author: McMILLIAN, Judge.

text:
    Catherine McCAFFREY, Plaintiff-Respondent, v. The ESTATE of Clarence E. BRENNAN, Defendant-Appellant.
    No. 36534.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 3, 1976.

      Cook, Murphy, Lance & Mayer, Arthur S. Margulis, Stephen C. Murphy, Donald J. Gunn, Jr., St. Louis, for defendant-appellant.
    Kramer, Chused, Shostak & Kohn, Burton H. Shostak, James A. McDowell, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

This is an appeal from a judgment in favor of plaintiff-respondent in a civil action based on quantum meruit for services against defendant-appellant, a decedent’s estate. For the reasons discussed below, we reverse and remand for a new trial.

Plaintiff Catherine McCaffrey performed services for the decedent Clarence E. Brennan both in his private affairs as an individual and in his business. The services rendered the business, “Spry Farms,” covered the period from August 1963 to August 1969, when the business was sold by the decedent. These services consisted, generally, of duties as a saleswoman and bookkeeper at the business, which was a retail pet supply store. Specifically, plaintiff’s duties included making sales, checking invoices and purchase orders, supervising inventory, handling banking and payroll responsibilities and various tax reports, handling collections, and negotiating the sale of the business. Services allegedly rendered the decedent as an individual consisted of banking and bill-paying, running errands, chauffeuring, and visiting the decedent in a hospital and nursing home. These services were rendered continuously during the period August 1963 to January 1972. Plaintiff was never paid for any of the above services, but the decedent had promised to make “adequate provision” in his will.

Mr. Flynn was employed as an attorney for “Clarence E. Brennan doing business as Spry Farms,” and subsequently for Clarence E. Brennan’s estate. Mr. Flynn represented the Brennan account in a variety of suits and legal matters from May 1967, up to the time the business was sold. On April 19,1969, at the request of decedent’s brother, Mr. Flynn prepared a power of attorney running from decedent to plaintiff. Mr. Flynn met with the decedent only twice. On these occasions, plaintiff was in their presence; and, on one occasion decedent’s brother was “not in hearing distance but there.” Otherwise, all of Mr. Flynn’s contacts were with plaintiff, who furnished him information. For his work, Mr. Flynn billed Spry Farms, and the bills were paid by plaintiff under the power of attorney from the decedent.

Mr. Flynn prepared a will for Clarence Brennan, also at his brother’s request. This will included a bequest for plaintiff. The apparent amount of this bequest was $10,-000. This will was, however, never executed.

Following the death of Clarence Brennan, plaintiff filed a quantum meruit claim against his estate for $24,413.50. At trial, Betty McNamara, the bookkeeper who had prepared tax returns$for “Clarence Brennan doing business as Spry Farms,” testified extensively concerning various financial aspects of the business, including her estimate that the decedent’s net worth was over $200,000.00. This latter the judge ordered stricken and instructed the jury to disregard it. Plaintiff also called Mr. Flynn as a witness. He was permitted to testify, over frequent objections of counsel, that he had prepared a will for the decedent at the direction of decedent’s brother, that the will was never executed, and that the will contained a bequest of money for plaintiff. The unexecuted will was never admitted nor was the amount of any bequest to plaintiff identified for the jury. In his final argument to the jury, plaintiff’s counsel made the following statement: “[Y]ou will recall Mr. Flynn testified he prepared a will and it had a provision in it for Catherine McCaffrey and it was a substantial provision.” Following objection and motion for mistrial by counsel for the estate, the trial court instructed the jury to disregard the word “substantial.” Forty-five minutes into its deliberations, the jury requested the unexecuted will. Ten minutes after the trial court denied this request, the jury returned a verdict for plaintiff of $25,-000.00. Plaintiff remitted $2,500.00, and judgment was entered for plaintiff for $22,-500.00.

On appeal, defendant has three contentions. First, defendant contends that the trial court erred in admitting Ms. McNamara’s testimony concerning the size of decedent’s estate and other financial matters of decedent, for the reason that such evidence was irrelevant, immaterial, and prejudicial to defendant. Second, defendant contends that the trial court erred in admitting the testimony of Mr. Flynn regarding the preparation for decedent of an unexe-cuted will, for the reason that its use was barred by the attorney-client privilege. And finally, defendant asserts that plaintiff’s attorney’s reference in final argument to a “substantial” provision for plaintiff in decedent’s will was so manifestly prejudicial that the trial court abused its discretion in denying defendant’s counsel’s request for a mistrial.

Regarding defendant’s first contention, we note initially that the most damaging testimony, Ms. McNamara’s assigning a value of $200,000.00 to the estate, was in fact not admitted but was stricken. At that time, defendant’s counsel did not request a mistrial; therefore, the trial court granted defendant all the relief it requested. The evidence which was admitted included the gross sales and personal taxable income of the decedent over the period in question and the sale price of the real estate for Spry Farms. Plaintiff relies on Allmon v. Allmon, 314 S.W.2d 457 (Mo.App.1958), to justify the introduction of testimony concerning the financial affairs of the decedent; her rationale is that this goes to decedent’s intent to pay for the services. However, in Alimón, unlike the case at bar, the plaintiff was related to the decedent. This is significant because, absent a family relationship, the law presumes an intent to pay for the services. See Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 210 S.W.2d 49 (banc 1948); Vosburg v. Smith, 272 S.W.2d 297 (Mo.App.1954). Intent to pay for the services was not at issue; therefore, the evidence of decedent’s financial condition was immaterial. Furthermore, its admission may have been prejudicial to defendant. In a suit in quantum meruit, the sole measure of recovery should have been the market value of the services rendered. Evidence concerning decedent’s ability to pay not only would have been no criterion as to the value of plaintiff’s services but also could have influenced the jury to award greater damages on a basis not warranted by the merits. Springli v. Mercantile Trust Co., 333 S.W.2d 311, 314-15 (Mo.App.1960); Runnels v. Allen’s Estate, 184 S.W.2d 740, 743-44 (Mo.App.1945). On remand, this evidence should be excluded. However, because we choose to base our reversal explicitly on attorney-client privilege, we need not decide whether such evidence by itself would have been so prejudicial as to warrant a new trial. Maey v. Day, 346 S.W.2d 555 (Mo.App.1961).

Defendant’s second contention is that Mr. Flynn’s testimony concerning the preparation of an unexecuted will was inadmissible because of the attorney-client privilege. We agree.

A client has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications between himself or his representative and his lawyer or his representative. The attorney-client relationship with respect to the attorney’s preparation of a will survives the death of the client and bars testimony of the attorney where, as here, one of the parties asserts a claim adverse to the interests of the client’s estate. Runnels v. Allen’s Adm’r, 169 S.W.2d 73 (Mo.App.1943). The privilege may be claimed by the personal representative of a deceased client. Defendant’s attorney made numerous specific objections to Mr. Flynn’s testimony. Therefore, if an attorney-client relationship existed between Mr. Flynn and decedent, the privilege was properly raised by defendant’s estate.

Plaintiff attacks the creation of an attorney-client privilege in two ways, both of which are unavailing. Initially, she asserts that the only attorney-client relationship concerning decedent's will existed between Mr. Flynn and decedent’s brother, apparently because, he requested its preparation. No authority is cited for this proposition, but rather she relies on the trial court’s finding of competency of Mr. Flynn. It is true that, where the evidence is sufficient to justify a finding that the witness was competent, it cannot be said that the trial court abused its discretion. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875 (1955). But here the evidence does not justify such a finding. Mr. Flynn’s representation of decedent began in 1967 with a telephone call directly from Clarence Brennan. Subsequently, he represented the deceased in a variety of legal matters and maintained an extensive file entitled “Clarence E. Brennan doing business as Spry Farms,” which included the unexecuted will. He billed Spry Farms for his work and was compensated by plaintiff under the power of attorney from decedent. At trial, Mr. Flynn testified that he was employed by deceased, and at no time did he suggest that he represented either plaintiff or decedent’s brother. These facts demonstrate that decedent was the client. Furthermore, there is authority that, as a matter of law, the making of a will cannot be delegated to another. Therefore, although the trial court did not state reasons for its ruling that Mr. Flynn was competent to testify, to the extent that this ruling may have reflected an assumption that no attorney-client relationship existed between Mr. Flynn and the deceased, it was erroneous.

Plaintiff then asserts that, even if an attorney-client relationship existed between Mr. Flynn and the deceased regarding preparation of the will, the privilege was destroyed by plaintiff’s presence during their communications and her supplying of information to Mr. Flynn directly. As a general rule, the privilege is destroyed by the presence and hearing of third persons, on the ground that the communication was never intended to be confidential. Canty v. Halpin, 294 Mo. 118, 242 S.W. 94 (banc 1922); 58 Am.Jur. “Witnesses,” § 492, at p. 275. However, preparation of a will is typically a matter which a client would expect to be confidential and therefore privileged. Doyle v. Reeves, 112 Conn. 521, 152 A. 882 (1931). And the “rule as to the absence of privilege where a third person is present does not apply when the third person is the confidential agent of either the client or the attorney.” Similarly, “[wjhen a communication meets all the legal requirements entitling it to be privileged when made directly between an attorney and his client, it is equally privileged when the communication is made through the client’s agent or employee.” Id. § 498, at 279. See also Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960); Missouri K. & T. Ry. Co. v. Williams, 43 Tex.Civ.App. 549, 96 S.W. 1087 (1906). In other words, it is the function of the third party — his relationship to the client — which determines whether the privilege encompasses communications made by, or in the presence of that third party. During the entire claim period, decedent held plaintiff in a position of trust and authority such that her agency would be implied. Beginning April 19,1968, her agency was validated by a blanket power of attorney running from decedent to her. See Smith v. United States, 113 F.Supp. 702 (D.Hawaii 1953). See also Prior v. Hager, 440 S.W.2d 167, 173 (Mo.App.1969). All of plaintiffs dealings with Mr. Flynn were pursuant to her agency relationship to the deceased. Therefore, these communications were encompassed within the attorney-client privilege. The privilege was neither destroyed by her presence nor waived by failure to object. Mr. Flynn’s testimony should have been barred by the attorney-client privilege.

