 26, 1974, there was no necessity to have another attachment filed and served, since the subject property was already in court by virtue of the attachment filed and served on December 21, 1973, which remained undissolved and fully effective.'

I am authorized to state that Mr. Justice FONES joins in this dissent.


author: BROCK, Justice.

text:
    VELSICOL CHEMICAL CORP. et al., Appellants, v. Mr. and Mrs. Leonard ROWE et al., Appellees, v. CHATTANOOGA COKE & CHEMICALS CO. et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 25, 1976.
    James W. Gentry, Jr., Gentry & Boehm, Chattanooga, for appellants.
    Phillip A. Fleissner, W. K. Snouffer, Jr., Chambliss, Bahner, Crutchfield, Gaston & Irvine, Chattanooga, for appellees Rowe and others.
    Spears, Moore, Rebman & Williams, Humphreys, Hutcheson & Moseley, Morgan, Garner & Wood, Chattanooga, for appellees Chattanooga Coke & Chemicals Co. and others.
   OPINION

BROCK, Justice.

I

The original plaintiffs, residents and homeowners of the Alton Park area of Chattanooga, sued Velsicol Chemical Corporation for damages allegedly caused them by pollutants emitted by Velsicol from its chemical manufacturing plant in Alton Park. It is alleged in the complaint that Velsicol’s emissions contaminated the air and water in the Alton Park area and constituted a nuisance, and also that Velsicol had been guilty of trespass in depositing identifiable quantities of chemicals and other pollutants upon plaintiffs’ properties. Plaintiffs also alleged that Velsicol had been guilty of intentional disregard of the law and of court injunctions in continuing the alleged nuisance, thus entitling plaintiffs to awards for punitive damages.

After filing an answer generally denying the plaintiffs’ allegations, Velsicol filed a third-party complaint against five third-party defendants, alleging that each of them operated a plant in the Alton Park area, that during the period alleged' in the original complaint each of them emitted pollutants of the air and water, and that by reason of these facts the third-party defendants are liable to Velsicol for “whatever amount of recovery is made by said plaintiffs.”

The five third-party defendants filed motions to dismiss the third-party complaint which were sustained by the trial court upon the grounds that the third-party complaint (1) failed to state a claim against the third-party defendants upon which relief could be granted because the third-party plaintiff and third-party defendants were not “joint tortfeasors” and, thus, the third-party plaintiff was not entitled to contribution or indemnity from third-party defendants and (2) the third-party complaint was not permissible under Rule 14.01 of the Tennessee Rules of Civil Procedure. Velsi-col, the third-party plaintiff, appeals from the order of dismissal.

II

Rule 14.01 of the Tennessee Rules of Civil Procedure provides, in relevant part, as follows:

“At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”

The Committee Comment to Rule 14 observes that:

“Rule 14 allows a defendant to bring in, as a third-party defendant, any new party who is or may be liable to defendant for all or part of the plaintiff’s claim against the defendant . . . thus mak[ing] it possible for ultimate liability to be determined in a single suit where there are several parties whose rights and liabilities are interconnected.”

The language of Rule 14 is identical to the federal impleader rule. See Rule 14, Federal Rules of Civil Procedure. Federal decisions construing this language clearly hold that if there is a substantive right to indemnity or contribution among joint tort-feasors under applicable state law, the procedure for its enforcement is provided by Rule 14. 3 Moore’s Federal Practice, par. 14.11, at 14-319 (3d ed. 1974). See, e. g., Rouley v. State Farm Mut. Auto. Ins. Co., 235 F.Supp. 786 (W.D.La.1964); Bosin v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 183 F.Supp. 820 (E.D.Wis.1960), aff’d 297 F.2d 583 (7th Cir. 1961).

We hold that Rule 14.01, Tennessee Rules of Civil Procedure, does authorize a third-party complaint based upon a claim of one tortfeasor for indemnity or contribution from other alleged “joint tortfeasors.”

III

The third-party complaint, if liberally construed, may be considered to allege a claim based upon theories of indemnity or contribution. Although these terms are often used interchangeably in many court decisions. there is, of course, a distinct and substantial difference between them. Contribution distributes the loss among the tortfeasors by requiring each to pay his proportionate share. Indemnity shifts the entire burden from one tortfeasor, who has been compelled to pay it, to the shoulders of another who should ultimately bear the loss instead.

Indemnity generally arises from an express or implied contract. The right to indemnity may, however, arise in the absence of an agreement and by operation of law to prevent an unjust result. This may be due to the relation of the parties to one another and the consequent duty owed, e. g., master and servant, or it may be because of a significant difference in the kind or quality of their conduct, e. g., “active negligence” and “passive negligence” or mere failure to remedy or discover the negligence. It is our opinion that the third-party plaintiff has not alleged facts sufficient to give rise to a possible right of indemnity against the third-party defendants.

IV

Does the third-party complaint allege a right to contribution from the third-party defendants? Essentially, it alleges that they, too, polluted the air and water, thus contributing to the damages, if any, suffered by plaintiffs.

The common law rule was that there could be no contribution between those who were regarded as “joint tortfeasors,” when one had discharged the claim of the injured plaintiff. Rhea v. White, 40 Tenn. 121 (1859); Cohen v. Noel, 165 Tenn. 600, 56 S.W.2d 744 (1933); Prosser, supra, § 50 and n. 38. The rule was originally adopted by the English courts in Merryweather v. Nixon, 101 Eng.Rep. (K.B.1799). Apparently, the basis of the rule was the unwillingness of the court to allow anyone to found a cause of action upon his own deliberate wrong, an aspect of the “unclean hands” doctrine. When, in the United States, the codes of civil procedure permitted joinder of defendants who were merely negligent, such defendants came to be called “joint tortfeasors,” and the reason for the rule against contribution was lost to sight. The great majority of American jurisdictions applied the rule of no-eontribution to all situations, even those in which independent, but concurrent, acts of negligence had contributed to a single resulting injury. A small minority of states — including Tennessee — eventually came to a contrary conclusion, allowing contribution among joint tortfeasors without the aid of legislation. Davis v. Broad St. Garage, 191 Tenn. 320, 232 S.W.2d 355 (1950); Huggins v. Graves, 210 F.Supp. 98 (E.D.Tenn.1962), aff’d, 337 F.2d 486 (6th Cir. 1964); Prosser, supra, § 50; Restatement (Second) of Torts, Explanatory Notes § 886A, comment a at 195 (Tent. Draft No. 16, 1970).

The earliest Tennessee case on the question of contribution between joint tort-feasors is Rhea v. White, supra, wherein the Court denied contribution, indicating that if the plaintiff had not been an intentional tortfeasor he might have recovered. The same year, however, Anderson v. Saylors, 40 Tenn. 551 (1859), seemingly laid down a general rule against either contribution or indemnity among all joint tortfeasors.

Ever since the original rule was introduced, however, attempts have been made to carve out exceptions to it or to otherwise limit its prohibition. The first real breach of the strict rule in Tennessee occurred in Central Bank and Trust Co. v. Cohn, 150 Tenn. 375, 264 S.W. 641 (1924), involving the unintentional conversion of a note; the plaintiff seeking contribution from his fellow converters. This case clearly rejected the rule of no contribution among joint tortfeasors. Later cases further rejected the no-contribution rule. As noted by the late Chief Justice Burnett in Davis v. Broad St. Garage, supra, 232 S.W.2d at 357:

“Our cases make a clear distinction between wilful and intended wrongs in which the general rule of noncontribution is recognized and wrongs resulting from purely negligent acts, mistakes or other unintentional breaches of the law in which contribution is allowed.”

In Huggins v. Graves, supra, the federal district judge concluded that:

“. . . the right of contribution exists under Tennessee law as between joint tortfeasors in a negligence action in the absence of willful or wanton negligence upon the part of the party seeking contribution. Moreover, this result accords with reason and, as stated by the Tennessee Supreme Court in the Davis case, supra, ‘justice, right, and equity demand this conclusion.’ ” 210 F.Supp. at 108.

Any remaining uncertainty regarding the extent of the right of contribution among joint tortfeasors in Tennessee was dispelled by the 1968 enactment of the Tennessee Uniform Contribution Among Tortfeasors Act. T.C.A. §§ 23-3101 — 23-3105 (Supp. 1975). Excluding intentional tortfeasors, the Tennessee Uniform Act provides that the right to contribution arises upon the satisfaction of two general conditions. First, there must be “two (2) or more persons . . . jointly or severally liable in tort for the same injury to person or property . . . .” T.C.A. § 23-3102(a). Secondly, one of those jointly or severally liable must have paid more than his pro rata share of the common liability. T.C.A. § 23-3102(b).

Obviously, the meaning of the phrase “jointly or severally liable” is of primary importance in determining the right of contribution under our law.

An early Tennessee case, Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S.W. 93 (1903), stated that the test of joint liability is “whether each of the parties is liable for the entire injury done.” It would appear that the Court was begging the question:

“If they [the defendants] are joint tort feasors, each one is responsible for the damage resulting from the acts of all the wrongdoers, and they may all be sued severally or jointly; but, if they are not joint tort feasors, each is liable only for the injury contributed by him, and can only be sued in a separate action therefor.” Id. 78 S.W. at 94.

The factual situation presented in the Swain case was markedly similar to that in the instant case. The plaintiff-landowners brought suit against two neighboring copper smelting plants, alleging that the noxious fumes emitted from their respective hearths became “indistinguishably mingled,” creating “a great nuisance.” The Court, however, refused to acknowledge that the harm done to the plaintiffs’ land was indivisible. Rather, the Court said:

“Proof of the extent and capacity of the several plants causing the damages complained of, the tonnage of ores treated by each of them, the time each has been in operation, their comparative proximity or distance from the plaintiff’s lands, the usual condition of the air currents in that locality, and many other facts and circumstances, will show with substantial certainty the extent of the injury inflicted by each of the defendants . . . .” Id. at 99.

Apparently, the Court was not troubled by the fact that it would be extremely difficult, if not impossible, for the plaintiff to apportion his damages among the defendants. The rationale of the Swain decision is shown by the following:

“ ‘. . . [i]f it were otherwise . one defendant, however little he might have contributed to the injury, would be liable for all the damages caused by the wrongful acts of all the other defendants, and he would have no remedy against the latter, because no contribution could be enforced by the tort feasors’ Id. at 97, quoting Miller v. Highland Ditch Co., 87 Cal. 430, 25 P. 550 (1891). [Emphasis added.]

Such was the state of our law regarding contribution among tortfeasors at the time Swain was decided. Since that time, however, as above indicated, we have developed not only a common law right of contribution among tortfeasors but the legislature has passed a uniform act specifically granting such a right. Thus, the no-contribution rationale of the Swain case has collapsed, so that, we look elsewhere for the import of the phrase “jointly or severally liable.”

In Waller v. Skeleton, 31 Tenn.App. 103, 212 S.W.2d 690, cert. denied, 186 Tenn. 433, 211 S.W.2d 445 (1948), it was no defense for a defendant, who drove over the crest of a hill on the wrong side of the road in the face of congested oncoming traffic and collided with the oncoming car in which plaintiff was riding, that a motorist who was driving behind plaintiff’s car negligently collided with plaintiff’s car, contributing to the plaintiff’s injuries. Since the following motorist’s negligence was concurrent with the defendant’s negligence, the Court reasoned, each would be jointly and severally liable for all of plaintiff’s injury.

Relying upon various legal authorities, the Court said:

“A defendant’s negligent act, in order to be the proximate or legal cause of plaintiff’s injuries, need not have been the whole cause or the only factor in bringing them about. It was enough if such act was a substantial factor in causing them.” Waller v. Skeleton, supra, 212 S.W.2d at 696, citing Restatement of Torts §§ 431, 433, 435; 1 Street, Foundations of Legal Liability, 109-123; Jackson v. B. Lowenstein & Bros. Inc., 175 Tenn. 535, 136 S.W.2d 495.