The conclusion is inescapable that Flynn’s testimony had a substantial and prejudicial impact on the jury. His testimony comprises over ten percent of the entire record. He was permitted to describe work done by plaintiff with regard to the decedent’s legal and business affairs that would otherwise not have been before the jury. And most importantly, his testimony concerning the unexecuted will could not help but suggest to the jury that the decedent had intended to take care of plaintiff at the time of his death but, for undisclosed reasons, failed to do so. This inference alone was so prejudicial as to require reversal. See Doyle v. Reeves, supra and In re Smith’s Estate, 263 Wis. 441, 57 N.W.2d 727 (1953).

Then, plaintiff’s counsel, by referring to the amount, without any basis in the record, as “substantial” took the last step toward impressing the jury that plaintiff deserved a large recovery because the decedent would have wanted it that way. As Mr. Flynn, however, will not be testifying on remand, this error will not recur. Therefore, we need not decide whether merely instructing the jury to disregard these words of plaintiff’s counsel adequately remedied the error. Esstman v. United Rys. Co. of St. Louis, 220 S.W. 508 (Mo.App.1920).

For the reasons stated above, we reverse and remand for a new trial not inconsistent with this opinion.

SIMEONE, P. J., and GUNN, J., concur.

      . See generally Annot., 65 A.L.R.2d 945 (1959); Annot., 7 A.L.R.2d 8 (1949).

      . The privilege is statutory in Missouri: § 491.060(3), RSMo 1969. “The following persons shall be incompetent to testify: (3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client; . . ..”

      .I. F. Mechem, A Treatise on the Law of Agency, § 126 (2d Ed. 1914).

      . Deceased’s brother’s presence on one occasion, “not in hearing distance but there,” clearly does not come within this rule.

      . 58 Am.Jur., “Witnesses,” § 493, at 276.

      . 2 F. Mechem, supra, at § 2308.

      . 3 Am.Jur.2d, Agency, § 23; 1 F. Mechem, supra, at § 35.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph E. GONZALES, Defendant-Appellant.
    No. 9903.
    Missouri Court of Appeals, Springfield District.
    Feb. 5, 1976.

      John C. Danforth, Atty. Gen., K. Preston Dean, II, Sheila K. Hyatt, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Wayne C. Smith, Jr., Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendant and his brother, Benny Gonzales, were jointly charged with the November 1,1973, first degree robbery of a service station attendant in Springfield. § 560.120. Defendant was separately tried (Rule 25.07), jury-convicted on circumstantial evidence, and sentenced to imprisonment for 15 years. § 560.135.

In substance, defendant’s first point challenges the sufficiency of the evidence to support the conviction. We are reminded that in circumstantial evidence cases, the test for determining the sufficiency of the evidence to sustain a conviction is more stringent than in cases where direct evidence is adduced. Nonetheless, upon review after conviction in such a case, we must accept as true the state’s evidence, together with all reasonable inferences deducible therefrom, and disregard all contrary evidence and inferences. State v. Stapleton, 518 S.W.2d 292, 296[1] (Mo. banc 1975). We proceed, therefore, to recast the evidence in light of the foregoing admonitions.

Defendant, according to the record, was older and taller than Benny. Both were described as Mexican-Americans.

Some three months before the robbery, Policeman Dan Wilson loaned his loaded chrome or nickel-plated pearl-handled revolver (State’s Exhibit 1) and black leather holster (State’s Exhibit 1-A) to his brother John Wilson. The gun was variously described as being a “.38 caliber special” or a “.357 magnum combat masterpiece.” The borrower’s 15 or 16-year-old son, John, Jr., had shown the revolver to defendant, Benny and Pat Boggs prior to the robbery. Early on the day of the robbery, defendant, Benny and Pat went to the John Wilson home where defendant said something “about finding a pistol.” Subsequent to the trio’s empty-handed return to a girl friend’s home, defendant departed alone and soon returned displaying to Pat and Benny a gun in a holster which was stuck in the waistband of his trousers beneath his shirttail. Pat was adamant that Exhibit 1-A was the same holster shown to him by defendant; he said the displayed gun “looks like . it’s the same kind of revolver, the same looks” as Exhibit 1.

Charley Day, a numismatist of sorts, owned and operated the service station in question, and employed Floyd Tindle as the afternoon and evening attendant. Because “they are rare now,” Charley had saved three $1 silver certificates. He had also collected ten $1 bills signed by Secretary of the Treasury “Joseph E. Barr” because Mr. Barr had served in that capacity “for only 30 days, in 1963.” The collected bills were kept under a glass covering Charley’s desk at the service station.

As Tindle was preparing to close the station near 7 p. m. on the day of the robbery, he approached two male Mexican-Americans who were afoot outside the station building and “asked them what they wanted.” He described the males: “One was short and one was tall”; neither wore masks or anything to conceal his appearance. In response to Tindle’s inquiry, the short male produced a “large caliber . chrome plated” gun with “pearl handles on it” and said, “[W]e want your money.” Tindle testified “it was a gun like” Exhibit 1 and that the exhibit “looks like the gun,” although there was no way he could “be absolutely positive [Exhibit 1] is the gun” that was used in the robbery. Inside the station building the short male with the gun stood alongside Tindle while he extracted “bills and change” from the cash register. The taller robber stood “on the other side of the showcase,” about 12 feet from Tindle, and demanded the register be lifted “so he’d be sure there was nothing under there.” After Tindle complied, the three went into the office where Tindle, as directed, lifted the desk glass and removed the Barr and silver certificates. The money taken from the register and off the desk was given to the short robber. Before the two robbers departed, Tindle was instructed to lie on the office floor. He complied until “I heard [footsteps] go around the corner of the building [and then] I got up and called Mr. Day.” The police also were notified. Following a check of the premises, Mr. Day allowed he “was approximately $80.00 short.”

Tindle at no time identified defendant or Benny as being one or both of the robbers. No witness appeared at trial who claimed to have seen defendant or Benny at, near or in the service station at the time of the robbery or at any other time.

Shortly after the robbery, Springfield police officers were notified via radio of the event. It is not known whether the information was contained in the initial report or subsequent broadcasts, but the officers were advised to be on the alert for the “Gonzales brothers . . . two Mexican subjects . . . one taller than the other [probably in] a Dodge 330 series [automobile with] license number, XT9946.” One of the officers ascertained the vehicle was owned by a Mary Estes, who had loaned it to defendant and Benny “for approximately an hour.” No one testified the described automobile had been seen at or near the service station at the time of the robbery or at any other time; the jury was not advised how the police came by the information which was broadcast or why the police considered defendant and Benny to be implicated in the matter. In any event, police officers stopped the vehicle at 8:55 p. m. (about an hour and 55 minutes after the robbery) and arrested defendant (the driver) and Benny (the lone passenger). When searched, Benny had $51 in bills in his left pocket and $4.52 in change in his right pocket. The bills included 3 silver and 7 Barr certificates. Defendant had on his person 7 cents which was not identified as having been taken in the robbery. After finding nothing of importance inside the car, one of the officers asked defendant and Benny “if there was any reason I couldn’t look in the trunk.” Upon being told “they didn’t care because the car didn’t belong to them,” the trunk was opened. Inside reposed a “fully loaded” revolver (Exhibit 1) inside a black leather holster (Exhibit 1-A).

Pat Boggs and John Wilson, Jr., testified that during the two or three weeks they had known defendant and Benny prior to the robbery, they had not seen either of the Gonzales brothers in the company of any other Mexican-Americans. Whether the Dodge automobile had been loaned to defendant and Benny before or after the robbery was not revealed. Defendant offered no evidence.

It is well established that when a conviction is dependent upon circumstantial evidence and evidence of a defendant’s agency in connection with the crime charged is entirely circumstantial, the facts and circumstances relied on by the state must not only be consistent with each other and with the hypothesis of defendant’s guilt, but must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence. Mere suspicion of guilt, however great, is not sufficient to authorize a conviction of a crime. State v. Schleicher, 438 S.W.2d 258, 260-261[2, 3] (Mo.1969); State v. Potter, 530 S.W.2d 268, 270[3] (Mo.App.1975). And while the rule is that several inferences properly may be drawn from the same proven facts if each inference is supported thereby [State v. Feger, 340 S.W.2d 716, 722[4] (Mo.1960)], an inference may not properly arise which is “dependent for establishment of one fact upon inference to be drawn from some other fact shown only by inference.” State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64-65[16] (banc 1940).

Inherent in defendant’s challenge to the evidence to support the conviction is his claim that the evidence was “not sufficient to establish possession by defendant of recently stolen property so as to permit an inference that defendant committed a robbery.” This invites inspection of the curial saw that possession by defendant of property involved in offenses for which the wrongful taking thereof is an essential element, is a circumstance from which the jury may infer that defendant was the person who committed the crime charged, whether that crime be robbery or burglary [State v. Lee, 491 S.W.2d 317, 320[3] (Mo. banc 1973)] or stealing [State v. McClanahan, 419 S.W.2d 20, 21[1] (Mo.1967)], provided that defendant’s possession thereof is not too remote in point from the time of the crime and that defendant’s possession is personal, exclusive, distinct, conscious and unexplained. State v. Freeman, 489 S.W.2d 749, 752[4] (Mo.App.1973). As often said, the term “exclusive” used in describing possession under the foregoing provision does not mean that possession must be separate and apart from all others, because joint possession may give rise to the same inference. State v. Webb, 432 S.W.2d 218, 222[6] (Mo.1968); State v. Ransom, 500 S.W.2d 585, 588[4] (Mo.App.1973). Yet, if the possession relied on to convict the defendant is joint with another, there must, at least, be some other evidence more than mere possession connecting the defendant with the offense. State v. Farmer, 490 S.W.2d 72, 74 (Mo.1973); State v. Webb, 382 S.W.2d 601, 604[4] (Mo.1964); State v. Mesmer, 501 S.W.2d 192, 195[3] (Mo.App.1973); 12 C.J.S. Burglary § 59 b., at p. 738.

“It is the ‘possession’ of recently stolen property that permits the jury to infer that the person in possession stole such property. Unless the ‘possession’ is established, the inference of guilt of the robbery is not permissible.” State v. Lee, supra, 491 S.W.2d at 321.

The question of “exclusive” possession vel non presented in each case is basically a factual one. Ergo, we will not undertake to ape the frequently tried, but nevertheless laborious and often futile task of attempting to compare facts presented in the instant case with those reported in other opinions. Prior cases are not especially helpful due to variations in factual situations. State v. Schleicher, 458 S.W.2d 351, 354 (Mo. banc 1970). The interested reader is referred to Annot., 51 A.L.R.3d 727-815 (1973), for an excellent arrangement and collection of a variety of situations as to what amounts to “exclusive” possession of stolen goods sufficient to support an inference of robbery, burglary and other felonious takings.

Constructive possession, albeit enough to create civil liability, is not sufficient to hold a person criminally responsible as he can only be required to account for things which he knowingly and actually possessed. State v. Watson, 350 S.W.2d 763, 766 (Mo.1961). Generally, where stolen property is found on premises, in a house or any other place to which other persons have equal access with the defendant, the possession is not proven so as to warrant the inference. State v. Prunty, 276 Mo. 359, 371, 208 S.W. 91, 94 (1918). It has been noted that the character of the possession is determined by the kind and character of the property stolen. “The bulk and nature of the stolen property has [sic] a bearing on the manner in which it may be possessed. ‘Some things are not capable of being carried in one’s pocket.’ ” State v. Cobb, 444 S.W.2d 408, 412[4] (Mo. banc 1969).

From what has been said, it follows that if the evidence establishes that someone other than defendant had “exclusive” possession of the stolen property, then the trier of the facts should not be permitted to infer from the fact of possession alone that defendant committed or participated in the robbery. The only stolen property involved which could possibly link defendant to the crime charged was the silver and Barr certificates found in the pocket of Benny’s trousers when the pair was arrested. It is difficult to envision a more “exclusive” possession that one could evince than by placing money in the pocket of one’s own trousers. There was no evidence here that defendant was ever possessed of the stolen money, had given it to Benny, or that defendant claimed any ownership or dominion over the stolen money [cf. State v. Burrage, 418 S.W.2d 101 (Mo.1967)]; or (as between defendant and Benny) that defendant had any right or claim to the money or any part thereof, or (by reason of conspiracy or common purpose) that Benny was possessed of the money jointly with defendant or for his benefit. Where the stolen property is a check, money, something represented by a pawn ticket, or any other item found concealed in the pocket of defendant’s companion, and there is nothing to indicate defendant’s knowledge, possession or right to possession thereof, no inference arises from the companion’s possession which will support defendant’s conviction. “Guilt inferred only from the fact of the unexplained possession of recently stolen goods [citations omitted] ordinarily cannot be imputed to a companion of the possessor without other supporting evidence; ¡ . . .” Matthews v. State, 237 Md. 384, 206 A.2d 714, 717[6] (1965). Benny’s “exclusive” possession was not defendant’s possession and did not permit an inference that defendant was guilty of the robbery.

Finally, ignoring the possession issue and without piling inference on inference, can it be reasonably inferred from proven facts that defendant was guilty of robbery? We think not. Evidence that defendant and Benny were Mexiean-Ameri-cans and that defendant was the taller of the two, when coupled with the service station attendant’s testimony that the robbery was committed by two unidentified male Mexican-Americans, one tall and one short, does not, standing alone, lead unerringly to the conclusion or permit a reasonable inference that the robbers were defendant and Benny. Implicating defendant in the crime charged through the inference of Benny’s guilt because of his possession of some of the stolen money, would be tantamount to predicating a conviction of guilt by association at times prior and subsequent to but not at the time of the robbery, or by using the inference of Benny’s guilt as a springboard to arrive at additional double inferences that Benny was the short robber and defendant was the taller. “Tall” and “short” are relative terms and, of course, Benny, though shorter than defendant, could have been the taller of the two robbers if defendant was not involved.

Testimony by Pat Boggs and the station attendant that State’s Exhibit 1, found in the trunk of the borrowed vehicle an hour and 55 minutes after the robbery, “looks like” or “was a gun like” the one Pat saw in defendant’s possession earlier in the day of the robbery and that which the attendant saw at the time of the crime, was sufficient to permit the exhibit’s introduction into evidence [State v. Kern, 447 S.W.2d 571, 574—575[3, 4] (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791[3, 4] (Mo.1956)], leaving to the jury the weight to be afforded the exhibit’s identification. State v. Stancliff, 467 S.W.2d 26, 30[2] (Mo.1971); State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973). If given full weight, the jury could have reasonably inferred the exhibit was the same gun possessed by defendant earlier in the day of the robbery and the same gun produced by the shorter bandit at the time of the robbery. To link defendant with the robbery through the gun, the jury would necessarily need to indulge in additional inferences bottomed on the identification inference gleaned from the identification testimony. In other words, although defendant was never identified as being one of the robbers nor placed at or near the service station at the time of the robbery or at any other time, the jury would need to infer that defendant at some unknown time before the robbery gave the gun to Benny who, through inference, as the inferred shorter of the two bandits, employed it in the robbery while defendant, again through inference, as the taller robber, aided and abetted in the commission of the crime. While the time at which the borrowed automobile came into defendant’s and Benny’s possession was not revealed, the jury would also be required to infer that defendant or Benny put the gun in the car trunk after the robbery and would have to conclude, via another inference, that it was not already in the trunk before the car came into the brothers’ possession.

The law presumes defendant to be innocent until his guilt is established by substantial evidence beyond a reasonable doubt. Upon the record presented, evidence of guilt is fashioned from inference-stacking; the facts and circumstances are not inconsistent with any reasonable theory of innocence and do no more, in any event, than raise a strong suspicion which does not suffice to obliterate the reasonable doubt of defendant’s guilt. State v. Murphy, 356 Mo. 110, 114, 201 S.W.2d 280, 283 (banc 1947).

It does not follow that we should reverse the conviction outright and discharge the defendant. Under the circumstances, we remand the cause to give the state an opportunity to produce additional evidence if it can do so. If not, the information should be dismissed and the defendant discharged. Accordingly, the judgment is reversed and the case remanded.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Criminal Procedure, V.A.M.R.

      . For the sake of posterity it should be noted that Joseph Walker Barr (not “Joseph E.”) served as Secretary of the Treasury. Also, he did not serve in “1963.” Rather, Mr. Barr served by appointment under President Lyndon B. Johnson from December 21, 1968, until the inauguration of President Richard M. Nixon on January 20, 1969. Annual Report of Secretary of Treasury on the State of the Finances — Treasury Document No. 3428 — Washington: United States Government Printing Office 1970, p. 383.


author: HENRY, Justice.

text:
    Ernest Ray JERKINS et al., Petitioners, v. James R. McKINNEY, Respondent.
    Supreme Court of Tennessee.
    Jan. 19, 1976.

      Joseph G. Cummings, Lewis H. Conner, Jr., Nashville, for petitioners; Dearborn & Ewing, Boult, Cummings, Conners & Berry, Nashville, of counsel.
    Dick L. Lansden, Waller, Lansden, Dortch & Davis, Elkin Garfinkle, Nashville, for respondent.
   OPINION

HENRY, Justice.

These consolidated civil actions, filed pursuant to Rule 60.02, Tennessee Rules of Civil Procedure, seek to have the Court set aside an underlying judgment and award a new trial.

The Chancellor dismissed the suits on motion for summary judgment, but, on appeal, the Court of Appeals reversed and remanded.

We granted certiorari primarily in order to construe and clarify Rule 60.02, Tenn.R. Civ.P.

I.

This review is in the context of a complicated and unique actual background which must be noted as a prelude to the ensuing discussion.

The underlying judgment was rendered in a general creditor’s suit in the Chancery Court at Nashville, wherein the petitioners in the instant suit sought and obtained a personal judgment against respondent. The record in the underlying suit was not made a part of the record in this suit. The pertinent facts, however, are not in dispute.

After the intervening petitioners in the general creditor’s action had filed their petitions and after the respondent herein had answered, all parties filed motions for summary judgment, supported by affidavits. These motions were filed in May 1973.

On 4 May, 1973, at a hearing before the regular Chancellor of Part II of the Chancery Court at Nashville, counsel for the parties agreed that there were no issues of fact for determination; that the issues of law could and should be disposed of on the basis of the pleadings, the affidavits and briefs to be submitted, and without further argument or hearing.

On 27 February, 1974, the regular Chancellor, who had previously expressed to counsel some misgivings as to the propriety of his sitting upon the case in view of the fact that respondent was a member of the bar who regularly appeared in his court, wrote the then Chief Justice asking permission to recuse himself. This was done without the knowledge of any counsel. In this letter the Chancellor pointed out that the case could be “determined upon motions, affidavits and briefs.”

On 4 March, 1974, the Chief Justice designated Chancellor William H. Inman to hear and determine the controversy. Counsel were not advised of this action, and they did not learn of it until the following June.

By letter dated 22 March, 1974, Chancellor Inman advised the Clerk and Master at Nashville of his designation and requested that he “inquire of counsel of a mutually convenient trial date(s).” Counsel were not notified of this letter. The regular Chancellor advised the Clerk and Master that it would not be necessary to arrange a trial date since a hearing would not be necessary.