The Court continued:

“Where there were two causes which proximately contributed to plaintiff’s injuries, for only one of which defendant was responsible, and with the other of which neither he nor the plaintiff was chargeable, defendant is liable for all of such injuries to the same extent as if they had been caused by his negligence alone.” Waller v. Skeleton, supra, 212 S.W.2d at 696.

While not relying on the “single, indivisible injury” theory, discussed infra, the Court did decide that where successive impacts with different negligently operated vehicles contributed to or combined to cause the aggregate harm suffered, the plaintiff is entitled to a joint and several recovery against both tortfeasors. This principle was again recognized in Yellow Cab Co. v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17 (1958), wherein the Court decided that one of two alleged joint tortfeasors could not complain of dismissal of the case against the other since each was jointly and severally liable.

Holder v. Martin, 219 Tenn. 165, 407 S.W.2d 461 (1966), however, presents facts relevant to the question of divisibility of harm from separate and distinct sources. There, the defendants were involved in two separate and distinct automobile accidents with plaintiff’s decedent. After the first accident, in which the decedent sustained severe injuries, decedent had been placed in the ambulance of the second defendant. En route to a hospital, a second collision occurred. The evidence was “hotly disputed” as to whether the victim died prior to the second accident. The Court refused to hold that the defendants were joint tort-feasors since there were two separate and distinct accidents at different times and places.

It has been suggested that joint torts be divided into four basic categories, viz., (1) the actors knowingly join in the performance of the tortious act or acts; (2) the actors fail to perform a common duty owed to the plaintiff; (3) there is a special relationship between the parties (e. g., master and servant or joint entrepreneurs); and (4) although there is no concert of action, nevertheless, the independent acts of several actors concur to produce indivisible harmful consequences. 1 Harper & James, Law of Torts, § 10.1 (1956). While acknowledging that the last category, which may be termed independent, concurring torts, may not fall within the traditional definition of “joint torts,” the authors note an increasing tendency in judicial decisions and among legal commentators to impose joint and several liability for such wrongs and thus to establish such torts as “joint” in their practical or legal effect. See Schoenly v. Nashville Speedways, Inc., 208 Tenn. 107, 344 S.W.2d 349 (1961); Waller v. Skeleton, supra; Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952); Phillips Petroleum Co. v. Hardee, 189 F.2d 205 (5th Cir. 1951); Jackson, “Joint Torts & Several Liability,” 17 Tex.L.Rev. 399 (1939); Prosser, “Joint Torts & Several Liability,” 25 Calif.L.Rev. 413 (1937); Wigmore, “Joint-Tortfeasors & Severance of Damages: Making the Innocent Party Suffer Without Redress,” 17 Ill.L.Rev. 458 (1923).

The primary concern in dealing with independent, concurring torts is the proper extent of the liability of such wrongdoers, i. e., when should tortfeasors who do not act in concert, but whose acts combine to produce injury to the plaintiff, be held individually liable for the entire damage?

It has been suggested that the proper approach should be to look to the combined effect of the several acts:

“If the acts result in separate and distinct injuries, then each wrongdoer is liable only for the damage caused by his acts. However, if the combined result is a single and indivisible injury, the liability should be entire. Thus the distinction to be made is between injuries which are divisible and those which are indivisible.” Jackson, “Joint Torts & Several Liability,” supra, at 406.

The requirement of “indivisibility” can mean either that the harm is not even theoretically divisible, as death or total destruction of a building, or that the harm, while theoretically divisible, is single in a practical sense in that the plaintiff is not able to apportion it among the wrongdoers with reasonable certainty, as where a stream is polluted as the result of refuse from several factories.

In Landers v. East Texas Salt Water Disposal Co., supra, the plaintiff sued the defendant salt water disposal company and an oil company jointly and severally for the damage resulting when they independently deposited salt water in his lake. The court, apparently assuming that neither defendant acting alone would have caused the entire damage, extended the liability of such wrongdoers by holding them, in effect, to be jointly and severally liable, with the reservation that any one defendant could reduce his liability by showing the amount of damage caused by his acts only, or the amount that was caused by other defendants. The Texas court said:

“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.” 151 Tex. 251 at 256, 248 S.W.2d at 734.

More recently, in Michie v. Great Lakes Steel Division, National Steel Corp., 495 F.2d 213 (6th Cir. 1974), residents of La-Salle, Ontario, brought a nuisance action in federal court, claiming that air pollutants from defendants’ manufacturing plants across the Detroit River caused diminution of the value of their property, impairment of their health, and interference with the use and enjoyment of their land. Each plaintiff claimed at least $11,000 joint damage against these defendants, charging that the defendants were jointly and severally liable.

Relying upon Michigan automobile cases involving successive collisions, the Court reasoned that in any claim for relief there was a manifest unfairness in “putting on the injured party the impossible burden of proving the specific shares of harm done by each [defendant],” quoting Landers v. East Texas Salt Water Disposal Co., supra. The Court concluded that the Michigan Supreme Court would extend the principle of the automobile collision cases to the Michie facts and held that joint and several liability is applicable in nuisance actions.

It is our conclusion that the rule stated and applied in the Landers and Michie cases is more consonant with modern legal thought and pragmatic concepts of justice than that applied by this Court three quarters of a century ago in Swain, supra. Accordingly, we depart from Swain in this respect and adopt the rule of Landers and Michie for determining joint and several liability when an indivisible injury has been caused by the concurrent, but independent, wrongful acts or omissions of two or more wrongdoers, whether the case be one of negligence or nuisance. We hold that the third-party complaint may stand as a claim for contribution by one tortfeasor from other alleged joint tortfeasors.

V

The remaining question is whether impleader of third party defendants should be allowed prior to the payment by the original defendant of more than his pro rata share of the common liability. See T.C.A. § 23-3102(b).