Subsequently, the regular Chancellor explained the situation to Chancellor Inman and advised him that the controversy was before him on the pleadings, etc., and that it had been agreed that the issues would be determined without a hearing.

On 23 May, 1974 Chancellor Inman filed his opinion, but counsel did not receive a copy and, in fact, did not learn of this action until about a month thereafter.

After learning of the Chancellor’s opinion counsel for the prevailing parties (the petitioners herein) prepared and forwarded to Chancellor Inman a judgment, which was signed and entered on 5 July, 1974.

On 25 July, 1974, respondent herein filed his motion for a new trial.

On 16 September, 1974, an order was entered overruling this motion. Counsel for the respective parties did not learn of this until late October, more than thirty days after the entry of the order overruling the motion for a new trial.

In the meantime on 15 October, 1974, attorney for the respondent in the instant suit wrote Chancellor Inman suggesting that they come to Morristown and argue the motion for a new trial which he had already overruled without the knowledge of counsel. The Chancellor declined to hear argument but advised that if the record was not in shape for an appeal to “forward me an approved order so that it will be in shape.” It was after the receipt of this letter that counsel for respondent learned of the 16 September, 1974 order.

Pursuant to this letter counsel for petitioners herein prepared and forwarded to Chancellor Inman another order overruling the motion for a new trial and granting thirty days for an appeal. This order was entered on 31 October, 1974.

Prior to the expiration of thirty days from and after the date of the entry of this order, counsel for petitioners herein advised respondent’s counsel that if an appeal were perfected within the thirty day period from and after 31 October, 1974, they would interpose no objection to the timeliness of the appeal.

Respondent did not elect to take advantage of this waiver; instead he filed, on 13 November, 1974, two identical suits against petitioners herein. The only difference in these suits is that four of the petitioners are named in one suit and the remaining four in the other.

These suits allege that they are brought pursuant to Rule 60.02, Tenn.R.Civ.P., to set aside the underlying judgment upon the ground that respondent (defendant in original action) (1) had no notice of the proceedings; (2) no opportunity to be heard, and (3) that the proceedings constitute a denial of due process under the state and federal constitutions. They demand that the judgment be set aside, a new trial be awarded and defendants be enjoined from taking any steps to enforce the judgment.

All defendants to this suit (petitioners herein) moved to dismiss for failure to state a claim upon which relief can be granted.

These suits were assigned to Part I of the Chancery Court at Nashville. The regular Chancellor, after issuing the injunction prayed for, recused himself and the Chief Justice designated the Honorable Wil V. Doran to hear and determine the controversy.

The motion to dismiss was subsequently supported by affidavit and, pursuant to Rule 12.02, was correctly treated by the Chancellor as a motion for summary judgment and disposed of under Rule 56, Tenn. R.Civ.P.

In granting the motion for summary judgment the Chancellor held:

a. that respondent was not denied the right to a hearing on the motion for summary judgment;
b. that respondent was not afforded an opportunity for an oral hearing on his motion for a new trial;
c. that counsel for the parties were unaware of the order overruling the motion for a new trial until more than thirty days after its entry;
d. that on 31 October, 1974 an order was entered overruling the motion for a new trial and granting an appeal;
e. that no appeal was ever perfected;
f. that, under Rule 60, respondent had the right to appeal within 30 days from the 31 October order;
g. that under § 27-601 T.C.A. respondent “probably still has the right to appeal by way of writ of error”;
h. that absent a showing of having exhausted his remedies in the underlying action, respondent has no right to maintain the present action.

Findings a. through e. represent findings of fact that are fully supported by the record and in which we concur. The conclusions of law are discussed hereinafter, as is the reasoning of the Court of Appeals in reversing the Chancellor.

II.

The Chancellor’s first finding of fact, to the effect that respondent was not denied the right to a hearing on the motions for summary judgment, was obviously grounded upon the solemn agreement of the parties, made in open court, that they would submit the case on the record and without argument.

The Court of Appeals was “inclined to agree” with respondent’s argument that “waiver of oral hearing before one familiar jurist is an entirely different matter from general waiver before [another] jurist”, and suggests that deciding the matter without giving the parties an opportunity to be heard was tantamount to a denial of due process.

We disagree.

There was nothing conditional about the agreement. This controversy was characterized by unfortunate failures of communication. We are cited to no ease holding that a litigant has a right to be heard before a familiar or certain judge. In State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515 (1942), the Court held:

The law does not provide that notice shall be given to a litigant, whether plaintiff or defendant, of the interchange of judges. 162 S.W.2d at 519.

III.

A substantial portion of respondent’s case is premised upon the proposition that he had no notice of the disposition of his motion for a new trial and was afforded no opportunity to be heard.

The Court of Appeals treats this as tantamount to a denial of due process, and treats the entry of the order overruling the motion for a new trial as being a denial of the right to orderly appellate review.

We disagree on both counts.

First, we point out that a motion for a new trial is not a prerequisite for appellate review. Section 27-303 T.C.A. Since the motion itself is not critical, due process is not offended by denial of the opportunity for the presentation of argument.

In 5 Wright & Millet:, Federal Practice and Procedure, § 1190, in commenting upon Rule 7(b) Fed.R.Civ.P., (the “motion rule”), the general rule is said to be:

Due process does not require that oral argument be permitted on a motion, and, except as otherwise provided by local rule, the court has discretion to determine whether it will decide the motion on the papers or hear argument by counsel.

Oral argument is especially unnecessary when only questions of law are concerned. Butterman v. Walston & Co., 50 F.R.D. 189 (E.D.Wis.1970).

The Tennessee Rules of Civil Procedure contain no requirement that trial judges permit argument on motions for a new trial, nor do the rules of practice of the chancery court, as incorporated in § 21 — 1401 T.C.A.

We do not for one instant minimize the importance of argument. We note with passing interest Chancellor Gibson’s famous footnote 31 to § 546, Gibson’s Suits in Chancery (5th ed.).

In arguing a cause, lawyers should keep in mind that a Justice of the Peace needs less argument than a juror, that a Circuit Judge needs less than a Justice of the Peace, that a Chancellor needs less than a Circuit Judge, and that an Appellate Judge needs less than a Chancellor. Nevertheless, they are all benefited by sound argument, and especially by the production of pertinent law.

We note the first sentence; we quote with approval the last.

Throughout this opinion we bear in mind that at no place in the pleadings is there the slightest suggestion that the Chancellor decided the issues incorrectly— just that the parties did not have an opportunity to be heard.

We hold that prevailing and better practice is to permit oral argument on motions for a new trial; however, a failure to do so, in a civil case, does not invalidate the action of the trial®judge nor offend constitutional due process.

IV.

The entry of the order of 16 September, 1974, without notice to the litigants was, of course, a procedural error, but it in no sense deprived respondent of orderly appellate review. Respondent had three options open to him when he discovered, after the time for appeal had run, that an order overruling his motion for a new trial had been entered. In descending order of simplicity he might have:

a. appealed in reliance upon the waiver of timeliness;
b. filed a motion for relief under Rule 60.02, Tenn.R.Civ.P.;
c. filed a petition for writ of error.

The Court of Appeals held with respect to the waiver:

However praiseworthy the offer, it cannot substitute for the rights denied the appellant by the Procedure above recited [i. e. Rule 60 relief]. Litigant is entitled to proper and just procedure as a matter of right and not merely as a matter of grace or generosity of his adversary.

We don’t fault this terminology, but “all roads lead to Rome”. The only destination respondent sought was the Court of Appeals and the waiver guaranteed him free passage.

All the parties recognized the patent unfairness of denying respondent’s appeal by the entry of an order which was more than thirty days old when he first learned of its existence. In the last analysis the agreement to the waiver of the time limit was merely the voluntary and informal invocation of the benefits of Rule 60.02, Tenn.R. Civ.P.

V.

The insistence is made, and the Court of Appeals held, that under § 27-312 T.C.A., where a judgment has been of record for thirty days, the trial judge is without authority to set it aside and re-enter the same for the purpose of allowing an appeal. Wright v. Dorman, 155 Tenn. 189, 291 S.W.2d 1064 (1927); Memphis & Charleston Railroad Co. v. Johnson, 84 Tenn. 387 (1886).

With this general statement of the law, we are in accord; however, the rigidity of this rule was substantially relaxed by the adoption of Rule 60, Tenn.R.Civ.P., which facially provides relief against final judgments. To hold otherwise would cut the heart out of the rule and destroy all reason for its existence. Courts have always had the authority to modify, alter, amend or revoke judgments and decrees before they become final. It was the unyielding demands of the old rule of rigidity that prompted Rule 60.

VI.

Rule 60, Tenn.R.Civ.P., like its federal counterpart, was designed to strike a proper balance between the competing principles of finality and justice.

It specifies fourteen grounds upon which relief may be granted, plus a catch-all ground, viz.: any other reason justifying relief. It provides for two types of procedure, i. e. (1) motion and (2) independent suit. It abolishes the ancillary remedies of writ of error eoram nobis, bills of review and bills in the nature of a bill of review.

We do not here deal with Rule 60.01, since this rule is designed to afford relief in those character of cases wherein the judgment or order, either standing alone, or when viewed in connection with other portions of the record, shows facially that it contains errors arising from oversight or omission.

Nor are we concerned with Rule 60.-02(5), which provides relief for “any other reason”, since this section is designed to meet unique or exceptional or extraordinary circumstances. Ackermann v. U. S., 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950).

We think the facts of this case justify the invocation of Sec. 60.02(1) providing relief against a judgment for “mistake, inadvertence, surprise or excusable neglect.” There is no merit to the insistence that Rule 60.02 applies only to acts of omission or commission of the parties.