The federal courts have consistently held that the “may be liable” language of Rule 14 may accelerate a right of contribution among joint tortfeasors even though such a right is “inchoate, unascertainable and contingent until [the joint tortfeasor] pays more than his proportionate share of the common liability.” 3 Moore’s Federal Practice, par. 14.08, at 14-245 (3d ed. 1974). See, e. g., Bosin v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., supra; Vaughn v. Terminal Transport Co., Inc., 162 F.Supp. 647 (E.D.Tenn.1957). There must, of course, be some showing that under the applicable state law, the third party may be liable to defendant. 3 Moore’s Federal Practice, par. 14.10, at 14-284; Ray v. Compania Naviera Continental, 25 F.R.D. 211 (D.Md.1960); Handley v. Tecon Corp., 172 F.Supp. 565 (N.D.N.Y.1959). The allegations of the third-party complaint need not show that recovery is a certainty; the complaint should be allowed to stand if, under some reasonable construction of the facts which might be advanced at trial, recovery would be possible. 3 Moore’s Federal Practice, par. 14.10, at 14-285.

Thus, in Huggins v. Graves, supra, the federal district court approved the acceleration of Tennessee’s substantive right of contribution, quoting with approval from Moore’s Federal Practice:

“ ‘The fact that contribution may not actually be obtained until the original defendant has been cast in judgment and has paid does not prevent impleader; the impleader judgment may be so fashioned as to protect the rights of the other tort-feasors, so that defendant’s judgment over against them may not be enforced until the defendant has paid plaintiff’s judgment or more than his proportionate share, whichever the law may require.’ ” Huggins v. Graves, supra, at 104, quoting 3 Moore’s Federal Practice, par. 14.11, at 14-322-14-323.

We hold this to be the proper rule and that the third-party complaint is not premature.

The judgment of the trial court dismissing the third-party complaint is reversed and the cause remanded for further proceedings. Costs incurred upon this appeal are taxed against the third-party defendants.

FONES, HENRY and HARBISON, JJ., and HYDER, Special Judge, concur.

      . The 1939 Uniform Contribution Among Tort-feasors Act was phrased in terms of “joint tortfeasor,” stating that:
      “For purposes of this act the term ‘joint tort-feasors’ means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” Uniform Contribution Among Tortfeasors Act § 1 (1939).
      This definition and the term “joint tort-feasors” were withdrawn from the revised Uniform Contribution Among Tortfeasors Act of 1955 which was the basis for the Tennessee Uniform Act. The reason for the omission was stated by the Commissioners:
      “There are still a few jurisdictions in which those who act independently and not in concert, as for example two colliding automobile drivers, cannot always be joined as defendants in the same action. In those jurisdictions the tendency is to use the term ‘joint tortfeasor’ to refer only to those who can be joined. The term is not indispensable to the Act and the change in meaning might perhaps be confusing in those states.” Uniform Contribution Among Tortfeasors Act § 1, note 3 (1955).

      . The Court specifically declined to rule on the question of indivisible harm, but referred, in passing, to a case which held that:
      “. . .in the absence of all proof, it may be presumed that the several tort feasors contributed equally to the damages inflicted, the effect of which would be to throw upon the defendant tort feasor the burden of showing that others contributed to the injury, and the extent of such contribution.” Swain, supra, at 99.

      . The term “concurrent wrongdoers” has been defined:
      “Concurrent, as distinguished from joint negligence arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or cooperates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage.” 1 Shearman & Redfield, Negligence, § 122 (6th ed. 1913).

      . Of course, this right is subject to the exceptions stated in T.C.A. § 23-3102, e. g. one who intentionally causes or contributes to an injury has no right of contribution.


author: SHRIVER, Presiding Judge.

text:
    STATE of Tennessee, Plaintiff-Appellee, v. Edward Ray ORANGE, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Jan. 2, 1976.
    Certiorari Denied by Supreme Court March 22, 1976.

      R. A. Ashley, Jr., Atty. Gen., Nashville, J. William Pope, Jr., and William C. Koch, Jr., Asst. Attys. Gen., Nashville, for plaintiff-appellee.
    Charles Kilgore, Tracy City, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

This is an appeal by Edward Ray Orange from a decree entered February 3, 1975 by Honorable Paul A. Swafford, Judge of the Circuit Court of Marion County, Tennessee, affirming the action of the Juvenile Court in transferring said cause to the Circuit Court for a hearing and, after an extended hearing and arguments of counsel, a decree was entered directing that the defendant-appellant be transferred to the Criminal Court for trial as an adult, pursuant to T.C.A. § 37-234. From the foregoing decree, defendant has appealed to this Court and has assigned errors.

Proceedings Below

As is stated in the Reply Brief of counsel for the State, the Honorable E. D. Hughes, Judge of the Juvenile Court of Marion County, on February 1, 1974, following a hearing on January 23, 1974, entered an order pursuant to T.C.A. § 37-234 directing that the appellant be transferred to the Sheriff to be tried as an adult. On February 4, 1974, appellant filed a notice of appeal to the Circuit Court. On July 25,1974, the appellant filed a plea in abatement seeking to quash the indictment returned against him by the Marion County Grand Jury. On October 23, 1974, following a hearing during which the State agreed that the indictment was void, the Marion County Circuit Court quashed the indictment. Finally, on February 3, 1975, based on the record in the prior proceedings, and following another hearing, the Marion County Circuit Court affirmed the action of the Juvenile Court transferring the appellant to be tried as an adult. The appellant excepted, prayed for, and was granted an appeal to this Court.

Defendant-appellant, Edward Ray Orange, is charged by the State with the crime of First Degree Murder. At the time of the alleged crime, he was more than seventeen years old but had not reached his eighteenth birthday. At the time of his arrest and trial, he was more than eighteen years old.

Assignments of Error

There are two assignments, as follows:

“1. There was no competent, material, evidence or reasonable grounds to support the judgment of the Court as required by T.C.A. § 37-234[a](4) that appellant committed the delinquent act alleged; that he was not amenable to treatment or rehabilitation; was not committable to an institution for the mentally retarded or ill; and the interest of the community require that the child be placed under legal restraint or discipline.
2. The Court erred in failing to give defendant a fair and impartial trial in violation of his constitutional rights by arbitrarily ruling in favor of the State on the grounds that the State could not appeal his decision and not on law and the evidence as required.”