In 7 Moore’s Federal Practice, Sec. 60.-22[2], page 247, in discussing Rule 60(b)(1) (identical with Tennessee Rule 60.02(1)), after commenting on the old rule which restricted relief to cases involving movant’s mistakes, etc., it is said:

Relief can now be had under 60(b)(1) not only for the mistake, etc. of the moving party, but also from that of other parties to the action, the clerk, and even the court. (Emphasis supplied).

We hold that the failure of the clerk to provide counsel with a copy of the order overruling the motion for a new trial, or to notify them of its existence, as to counsel, constituted excusable neglect justifying relief under Rule 60.02(1).

The action of Chancellor Inman in directing the re-entry of the order of 16 September, 1974, overruling the motion for a new trial, was obviously predicated upon Rule 60.02(1). This is the interpretation Chancellor Doran placed upon it by the use of the following language in his final decree in the instant cause:

. that pursuant to Rule 60 of the Tennessee Rules of Civil Procedure, the Court is of the opinion that the plaintiff herein had the right to appeal within 30 days from the October 31, 1974 order

It is obvious that Chancellor Inman was of the opinion that the re-entry of the decree so as to start the time for an appeal running anew was appropriate relief under Rule 60.02(1). We agree. In fact, under the circumstances of this case, this was virtually the exclusive remedy.

We further hold, in connection with Rule 60.02(1) relief, that when facts and circumstances indicating a necessity for such relief come to the attention of the Court, there is no necessity to await the filing of a formal motion. The trial court may sua sponte grant the relief. In this case-Chancellor Inman was fully justified in acting upon the basis of correspondence from counsel.

VII.

A more difficult issue for resolution is whether an independent action was proper under the facts and circumstances here presented. In the absence of Tennessee authority we are forced to look to treatises and cases construing the similar federal rule. We note from 11 Wright & Miller, Federal Practice and Procedure, Sec. 2868, that

Resort to an independent action may be had only rarely, and then only under unusual and exceptional circumstances. From the same source we note that the

corresponding provision of the federal rule, relating to “independent action” is “what had been historically known simply as an independent action in equity to obtain relief from a judgment.”

Rule 60.02, in this particular reads:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to set aside a judgment for fraud upon the court.

The ensuing sentence abolishes writs of error coram nobis, bills of review and bills in the nature of a bill of review. This leaves intact the old equitable remedy of a suit to impeach or set aside a judgment or decree for fraud, accident, surprise or mistake. See §§ 981 and 1272, Gibson’s Suits in Chancery, (5th ed.).

We adopt the following language from Winfield Associates, Inc. v. Stonecipher, 429 F.2d 1087 (10th Cir. 1970):

Generally, such an independent action must show a recognized ground, such as fraud, accident, mistake or the like, for equitable relief and that there is no other available or adequate remedy. It must also appear that the situation in which the party seeking relief finds himself is not due to his own fault, neglect or carelessness. In this type of action, it is fundamental that equity will not grant relief if the complaining party ‘has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action * * to open, vacate, modify or otherwise obtain relief against, the judgment.’ The granting of relief in this unusual type of proceeding lies largely within the discretion of the trial judge. 429 F.2d at 1090.

Respondent, in the instant case, was the victim of mistake, inadvertence, surprise and excusable neglect of others and was himself free from fault, neglect or carelessness. However, he had available at the time he filed these independent actions three complete and adequate remedies, viz. (1) a Rule 60.02(1) motion in the underlying suit, (2) an appeal pursuant to the waiver, and (3) appeal via writ of error.

We, therefore, hold that he could not maintain these independent actions. We do not wish to be understood as holding that an independent action will never lie. We do not so hold. Nor do we hold that a new trial is inappropriate relief under Rule 60. In some cases it may be entirely proper. But in the context of this case where there is no attack made on the merits of the judgment, where the only deficiencies were procedural irregularities, correctible in the main suit, or reviewable by appeal or writ of error, and where the basic relief sought is a new trial without any defect affecting the merits, we consider an independent action to be improper and so hold.

VIII.

Having held that the decree of 16 September, 1974, was the product of mistake, inadvertence, surprise or excusable neglect, and that it is not correctible in these independent actions, the final question for determination is the type of relief to which respondent is entitled.

He did not elect to pursue the appeal pursuant to waiver and that remedy is no longer available to him.

He did not elect to pursue his appeal pursuant to the re-entry of the decree on 31 October, 1974, and the time has now elapsed for doing so.

His only remaining remedy is by writ of error. The Court of Appeals, with respect to this procedure, said, in pertinent part:

Appellee also argues that the right of writ of error remains available to appellant; but such right is usually an empty one without the benefit of a bill of exceptions. Moreover, the right of writ of error does not include all of the benefits of an appeal, hence cannot be a complete substitute therefor.

Again, we most respectfully differ with the Court of Appeals.

In the underlying case there was no necessity for a bill of exceptions, since the motions for summary judgments and supporting affidavits will appear as a part of the technical record. The only marked difference between a writ of error and an appeal in the nature of a writ of error is that the appeal in error suspends execution of the judgment, while the writ of error does not. Higgins and Crownover, Tennessee Procedure in Law Cases, § 1932 (1937); Caruthers’ History of a Lawsuit, § 449 (8th ed. 1963).

This is the only remedy now available to respondent.

The injunction heretofore issued in the Chancery Court enjoining the collection of the judgment against respondent is dissolved, but with leave to apply to the Court of Appeals for supersedeas within thirty days from and after the release of this opinion.

The judgment of the Court of Appeals is

Reversed.

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

      . It should be noted that Dick L. Lansden, Esquire, who argued respondent’s case at the bar at this Court, was not counsel of record at this time.

      . Respondent asserts this date to be 28 May, 1974, but this discrepancy is of no moment.


author: HARBISON, Justice.

text:
    STATE of Tennessee ex rel. Robert F. SMITH, Commissioner, Department of Transportation, Petitioner-Plaintiff, v. J. H. OVERSTREET, Respondent-Defendant.
    Supreme Court of Tennessee.
    Feb. 2, 1976.
    R. A. Ashley, Jr., Atty. Gen., Russell G. Lazenby, Asst. Atty. Gen., Nashville, J. H. Reneau, III, Sp. Trial Counsel, Celina, for petitioner-plaintiff.
    T. Eugene Jared, T. Michael Q’Mara, Cookeville, for respondent-defendant.
   OPINION

HARBISON, Justice.

This action was instituted as a condemnation proceeding for a highway project in Clay County, Tennessee, pursuant to T.C.A. §§ 23-1528 et seq. Some 350 acres of land fronting approximately one mile on the northerly side of the highway to be widened were involved in the condemnation proceedings, although the area actually taken was approximately 22.64 acres. Portions of the tract were under lease to different tenants, and the case presently before the Court involves the appropriate measure of damages for moving expenses claimed by one of these tenants, J. H. Overstreet. All claims of the landowners and of the other tenants have been disposed of.

Respondent, Mr. Overstreet, operated a sawmill on approximately six acres of land which he leased from the owner, Beverly Minor Marcom; in addition, he stored lumber on some three or four additional acres which he held under a separate leasing arrangement hereinafter referred to. Respondent had erected a number of sheds and other buildings on the six-acre tract, in which were housed the sawmill machinery and equipment and in which were conducted the milling operations.

At the trial of the condemnation case the respondent was awarded damages for the loss of his leasehold and for the leasehold improvements, these being separately reported in the jury verdict. He also claimed and was awarded substantial damages for moving expenses. These were not itemized in the verdict, but they included expenses which had already been incurred by the respondent in the dismantling and removal of his machinery and equipment, its storage, and estimated costs of reinstallation. Evidence was also introduced by the respondent, over objection of the State, as to estimated costs of removing a large inventory of lumber and logs stored on the six-acre tract and the adjacent three or four acres; alternative evidence was offered as to the loss in value of this lumber by reason of its having been sold, rather than moved, respondent claiming that he was entitled to damages for the “involuntary conversion” of his stock in trade.

There are no assignments of error and no issues made here by either party as to the jury verdict concerning the leasehold and leasehold improvements. The Court of Appeals held that error had been committed in the award for moving expenses, and ordered a new trial as to that issue only. We regard this as a proper procedural disposition of the matter, inasmuch as the evidence concerning moving expenses is not inextricably combined with or dependent upon the evidence as to loss of leasehold value or improvements.

While we agree with the Court of Appeals that evidence offered by the respondent was improperly received and that a new trial must be had on the item of moving expenses, we are not in agreement with its holding as to the type of evidence which may be offered on the new trial. In order to place the issue in proper perspective, some discussion of the facts and the applicable law is necessary.

The leasing arrangement by which respondent held both the six acres and the adjacent three or four-acre tract was tenuous and was proved in a most indefinite manner. As to the three or four acres, there was no evidence whatever, other than the statement of Mr. Overstreet- that he held this under an “oral lease”, presumably with Mr. Marcom. The terms of this lease are not mentioned at all in the evidence, and, insofar as the record appears, Mr. Ov-erstreet could have been forced to remove his lumber from this area at almost any time. Whether the lease was from month to month, or from quarter to quarter, does not appear, although in Mr. Marcom’s testimony there is some reference to the fact that the parties negotiated every quarter for rent. At most, it appears that this was a very short term and indefinite arrangement, so much so that the tenant did not claim any loss of leasehold value by reason of having to vacate this tract.