The Facts

As is revealed by’ the transcript of the record before the Juvenile Court and the evidence introduced in the Circuit Court after the case was transferred there, Vernon Dixon, who testified in the case, went with Keith Van Hooser to a pool hall in Tracy City at about 1:00 A.M. on August 2, 1973, where they were joined by several other young men. While some of them were playing cards, he heard Randall Van Hooser and defendant’s brother, Douglas Orange, talking about going to Mr. William Dodson’s store and burglarizing it. After the plans were made, these young men, including the defendant, drove to Van Hooser’s trailer where they changed cars, after which the witness Dixon, the defendant, Edward Ray Orange, and his brother, Douglas Orange, and Randall Van Hooser drove to Dodson’s store and all except Van Hooser got out of the car. Van Hooser then drove the car down the road and turned around to come back. According to Dixon’s testimony, Douglas Orange kicked down the glass door to Dodson’s store, whereupon, the witness and appellant entered and appellant tried unsuccessfully to open the cash register and, finally, he, Dixon, and appellant picked up some bologna, some bread and several cartons of cigarettes and left the store. Douglas Orange, at the time, was outside armed with a sawed-off shotgun. After the witness and appellant had gone outside and were about to cross the road, pistol shots were fired and the witness, Dixon, ran and climbed a bank on the other side of the road and made his way to the home of a relative some distance away.

It developed that Mr. Dodson, the owner of the store, had heard noises downstairs and, while his wife called the Sheriff’s office, he came- to the upstairs back door with his pistol and, seeing several persons below apparently loading items into their car, he fired six shots before he was hit by a blast from a shotgun and killed.

People living near the scene of the crime remembered seeing the appellant’s brother and Dixon walking toward Jasper from the direction of the store between 7:00 and 8:00 A.M. after the incident.

Dixon testified that he saw Edward Ray Orange later on the following day and was told by him that he, Orange, barely escaped and he did not know what happened to his brother. Dixon afterwards saw appellant’s brother at the Van Hooser trailer and he, Douglas Orange, was bragging that he had killed the old man at the store and cautioned his listeners to be quiet about it.

Dixon described the appellant and his brother as having scratches on them, apparently from running through brush, and this condition was verified by other testimony.

The two brothers left Marion County and were found in Florida sometime later, where they were arrested and brought back to Tennessee.

There was evidence that part of the shotgun was found under some brush near the store and the other matching parts were found at the store along with the discharged shell, and said shotgun was later identified as belonging to Douglas Orange.

The Applicable Law and Our Conclusions

While we feel very strongly that appeals in the nature presented by this case should go to the Court of Criminal Appeals, nevertheless, under the law as it exists today, the appeal comes to this Court. In re Houston, 221 Tenn. 528, 428 S.W.2d 303, 307 (1928). In that case, it was said:

“The case would go from the trial court to the Court of Appeals where the hearing would be de novo with a presumption of correctness of the trial court’s finding.”

In Newberry v. Newberry, 493 S.W.2d 99 (Tenn.App.1978), it was said that this type of appeal requires the Appellate Court to re-evaluate the evidence and to enter an order contrary to that of the lower Courts if it appears that the Trial Court has erred in his findings.

In State of Tenn. v. Jones, 220 Tenn. 477, 418 S.W.2d 769 (1966), in an opinion by Judge Chattin, it appears that the defendant was indicted after he reached the age of eighteen fqr-a burglary he allegedly committed before he reached that age. In said case, it was held that the jurisdiction of the Juvenile Court is to be determined by the age of a child at the time of the commission of the alleged delinquency rather than by his age at the time the proceedings were instituted against him and that the mere fact the proceedings were begun after the defendant reached the age of eighteen years did not deprive the Juvenile Court of original jurisdiction since the offense was committed before he reached the age of eighteen. It was further said that,' once jurisdiction is acquired by the Juvenile Court of a delinquent, jurisdiction continues until the child reaches majority.

We are convinced that the record in the instant case contains sufficient proof of probable cause to believe that Edward Ray Orange committed the delinquent act alleged, thus, satisfying the requirements of T.C.A. § 37-234. Also, in view of the fact that the defendant Edward Ray Orange is shown to have a record of previous delinquencies and the Opinion expressed by the Juvenile Judge that he was not amenable to rehabilitation in the present available facilities, we think the question in this regard raised in Assignment No. 1 is shown to be without merit.

We are asked to determine whether a Juvenile Court can retain jurisdiction over a minor until he or she reaches the age of twenty-one, or does that jurisdiction cease at the age of eighteen under the law as it now stands.

Chapter 189, Public Acts of 1971, is an amendment to Section 37-203, T.C.A., said amendment providing as follows:

“BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Section 37-203, is amended by adding the following subsection:
(c) When jurisdiction has been acquired under the provisions of this chapter, except as provided in Tennessee Code Annotated, Sections 37-236 and 37-237, such jurisdiction shall continue for the purposes of this chapter until the child shall have attained his majority. Whenever a child is adjudged a dependent and neglected, or an abandoned, or unruly or a delinquent child under the provisions of this chapter, the court may in its discretion retain jurisdiction and control of such child, in accordance with the provisions of this chapter, until he or she shall have reached the age of twenty-one (21) years.”

The foregoing provision applies except where jurisdiction has been acquired under Section 37-236 which deals with an abandoned child, and Section 37-237 entitled: “Commitment of child to department of correction — Alternatives—Custody—Hearing-Appeal — Discharge—Controversy.”

Also, it is to be noted particularly that said Section 37-203 specifically provides:

“Whenever a child is adjudged a dependent and neglected, or an abandoned, or unruly or a delinquent child under the provisions of this chapter, the court may in its discretion retain jurisdiction and control over such child, in accordance with the provisions of this chapter, until he or she shall have reached the age of twenty-one (21) years.” [underscoring supplied]

In the case at bar, the Juvenile Judge exercised his discretion of transferring this case to the Circuit Court for trial and the Circuit Judge affirmed that decision. Thus, whether the Act be construed as granting discretionary jurisdiction over the delinquent minor until he reaches the age of twenty-one or that such jurisdiction terminates at eighteen, became immaterial in view of the fact that the Juvenile Court, in the exercise of its discretion, relinquished that jurisdiction to the Circuit Court.

It results that Assignment No. 1 is overruled.

At one point in the proceedings the Trial Judge stated to the District Attorney that, up to that point, he thought that the State had not produced enough evidence to sustain its position that the defendant should be bound over to the Grand Jury and dealt with as an adult. In view of this statement, counsel for the defendant assigns as Error No. 2 that the Court erred in failing to give defendant a fair and impartial trial in violation of his constitutional rights by arbitrarily ruling in favor of the State on the grounds that the State could not appeal his decision and not on the law and evidence as required.

Following the above mentioned statement of the Court, in the course of the trial there was other evidence introduced and extensive argument by counsel for the State and the defendant, at the conclusion of all of which the Trial Judge entered his judgment and order in which it is recited:

“ . . . And it further appearing to the Court that there are reasonable grounds to believe that the said Edward Ray Orange committed the aforesaid delinquent act of Murder in the First Degree of Willie Dodson and that the said Edward Ray Orange is not amenable to treatment or rehabilitation as a juvenile through available facilities and that the said Edward Ray Orange is not committable to an institution for the mentally retarded or mentally ill and that the interest of the community requires that the said Edward Ray Orange be held under legal restraint. .
IT IS; THEREFORE, ORDERED ADJUDGED AND DECREED that the judgment of the Juvenile Court be and the same is hereby affirmed to which action the defendant excepts and prays an appeal to the next term of the Court of Appeals sitting in Nashville, which appeal the Court grants under the condition the defendant will within thirty days file an appeal and appearance bond or paupers oath in lieu of same and files his bill of exceptions within ninety days after the entry of this Order. The defendant, Edward Ray Orange, will remain under the same bond pending the appeal.”

As noted in Newberry v. Newberry, supra, this type of appeal requires the Appellate Court to re-evaluate the evidence and enter an order contrary to that of the lower Courts if it appears that the Trial Court has erred in his findings which, of course, also means that this Court should enter an order affirming the Trial Court if the law and evidence support same.

From the decree of the Trial Court, as above quoted, it is evident that the Trial Judge came to the conclusion that there was sufficient evidence before him to sustain that decree and, in the absence of a showing to the contrary, we must conclusively so presume.

It results that Assignment No. 2 is overruled.

All assignments being overruled, the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author:
POPE, Justice. STEAKLEY, Justice
      McGEE, Justice

text:
    Jacquelyn Layne WILEY, Petitioner, v. Kelly SPRATLAN, Respondent.
    No. B-5707.
    Supreme Court of Texas.
    July 14, 1976.
    Rehearing Denied Sept. 29, 1976.
    M. Eldred Smith, Longview, for petitioner.

      Curtis L. Owen, Dist. Atty., George M. Conner, III, Asst. Dist. Atty., L. Michael Thompson, Tyler, for respondent.
   POPE, Justice.

The courts below ordered the termination of the parent-child relationship between Mrs. Jacquelyn Wiley and her four-year-old daughter. Tex.Civ.App., 529 S.W.2d 616. We reverse the judgments of the courts below and render judgment denying the termination.

Kelly Spratlan, as the Supervisor of Welfare of Smith County, instituted this termination suit against both the father and mother, but the father filed an affidavit of relinquishment and defaulted. Only Mrs. Wiley, the mother, has contested the suit for termination. The only basis for termination asserted by Spratlan for the Welfare Department is this part of Section 15.02 of the Family Code:

“A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
* * * * * *
(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
* * * and
(2) termination is in the best interest of the child.”

The trial court found that the mother failed to comply with Section 15.02(1)(E) during the period from July 17, 1973, to July 16, 1974, and that it was in the best interest of the child to terminate the parent-child relationship under Section 15.-02(2). Both elements are essential to the judgment. The findings of fact and the evidence do not support the judgment of termination.

In February of 1973 the Wileys were engaged in a divorce proceeding. On February 22, 1973, they delivered the temporary possession of their child to the Child Welfare Unit and the Unit then requested each parent to contribute $33.00 toward the support of the child while she lived in a foster home. According to the findings, Mrs. Wiley became delinquent in the amount of $273.00 during the one-year period but during that same time she was able to earn a total of only $1050.00 plus an unknown amount of tips for an additional two weeks. The undisputed proof shows additionally that during January, February, and March of 1974 she obtained lodging in exchange for her services as a cleaning woman in an apartment complex. She borrowed sums of money from her sisters for sustenance and her parents brought her canned goods and clothing. She was able to keep a small savings account of $500.00.

The trial court found as a fact that Mrs. Wiley paid $33.00 in August, 1973, during the first month of the one-year period after her agreement with the Welfare Unit. She attempted to make a payment of $30.00 by money order in April of 1974 which was not received, and she paid $30.00 in May and $30.00 in July. It was during January, February, and March that she earned only her rent as a cleaning lady. The undisputed proof further showed that she sent Easter, Christmas, and birthday gifts, as well as some clothes to her baby. This proof of income and contributions is all of the evidence in support of the sole basis for termination, namely, Mrs. Wiley “failed to support the child in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition.”

The required period of nonsupport commenced not sooner than some time after August 6, 1973, which defeats the one-year period mandated by the Family Code. This was the holding in our recent decision in Cawley v. Allums, 518 S.W.2d 790 (Tex.1975). In that case the question was whether a father had failed to support his child during a period of two years which was required before a child could be taken from a parent for adoption under section 6(a) of article 46a, Tex.Rev.Civ.Stat.Ann. This is the provision interpreted in Cawley:

. . or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, .

We ruled that two years meant twenty-four months and not nineteen months, and the new Family Code has carried forward this interpretation of the former law. Section 15.02(1)(E) of the Family Code provided for termination if:

(1) the parent . (E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition.

The new Family Code omits the words “contributed substantially” found in Section 6(a) of Article 46a, and it reduced the time period of nonsupport from twenty-four months to one year. The substitution of the new phrase “in accordance with his ability” for the words “commensurate with his financial ability” does not support an interpretation that the Legislature intended to change the rule which was announced in Cawley. The words “commensurate with” mean “in accordance with.”