As to the six-acre tract, the proof was likewise extremely indefinite and sketchy, to the point that the jury returned and asked specifically what rent was being paid by the tenant under his lease. Originally there was a written lease between Mr. Ov-erstreet and the mother of Mr. Marcom, for a term of one year beginning March 1, 1964 and ending March 1, 1965. There were provisions in this written lease under which the tenant could, by giving written notice, extend the lease for additional periods of one year each, but in no event later than March 1, 1974. The testimony, however, is uncontradicted that no such written notice had ever been given by Mr. Overstreet, so that technically the written lease had expired in 1965. Thereafter Mr. Overstreet was simply holding under an oral arrangement with Mr. Marcom, the terms and conditions of which are entirely undeveloped in the proof. The original written lease called for rent at the rate of $40 per month, for the entire six acres, but the testimony of the parties was that at the date of taking, September 27, 1971, rent was being paid at the rate of $100 per month. How many more months the tenant had to remain in possession under this tenuous arrangement is not clear, although it is apparent that the landowner felt that the tenant, at most, could not have remained in possession beyond March 1, 1972 without further negotiations. The tenant, however, claimed a right to remain in possession through March 1, 1974, and predicated his claim for loss of leasehold value on that period; that is, the tenant contended that he was entitled to remain in possession for an additional thirty months after the date of taking. Since the jury allowed him a substantial award for loss of leasehold value, which is not questioned here, the jury must have accepted the claim of the tenant, insofar as the State was concerned. From a strictly legal standpoint, however, based upon the evidence presently in the record, it is doubtful that the tenant could have enforced a right of possession against his landlord beyond March 1, 1972, approximately five months from the date of taking, and the landlord’s counsel pointed out that the tenant would have had to move his inventory at the expiration of his lease unless there were further negotiations between the parties.

The fragile nature of the tenancy is relevant to the claim of moving expenses. The tenant did dismantle the sawmill and its machinery, but did not relocate it, claiming that he had never found another suitable site for his milling operation. He testified that he had actually expended about $2500 in dismantling and storing the machinery and equipment, but claimed a total of $35,-000 in moving expenses for the machinery and equipment, contending that it would cost this much in labor and materials to dismantle the sawmilling operation, move and reinstall the equipment. Cross-examination of the tenant revealed a number of weaknesses and discrepancies in this testimony, but no contrary evidence was offered by the State. As stated, the date of taking was September 27,1971. The trial occurred over two years later, November 19 and 20, 1973. The record is silent, however, as to when the sawmill machinery and equipment were actually dismantled and placed in storage. The testimony of the respondent left the decided inference that he intended to re-enter the sawmilling business, and he made a claim for expenses in connection with the laying of concrete footings, electrical wiring and other expenses incident to re-installation of his equipment. The record, however, is extremely meager as to whether he in fact did have any definite plans to re-enter the business and as to whether these expenses in fact would ever be incurred.

On the date of taking Mr. Overstreet had stored on the six-acre tract and the adjacent tract approximately 300,000 board feet of logs and approximately 1,500,000 board feet of hardwood lumber. The testimony was that green, or unseasoned, lumber sells on the market for substantially less than seasoned lumber of this type, which is primarily used in the manufacture of furniture. The testimony also showed that the optimum period for air drying, or seasoning, of lumber, prior to its being kiln-dried, covers a period of several months, averaging about six months. It is contended that on the date of taking there was some seasoned lumber in the various stacks on the premises, but a great deal of green lumber, in all stages of drying, and that the maximum value could have been derived from this inventory only by its being held until it had become fully seasoned.

Respondent elected not to incur the cost of moving this large inventory of lumber to a new site, but rather sold it at the site to other persons in the lumber business. The terms of these sales are not shown in the record, and there is no testimony whatever as to when the sales occurred, or as to what arrangements, if any, had been made by the tenant with the State for remaining on the premises after the date of taking. The tenant did remain in possession for some period of time after the date of taking, although the date is not shown, because his witnesses testified to having inspected the premises during the month of October 1971. It was the claim of the tenant, however, that he was forced either to move the inventory of lumber or to sell it, and it is the argument of his counsel, although not demonstrated by evidence, that he was not granted sufficient time by the State to permit the lumber to season and be sold at its highest value. It is thus claimed that there was an “involuntary conversion” of the lumber, and the tenant claimed damages for moving expenses of the lumber, which were never incurred, or alleged loss of the value of the inventory, whichever was less. He was permitted to offer evidence to the jury, over objection of the State, and the testimony conclusively showed that the alleged loss in value was greater than the alleged cost of moving, so that the ultimate claim rested upon the claimed moving expenses.

The issue, of course, is whether or not one can recover for moving expenses under the Tennessee statute when in fact such expenses were never actually incurred and never would be incurred.

The Court of Appeals concluded, properly in our opinion, that the Tennessee statutes do not allow any claim for loss of profits, or for damages for an alleged involuntary conversion of a stock in trade. The Court of Appeals was of the opinion, however, that the tenant elected to sell his inventory rather than move it, because the State did not pay into court enough money to cover the moving expenses. There is no testimony to this effect in the record from any witness. There is nothing but argument of counsel in support of any such contention, wholly unsupported in the record, and we believe that the Court of Appeals was in error in concluding that the sale made by the tenant was in any way the result of an alleged inadequate initial deposit by the State.

The facts in connection with the deposit are uncontradicted. Initially the State paid into court an estimated sum for the damages of the landowners, but a separate and itemized estimate as to the tenant, Mr. Ov-erstreet. Its initial deposit included $5000 to Mr. Overstreet for damages to his leasehold and $6500 labeled as moving expenses. Thereafter, and within a short time, the State paid an additional $13,000 into court for the benefit of Mr. Overstreet, making a total deposit of $24,500. Mr. Overstreet immediately withdrew all of these funds without prejudice, as authorized by statute. He filed no other pleadings in the case at any time. His withdrawals occurred in September 1971, and at no time did he testify or suggest that he concluded to sell his inventory, rather than move it, because of lack of funds or inadequate payment on the part of the State. At the trial Mr. Overstreet received $15,042.25 from the jury as the award for damages to his leasehold and leasehold improvements — a sum substantially less than the amount paid in by the State for these items. Had it not been for his moving expenses, Mr. Over-street would have had to make a refund to the State, insofar as the claim for leasehold and leasehold improvements was concerned.

There is no testimony either from Mr. Overstreet or from any representative of the State as to how the estimates made by the State were arrived at, as to why an additional deposit was made, or as to whether the State had any information about Mr. Overstreet’s decision to sell his inventory rather than move it. As previously pointed out, Mr. Overstreet’s testimony was that his decision to sell was based upon lack of time to permit the lumber to season, rather than any financial hardship by reason of an inadequate deposit. Accordingly we are not in agreement with the ruling made by the Court of Appeals that upon retrial Mr. Overstreet may be permitted to recover the estimated costs of removal if he can prove that his decision to sell was based upon lack of an adequate deposit by the State.

We agree with the Court of Appeals, and the State itself concedes, that State officials should make a good faith estimate of damages and expenses when making initial deposits into court. We further agree that if the matter is timely raised by the landowner, the trial judge might cause some inquiry to be made as to whether the State had or had not exercised good faith in connection with its estimate. Nothing of this sort occurred in the present case, however, and at no time, by pleadings or testimony, did respondent ever suggest in the trial court that he was forced to sell his inventory because the State had not paid in enough funds to enable him to bear the expense of moving. Since this was never made an issue during the trial of the case, we are of the opinion that the Court of Appeals was in error in holding that such an issue could be made or developed upon the remand and new trial.

Prior to 1951, there was no provision in the Tennessee condemnation statutes for the cost of the removal of personal property or fixtures in condemnation proceedings. Cases decided prior to that date made it clear that the constitutional requirements of just compensation to a property owner did not embrace damages for such removal, or for loss of value in connection with such removal. See Lenzi v. Memphis Union Station Company, 3 Tenn.Civ.App. 218 (1913). Provision was first made for the payment of moving expenses by Chapter 176 of the Public Acts of 1951. As codified in T.C.A. § 23-1414, the statute provided, at the time of the taking in question here:

“Where the removal of furniture, household belongings, fixtures, equipment, machinery, or stock in trade is made necessary by the taking, the reasonable expense of such removal shall be considered in assessing incidental damages. The reasonable expense of the removal of such chattels shall be construed as including the cost of: any necessary disconnection, dismantling or disassembling, the loading, and drayage to another location not more than ten (10) miles distant, and the reassembling, re-connecting, and installing in such new location.”

It is clear that the moving expenses here provided are classified as incidental damages only, and not as part of the value of property actually taken. The 1951 statute, as amended, has been construed in several reported cases in this state.

In the case of Knoxville Housing Authority, Inc. v. Bush, 56 Tenn.App. 464, 408 S.W.2d 407 (1966), the Court held that the statutes providing for incidental damages to a landowner did not permit reimbursement to a property holder of a prepayment penalty on a mortgage, made necessary by the condemnation. The Court said:

“From the above authorities, it is evident that all pecuniary losses suffered by a landowner as the result of an eminent domain proceeding are not compensable, but only those damages which are embraced within the eminent domain statutes. These damages, as shown above, are those relating to the part of the land remaining to a landowner after a part of his land has been taken for a public improvement, and the reasonable expense of removing furniture, household belongings; fixtures, equipment or machinery made necessary by the taking of the property, as defined in T.C.A. 23-1414 above. A mortgage prepayment penalty does not fit either category, and therefore cannot be recovered.” 56 Tenn.App. at 470, 408 S.W.2d at 410.

The Court further stated:

“The appellate courts of this state have held consistently that incidental damages are a creature of statute and can be awarded only where the pecuniary injury to the condemnee is embraced within the legislative enactments.” 56 Tenn.App. at 471, 408 S.W.2d at 410.

In the case of Thompson Brothers Investment Company v. State ex rel. Pack, 60 Tenn.App. 92, 444 S.W.2d 180 (1969), a claim was made for the moving expenses of certain ice manufacturing machinery in connection with condemnation proceedings. The property on which the machinery was actually situated was not taken, but merely an adjacent part of the tract. The proof showed that there was no intention on the part of the landowners to move the machinery in question, and it was not in fact moved.