An extensive treatment of the Family Code is found in the article by Eugene L. Smith, Termination of the Parent-Child Relationship, 5 Tex.Tech.L.Rev. 437 (1974). The article is one of several submitted by the scholars who drafted the code. Professor Smith writes at p. 440: “Phrase (E) is derived from Tex.Rev.Civ.Stat.Ann. art. 46a, Sec. 6, which authorized dispensation with a parent’s consent to adoption upon failure to support the child for an extended period of time.” There is no mention of an intent to do more than reduce the time. Just as two years did not mean nineteen months in Cawley, so also one year does not mean eight months in this case. The proof is that Mrs. Wiley provided or offered support for four of the twelve months and that she was living at a poverty level during the entire one-year period.

Involuntary termination of parental rights rests upon Section 15.02. Subdivision (1) of that Section lists several acts or omissions, one or more of which must be proved in a termination case. The list may not be an exclusive one, but so far as this case is concerned, the Welfare Unit relied only upon Section 15.02(1)(E). Subdivision (2) of the same Section requires proof of a second element, that the termination is in the best interest of the child. Both elements must be established and the requirements of Subdivision (1) are not excused because a court may be of the opinion that Subdivision (2) has been proved.

Suits for conservatorship, possession, and support are governed by Chapter 14 of the Family Code and those matters are determined by the “best interest” test. Section 14.07. Those proceedings are different and have different purposes from termination cases. Decrees under Chapter 14 may be modified or changed from time to time, but the parent still retains some rights in and control over a child. A termination decree, on the other hand, is complete, final, irrevocable. It divests for all time the parent and child of all legal rights, privileges, duties, and powers with respect to each other except for the child’s right to inherit. See Section 15.07. The difference in the proceedings justifies the caution with which courts have characteristically considered termination cases.

Actions which break the ties between a parent and child “can never be justified without the most solid and substantial reasons.” State v. Deaton, 93 Tex. 243, 54 S.W. 901 (1900). Particularly in an action which permanently sunders those ties, should the proceedings be strictly scrutinized. This court has always recognized the strong presumption that the best interest of a minor is usually served by keeping custody in the natural parents. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.1965); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). Mumma says:

The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child.

The natural right which exists between parents and their children is one of constitutional dimensions. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The presumptive right of parents is grounded on good policy considerations.

Although “natural right” has developed firm roots in family law, the mere label obviously provides little concrete justification for protecting parents’ interests. Modern theories of child welfare, however, offer persuasive support to parental rights, and suggest that the legal system should generally defer to the wishes of a child’s parents, obliging the state to bear a serious burden of justification before intervention. State Intrusion into Family Affairs: Justification and Limitations, 26 Stanford L.Rev. 1383, 1385 (1974).

Mrs. Wiley proved that by the time of the trial in January, 1975, her financial condition had improved to the point that she had taken a training course to prepare herself for permanent employment which she had already obtained. She undertook the training so she could get out of bars as a cocktail waitress. According to the testimony of a welfare worker at the time of trial, Mrs. Wiley was living alone in a “real cute” apartment. When the welfare worker visited Mrs. Wiley, unannounced, she found her apartment was clean, uncluttered and well-kept. She said that Mrs. Wiley should be commended for improving her working conditions.

We conclude that there is no evidence to support the findings or the conclusion that Mrs. Wiley failed to support her child in accordance with her ability for the period of time required by the Family Code. The judgments of the courts below are reversed and judgment is rendered that the termination of the parent-child relationship is denied.

Dissenting Opinion by McGEE, J., in which GREENHILL, C. J., and DENTON and SAM D. JOHNSON, JJ., join.

Concurring Opinion by STEAKLEY, J.

STEAKLEY, Justice

(concurring).

I did not agree with the majority in Cawley v. Allums, 518 S.W.2d 790 (Tex.1975), as evidenced by joinder in the dissent. But I accept it as applicable here as written by the majority.

McGEE, Justice

(dissenting).

I respectfully dissent.

In the present case, Jacquelyn Wiley was requested by the Welfare Unit to make monetary contributions of only $33 a month toward the financial support of her child. Over a one-year time span, these monthly payments amounted to a total of $396 for the care, feeding, and boarding of her infant. While Mrs. Wiley was obviously not wealthy, she was certainly not impoverished. She had a “cute” apartment, the financial support of her parents, the monetary aid of her boyfriend, and $500 in her savings account. As a practical matter, what did Mrs. Wiley contribute to the support of her child from July 17, 1973 to July 16, 1974? The record reveals that she paid a total of $93 toward the support of her infant during that one-year time period. Obviously, $93 will not fully support a child for one entire year; the remainder of that financial burden was therefore required to be borne by the state.

The majority relies on Cawley v. Allums, 518 S.W.2d 790 (Tex.1975), as authority for its interpretation of the controlling Section 15.02(1)(E) dealing with nonsupport. I contend that Cawley has no application in the case now before us. The old adoption statute under review in Cawley was Article 46a, Section 6(a), which read in pertinent part as follows:

“Except as otherwise provided in this section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, or if such parent or parents shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, then, in either event, it shall not be necessary to obtain the written consent of the living parent or parents in such default.” [Emphasis added].

In Cawley the court was faced with the problem of determining the meaning of that portion of Section 6(a) which dealt with the two-year time period established under the failure to support provision. In construing the above statute, the court stated that “[t]he case requires a construction of the words ‘during such period of two (2) years.’ ” In order to gain insight as to the meaning of the two-year support portion set out in Article 46a, it was announced that Section 6(a) would be examined in its entirety. The court first considered Section 6(a) with reference to the uninterrupted two-year period of abandonment required in order for adoption to be allowed without the written consent of the parent due to parental desertion. In next discussing the failure to support component of Section 6(a), the court concluded that “[t]he word ‘such’ refers to the kind of time lapse required under the abandonment and desertion provision of the statute. It is ‘such’ period, meaning that it is the same kind of and is like the time requirement applicable to abandonment.” [Emphasis added]. It is evident that the court in Cawley was faced with construing the wording of a statute somewhat at variance with the one presently before us. Further, in the instant case the statutory language under consideration is clear and obviously independent of, and in no way related to, any other statutory provision such as abandonment. Since Cawley interpreted a statutory provision which differs in significant respects from the statute we are presently examining and since Cawley is factually distinguishable from the present controversy, I view that decision as having no application in the ease now before us.