After quoting the provisions of T.C.A. § 23 — 1414 above set out, the Court said:

“Under the above quoted statute, it will be noted that the removal expenses are recoverable only where such expenses are, ‘made necessary by the taking.’ It is obvious in the instant case that the taking of part of the property, on which part the ice machinery in question was not located, did not make necessary the removal of the ice machinery from that part of the property not taken. The ice machinery in question had been there, unmoved since 1958, and Mr. Vance Maynard Thompson testified that his family had no intention of moving the ice machinery in question except for the purpose of sale. . . . Obviously a sale of the machinery can be made from where it is now (undisturbed by the condemnation proceeding), just as well as could be made from any other location within ten miles of its present location. In spite of information of the taking furnished to defendant in 1959, it had not moved the machinery up to now and there is no good reason for assuming or adjudicating that the taking involved in the instant case has made necessary its removal within any foreseeable future.” 60 Tenn.App. at 98, 444 S.W.2d at 183.

The Court accordingly held that the claim for the estimated expenses in moving this machinery was not embraced within the statute and was properly disallowed by the trial court.

In the case of Nashville Housing Authority v. Hill, 497 S.W.2d 917 (1972), the Court of Appeals did allow expenses of dismantling and removing machinery and other incidental moving expenses in connection with the condemnation of a manufacturing plant, where the lessee had in fact incurred the expenses and had proven the amount thereof.

In the case of Memphis Housing Authority v. Memphis Steam Laundry-Cleaners, Inc., 225 Tenn. 46, 463 S.W.2d 677 (1971), this Court construed the provisions of T.C.A. § 23-1414 and held that costs of moving fixtures and equipment in connection with the condemnation of a large commercial laundry were recoverable, and that it was not necessary that entry of judgment be deferred until possession of the property had been turned over to the state and the amount of the moving expenses had actually been incurred and ascertained. The Court said:

“The housing authority in its first assignment of error contends that the payment of moving expenses should not be required until after they have been actually incurred. This overlooks the provision that moving expenses are incidental damages. Such damages are to be paid along with the judgment for the taking and cannot be deferred until the cost of removal has been incurred. This assignment of error is overruled.” 225 Tenn. at 53, 463 S.W.2d at 680.

It is apparent from these cases that the Tennessee statute permits recovery only of moving expenses which have actually been incurred at the date of the trial or which can be shown by testimony to be reasonably necessary in the future and which can be accurately estimated by such testimony.

In the present ease, respondent offered testimony as to what it would have cost to remove the inventory on hand at the date of the taking, but at the same time his proof showed that he did not incur these expenses, except for approximately $2500, expended in removing the remnants of the inventory “right at the last.” One of the purchasers of the inventory did testify that respondent removed some of the lumber which was purchased by this witness, but the amount of expense incurred by the respondent in doing so is not shown in the record. Had this been shown, or if it can be shown at the new trial, this item of expense would be recoverable, in our opinion, under the provisions of T.C.A. § 23-1414.

There is simply no provision in the statute, however, for loss of profits incurred upon the liquidation of an inventory, whether the liquidation be voluntary or involuntary. Nor is there any provision for the recovery of moving expenses to be incurred in the future, unless the amount of these and the reasonable necessity therefor can be shown by the evidence. In the present case respondent had a statutory right to move his inventory and recover the reasonable cost thereof, had he seen fit to do so. Instead, however, he chose to sell the inventory to others, and did not in fact incur more than a fraction of what the moving cost otherwise would have been.

A similar situation was presented to the Supreme Court of Nebraska in the case of Bickels v. State, 178 Neb. 825, 135 N.W.2d 872 (1965). There the owners of a grocery business were forced to move their business and suspend what had been a profitable operation, by reason of an eminent domain proceeding. They sold the stock of goods by discount sales in the ordinary course of trade or by making quantity sales to other grocers. They then sold their fixtures on the site. Under a statute permitting recovery of “the reasonable cost of any necessary removal of personal property from the real estate being taken . . . ”, the eon-demnees sought a jury instruction permitting allowance of removal costs. Commenting on this claim, the Court said:

“Appellants complain of the refusal of a tendered instruction which would have permitted the allowance of the costs of removal if the jury found the stock and fixtures were in the premises on the date of condemnation, regardless of whether any removal expense was incurred. We suggest that the statute permits the recovery of the cost of any necessary removal of personal property from the real estate being taken. Certainly, if the personal property is sold in such manner that the condemnee incurs no expense in its removal, it is hard to understand on what basis he should be compensated. In appellants’ case the bulk of the merchandise was sold through regular trade channels. The hard-to-move items were sold to other grocers, and were delivered by the appellants themselves to the purchasers. There is, however, no evidence in this record on the cost of these deliveries. If such expenses were proved, they would be recoverable. The fixtures, except for the dairy case, were sold on the premises and were moved by the purchasers.” 135 N.W.2d at 872, 875.

We believe that the principles announced in this case and in the Tennessee cases above discussed are controlling here, and that the trial judge was in error in permitting evidence to be considered by the jury as to estimated removal costs which were never actually incurred and which in fact will never be incurred. Further, the trial court should not have permitted introduction of testimony as to the alleged loss of profits from the liquidation of the inventory. No evidence along either of these lines will be permitted upon the retrial of this case. Respondent should, however, be permitted to prove the amount actually expended by him in the removal of inventory, including that sold to the purchasers, if such evidence is available and the amounts can reasonably be ascertained.

The judgment of the Court of Appeals, as modified herein, is affirmed, and the cause is remanded to the trial court for a new trial as to the issue of moving expenses only. Costs incident to the appeal will be taxed equally to the parties, as ordered by the Court of Appeals, and costs in the trial court will abide the result there.

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

      . As to another tenant involved in the same proceedings, an order of possession was not entered until April 7, 1972.

      . One witness testified that the inventory $175,000. value at date of taking was in excess of

      . See also Bothwell v. United States, 254 U.S. 231, 41 S.Ct. 74, 65 L.Ed. 238 (1920), disallowing losses from alleged forced sale of cattle resulting from condemnation proceedings.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Hugh L. BRIGGS and Montro Taylor, Jr., Respondents.
    Supreme Court of Tennessee.
    Feb. 2, 1976.
    John B. Hagler, Jr., Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel), for petitioner.

      Stanley Fink, Walker Gwinn, Memphis, for respondents.
   OPINION

BROCK, Justice.

The respondents, Hugh Briggs and Mon-teo Taylor, Jr., hereinafter called defendants, were convicted in the criminal court for Shelby County of first degree murder and robbery with a deadly weapon. The punishment assessed for the murder conviction was 100 years in the penitentiary and for the robbery conviction, life imprisonment. The Court of Criminal Appeals reversed the judgment of the trial court in each case with respect to each defendant. The State petitioned this Court for review by certiorari which was granted.

The record indicates that on December 19,1971, the defendants and an unidentified accomplice entered a Memphis grocery supermarket disguised and armed. Immediately upon their entry into the store, the defendant Taylor shot and killed Mr. Alfred Frazier, the produce manager of the store. They then proceeded to rob the supermarket safe of its contents and fled the scene. At the trial the State was permitted, over the objection of the defendants, to introduce evidence concerning a robbery by the defendants of another supermarket subsequent to the robbery here on trial. Upon the authority of Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 (1950), the Court of Criminal Appeals reversed the convictions holding that there were no circumstances in this case which would render the evidence of the other robbery relevant to the issues on trial. With this action of the Court of Criminal Appeals, we are in complete agreement, and we concur in the reversal of the judgments in the trial court and the remand of these cases to the trial court for a new trial.

Nevertheless, we have granted certiorari to consider another question which will arise on the new trial. That question is whether or not an accused who murders a person during the course of perpetrating a robbery may be convicted both for the armed robbery and for murder in the first degree committed in the perpetration of the robbery.

The Court of Criminal Appeals held that convictions for both offenses could not stand, relying upon the decision of this Court in Acres v. State, 484 S.W.2d 534 (Tenn.1972). Recently, this Court in State v. Black, 524 S.W.2d 913 (Tenn.1975), dealt rather extensively with this general problem which was identified as “actually one of identity of offenses, which is one facet of the broader subject of double jeopardy.”

The Acres opinion has been generally understood as authority for the proposition that one who commits a murder in the perpetration of a robbery cannot be convicted both for the robbery and for first degree murder; the theory being that the robbery is a lesser included offense within the offense of first degree murder because under our statute, T.C.A. § 39-2402, the perpetration of the robbery serves, in lieu of premeditation, to constitute one of the essential elements of first degree murder.

So understood, the decision in Acres is contrary to the great majority of the decisions in this country dealing with this specific issue. State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); McChan v. State, 9 Md. App. 311, 264 A.2d 130 (1970); Brown v. State, 10 Md.App. 416, 271 A.2d 194 (1970); State v. Moore, 326 Mo. 1199, 33 S.W.2d 905 (1930); State v. Calvo, 240 La. 75, 121 So.2d 244 (1960), cert. den. 81 S.Ct. 170, 364 U.S. 882, 5 L.Ed.2d 103 (1960); Centers v. Commonwealth, 318 S.W.2d 57 (Ky.1958); State v. Orth, 106 Ohio App. 35, 153 N.E.2d 394 (1957); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (1965), 11 A.L.R.3d 828; Commonwealth v. Crecorian, 264 Mass. 94, 162 N.E. 7 (1928); Duvall v. State, 111 Ohio St. 657, 146 N.E. 90 (1924); People v. Johnson, 67 Cal.App.2d 195, 153 P.2d 784 (1944); Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963), cert. den. 84 S.Ct. 682, 376 U.S. 922, 11 L.Ed.2d 617 (1964). The holding in each of the foregoing cases is that robbery is neither the same nor an included lesser offense within the crime of murder in the first degree and that convictions for both offenses may properly be allowed to stand when murder is committed during the perpetration of a robbery. The reasoning which supports the decision in each of the foregoing cases is ably stated by the Supreme Court of Idaho in State v. Hall, supra, to-wit:

“The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. .
******
“An ‘included offense’ is one which is necessarily committed in the commission of another offense; or one, the essential elements of which, are charged in the information as the manner or means by which the offense was committed. .
“The crime of murder may be committed without the commission of any of the felonies named in the [felony-murder] statute, and the allegation that the homicide was committed while its perpetrators were engaged in a robbery does not charge that the robbery was the manner or means by which the murder was accomplished. The murder was charged to have been committed by means of a gun. The robbery was alleged only as a condition or circumstance characterizing the murder as first degree. The robbery was not an ‘included offense’ in the murder charge. It is clear from the statutory definitions, supra, that murder and robbery are separate, distinct and independent crimes. Neither is the ‘same offense’ as the other, within the constitutional provision against double jeopardy, and a prosecution for one does not bar a subsequent prosecution for the other on that ground.” Id., 383 P.2d at 605, 606.

In these cases the courts were dealing with statutory definitions of “felony-murder” substantially equivalent to the definition in this State contained in T.C.A. § 39-2402, which provides:

“An individual commits murder in the first degree if:
(4) he commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb.”

The Acres decision was based essentially upon the “same transaction” rule for determining whether or not two offenses are identical, as is shown by this statement taken from that opinion:

“There is no doubt that these two offenses were committed at the same time and were parts of a single continuing act inspired by the same criminal intent essential to each offense, and were susceptible to but one punishment, and conviction of one is a bar to conviction of the other . . . .” 484 S.W.2d at 537.

But, the “same transaction” rule has been expressly rejected twice by this Court since the decision in the Acres case. Duchac v. State, 505 S.W.2d 237 (Tenn.1973); State v. Black, supra. Thus, not only is Acres contrary to the great weight of authority in this country on the specific issue here involved, it was based upon a legal theory which is no longer recognized as valid by this Court. We, therefore, recognize the inevitable and declare that Acres is overruled.

We find neither reason nor authority for holding that one who commits murder during the perpetration of a felony named in the T.C.A. § 39-2402(4) cannot or should not be convicted and punished for both the offense of murder in the first degree and for the named felony. Nothing in the statutory definitions of murder in the first degree and of the felonies listed in T.C.A. § 39-2402(4) indicates a legislative intent that conviction and punishment for both offenses should not be permitted. Moreover, we agree with the holding in each of the cases from our sister states, supra, that the felony during the perpetration of which a murder is committed is neither the same offense as murder in the first degree nor a lesser offense included within that charge; hence, to permit convictions and punishments for both murder in the first degree and the other felony to stand in no way offends the constitutional protection from double jeopardy.

The judgment of the Court of Criminal Appeals reversing the conviction of each defendant of the offense of armed robbery and dismissing the indictments charging armed robbery is reversed and the robbery charges are remanded to the trial court for a new trial; the judgment of the Court of Criminal Appeals reversing the convictions for murder in the first degree and the remanding of the murder charges to the trial court for a new trial, as to each defendant, is affirmed. Costs incurred in this Court are taxed against the defendants.

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


text:
    Lon A. RICKETS et al., Appellants, v. Margie SEXTON et al., Appellees.
    Supreme Court of Tennessee.
    Feb. 2, 1976.

      John T. Buckingham, Headman, Stivers, Buckingham & Humphrey, Knoxville, for appellants.
    Walter L. Fuller, Jr., Oak Ridge, John M. Davis, Wartburg, for appellees.
   OPINION

HENRY, Justice.

The only question presented on this appeal is the right of a plaintiff to take a voluntary nonsuit or to dismiss an action without prejudice, under the provisions of Rule 41.01, Tenn.R.Civ.P., in the face of the resistance of his adversary.

The Chancellor, apparently pitching his decision on the age and infirmity of one of the parties defendant, held that a nonsuit would be prejudicial and “disallowed” the same. On the same day, when plaintiffs did not come into court to prosecute their action, he dismissed the complaint with prejudice.

We reverse.

As we held in Stewart v. University of Tennessee, 519 S.W.2d 591 (Tenn.1974): Rule 41.01(1) Tenn.R.Civ.P., provides for the free and unrestricted right of the plaintiff (at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action without prejudice except:

a. in class actions
b. in cases where receivers have been appointed
c. where precluded by specific statute
d. in cases where a motion for summary judgment is pending.

The rule specifies that a plaintiff “shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause”. This portion of the rule is not dependent upon the determination of the trial judge. The lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it. It is not necessary that he approve the action of plaintiff’s counsel by signing any order; nor may he nullify the rules by an order “disallowing” the nonsuit. All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions above noted, is the filing of a written notice of dismissal.

In this case plaintiffs’ counsel, “gilded the lily” by filing a pleading captioned “motion for voluntary dismissal” which was actually in the form of an order tendered for the signature of the Chancellor. It bore the signature of plaintiffs’ then counsel of record. This hybrid document was filed one day before the trial date. We hold that it was substantial compliance with the rules and constituted a “written notice of dismissal.”

While plaintiff is master of his suit and may dismiss at his pleasure before trial, and without the concurrence of the trial judge, better practice would demand a pro forma order, filed after plaintiff’s nonsuit, to the end that the dismissal may be reflected upon the minutes of the court.

The right of a plaintiff to take a nonsuit is subject to the further qualification that it must not operate to deprive the defendant of some right that vested during the pending of the case. Anderson v. Smith, 521 S.W.2d 787 (Tenn.1975). No such right vested in the instant case.

Defendants resisted the nonsuit upon the grounds that it would deprive them of unspecified “substantive rights concerning their defenses which would not be available in a second suit”; that they would be prejudiced by delay; and that one of them was “totally disabled and has been under extreme tension during the pendency of the suit.” The Chancellor evidently was influenced by the fact that one of the defendants was 69 years old and in poor health. This is regrettable but is not a basis for denying plaintiffs their clear right to a dismissal without prejudice.

The judgment of the Chancellor is reversed and this cause is dismissed, without prejudice.

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


text:
    Charles L. MOULTON et ux., Pauline M. Moulton, Appellants, v. FORD MOTOR COMPANY and Hull Dobbs, Appellees.
    Supreme Court of Tennessee.
    Feb. 2, 1976.
    Art Roberts, Jr., Paul T. Gillenwater, Sumter D. Ferguson, Jr., Knoxville, for appellants.
    Louis C. Woolf, McCampbell, Young, Bartlett, Woolf & Hollow, Hugh W. Morgan, Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, for appellees.
   OPINION

HENRY, Justice.

This civil action seeks to re-litigate the celebrated case of Moulton v. Ford Motor Company, 511 S.W.2d 690 (Tenn.1974).

I.

On 5 July, 1970, appellants were injured and damaged while driving a Ford automobile. They instituted suit on 13 May 1971, alleging that the proximate cause was a defective steering mechanism. The automobile was purchased on 30 April 1969. This Court, as then constituted, over the dissent of the present Chief Justice, and relying, in part, on Jackson v. General Motors Corp., 223 Tenn. 12, 441 S.W.2d 482 (1969) held that the cause of action was barred by the one-year statute of limitations as contained in § 28-304 T.C.A.

The instant suit presents precisely the same cause of action. Defendants moved to dismiss upon the basis of res judicata. The trial judge sustained the motion and dismissed the action.

We affirm.

II.

Appellants’ approach is ingenious. They assert that since the decision in their first suit Tennessee decisional law has undergone a substantial change and, in effect, they urge that they should be the beneficiaries of these changes.

First, we are cited to Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974), wherein this Court held in a medical malpractice action, that the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

Next we are cited to McCroskey v. Bryant Air Conditioning Company, 524 S.W.2d 487 (Tenn.1975), wherein we expressly overruled Jackson v. General Motors, supra.

Appellants’ counsel argues with commendable zeal that the instant suit represents their first opportunity to seek redress for their injuries in the courts of the state.

The policy rationale in support of res judicata is not based upon any presumption that the final judgment was right or just. Rather, it is justifiable on the broad grounds of public policy which requires an eventual end to litigation. Akin to statutes of limitations, the doctrine of res judicata is a “rule of rest” and “private peace”. See 2 Freeman on Judgments, § 626,1320 (5th ed. 1925).

The words of Justice Caruthers in Warwick v. Underwood, 40 Tenn. 238, decided over a century ago, have continuing relevance:

. It is not material on this point whether the finding of the jury was right or not in the former suit. That cannot be questioned any more between the same parties or their privies. Right or wrong the question was finally closed, unless a new trial had been obtained in the same suit. This rule is not alone for the benefit of the parties litigant, to put an end to strife and contention between them, and produce certainty as to individual rights, but it is also intended to give dignity and respect to judicial proceedings, and relieve society from the expense and annoyance of indeterminable litigation about the same matter. 40 Tenn. at 241

This action presents an unfortunate conflict between the competing principles of justice and finality in the law. It is essential to our system of justice that we recognize a proper balance between stability and change. Strong considerations of public policy demand that our jurisprudence be adapted to contemporary conditions and that it expand to better serve evolving standards of fundamental fairness and due process. These dictates of justice and morality prompted our action in Teeters and McCroskey. Strong considerations of public policy demand that they not be applied in such a manner as to revive cases wherein contrary results were reached. Such an application would have devastating results on the stability of judgments and would operate to preclude any responsible court from taking a forward step in the law.

We hold that the decision in Moulton v. Ford Motor Co., supra, fully, finally and irrevocably decided the controversy between these parties and, therefore, is res judicata. Subsequent decisions by this Court are of no significance in the context of the instant suit.

The judgment of the trial judge is

Affirmed.

FONES, C. J., BROCK and HARBISON, JJ., and HYDER, Special Justice.

      . If we were to permit this suit to be reopened, considerations of fairness would demand permission to re-litigate Jackson v. General Motors. Moreover, the gate would be ajar for entry by those whose suits were never initiated because of Jackson and Moulton.