The complete wording of the statute involved in the present case is: “ . failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition . . . .” I believe that the Legislature intended that Section 15.02(1)(E) provide for a determination of the applicable one-year period to be considered and for an examination of the support payments made by the parent during this one-year period. Thus, the rule I would enunciate is that the number and amount of the payments made should be compared to the parents’ income and other sources of earnings throughout the entire period. Income, savings, overall financial condition, financial problems encountered and excuses should be viewed together over the entire year when a failure to support is asserted as a ground for termination. Through such an extensive evaluation it would ultimately be determined whether or not the parent failed to support the child “in accordance with his ability,” during the one-year period under consideration. The ability of an individual to pay will inevitably vary depending on the facts and circumstances of each particular case. Nevertheless, unlike the majority, I would not eliminate the phrase, “in accordance with his ability,” from the operative language of the statute.

Applying the rule as previously set out, I would conclude that there is evidence of probative force to support the trial court’s finding with reference to petitioner’s failure to support under Section 15.02(1)(E). With regard to the conclusion of the trial judge that it would be in the best interest of the child if termination were ordered, I believe there is also ample evidence to support that finding. I will briefly summarize only a portion of the essential and material information as follows: The infant involved in this case was voluntarily placed with the Child Welfare Unit and remained under its care and supervision for some 17 months before this termination suit was instituted. The record shows that this was the third marriage of the petitioner which had failed and that she earlier had two other children by virtue of the prior marriages. One of these two children was left in the custody of her ex-husband and the other child had been adopted after the petitioner had voluntarily signed a document giving her consent to the adoption. The petitioner was receiving financial assistance from her parents as well as from her boyfriend and while she had also accumulated significant financial savings, only $93 in support payments were made throughout this one-year period. There was testimony to the effect that when the child had first been transferred to the care and control of the Welfare Unit, that the infant was behind in both physical development and emotional stability. It is apparent from this record that there is some evidence to support the findings and conclusions of the trial judge.

The problem raised in the instant case is partly due to the majority’s reliance on the Cawley rationale. With reference to Mrs. Wiley’s failure to make various support payments, the majority has stated that since she made a payment on August 6, 1973 “[t]he required period of nonsupport commenced not sooner than some time after August 6, 1973, which defeats the one-year period mandated by the Family Code.” Thus, what Cawley would seem to hold is that you may not begin the running of the one-year period of nonsupport until an initial month exists where no payment has been made. However, what is the rest of the rule as enunciated in Cawley and applied in the instant case? How has Section 15.02(1)(E) as presently drafted been interpreted by the majority? At what point in time after August 6, 1973 would the one-year time period start to run? Does the majority intend to hold that if a parent fails to make any support payments for eleven months and succeeds in forwarding a financial contribution on the twelfth month, that the running of the one-year period of nonsupport has been tolled and termination may not be allowed?

Let us assume that between the months of January 1,1975 and December 31,1975 a wealthy father or mother forwards a support payment only in the month of December. When may the one-year nonsupport time period begin to run for purposes of ascertaining whether grounds exist calling for termination? How may one full year of nonsupport ever be found to exist in such situations? Must the inattentive parents’ 11 prior failures to pay be disregarded forever? Are we to erase from existence the fact that the parent failed or refused to make 11 out of 12 payments simply because he manages to slip in one payment per year? Should we allow one payment to cure 11 prior deficiencies? May a neglectful parent continue to make one out of every six, or one out of every 12 payments and avoid forever the existence of a one-year period of nonsupport and thereby successfully evade termination? Is complete nonsupport for one year required before termination will be allowed? Such would seem to be the intention of the majority as their opinion states: “Just as two years did not mean nineteen months in Cawley, so also one year does not mean eight months in this case.” Thus, applying the reasoning of the majority to the single yearly payment hypothetical, termination would never be allowed as “one year does not mean eleven months.”

The statutory interpretation espoused by the majority is certainly not clear. In cases of this nature, guidance and clarity are absolutely essential to those persons affected by such rulings as well as to trial judges attempting to apply them. I would not so heavily emphasize and favor the rights of neglectful parents. The making of periodic token payments should not be allowed to create a situation in which an infant must indefinitely remain in the hands of a state welfare unit or in the care of foster homes. Children require the existence of love and environmental and emotional stability in their lives. The reasoning of the majority will not facilitate the attainment of these goals. I would affirm the judgment of the Court of Civil Appeals.

GREENHILL, C. J., and DENTON and SAM D. JOHNSON, JJ., join in this dissent.

      . Section 15.02(1)(E) was changed to 15.02(1)(F) effective September 1, 1975. Unless otherwise noted all statutory references are to Tex.Fam. Code Ann. (1975).

      . “2. During the one year period between July 17, 1973 and July 16, 1974, JACQUELYN LAYNE WILEY paid support for JAMIE LEIGH WILEY as follows:
      August 6, 1973 $33.00
      May 14, 1974 30.00
      July 2, 1974 30.00
      TOTAL $93.00
      During the same one year period between July 17, 1973, and July 16, 1974, JACQUELYN LAYNE WILEY attempted to make support payments as follows: April's; 1974 ' “ $30.00
      3. During the one year period between July 17,1973, and July 16,1974, JACQUELYN LAYNE WILEY had employment which produced salary or wages as follows:
      Employment Salary
      October, 1973, one to one and a half weeks at a ‘U-Totem’. Not stated.
      December, 1973, and January, 1974, more than one month at ‘The Other Place’. $50 per week, plus tips.
      March, 1974, and April, 1974, two months at ‘Golden Girl Enterprises’. Between $300 and $400 a month.
      During the same on [sic] year period between July 17, 1973, and July 16, 1974, JACQUELYN LAYNE WILEY had lump sum savings accumulated as follows:
      August, 1973 $500 or more.” [TR. 55-56],