author: SOMERVILLE, Judge.

text:
    Georgia H. CORDER, Appellant-Respondent, v. Nathan CORDER, Respondent-Appellant.
    Nos. KCD 27665, KCD 27956.
    Missouri Court of Appeals, Kansas City District.
    Jan. 31, 1977.

      Charlotte P. Thayer, Thayer, Gum, Ernst Y. Wickert, Grandview, for respondent-appellant.
    Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellant-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

This is a dissolution of marriage proceeding involving cross-appeals. Neither party questions the dissolution of the marriage; however, the opposite is true with respect to all other provisions of the decree.

At the very threshold of appellate review this court is faced with a basic question of decisive significance. Does jurisdiction lie in this court to entertain the cross-appeals? Although neither party has questioned this court’s jurisdiction, it may not be conferred by waiver, silence, acquiescence, or consent, and it is incumbent upon this court to sua sponte inquire into and determine whether it has jurisdiction. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); L. F. H. v. R. L. H., 543 S.W.2d 520, handed down October 5, 1976, by the Missouri Court of Appeals, St. Louis District; and Taney County v. Addington, 296 S.W.2d 129, 129[1] (Mo.App.1956).

The vexing question of whether jurisdiction lies in this court to entertain the cross-appeals emerges as follows: The family home, “Lot 91, Silver Lake, a subdivision in Cass County, Missouri”, was acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act (§§ 452.300, et seq., RSMo Supp. 1973), and title thereto was vested in the wife and husband as tenants by the entirety. All furnishings and furniture therein, and all other personal property not otherwise specifically mentioned, was apparently acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act and treated as owned by the wife and husband as tenants by the entirety. The decree below contained, inter alia, the following provision: “That the following described real estate, to-wit: Lot 91, Silver Lake, a subdivision in Cass County, Missouri, together with all furnishings and furniture located therein and all other personal property are hereby declared to be marital property; that Petitioner and Respondent shall each own an undivided one half (½) interest therein as tenants in common.” A colloquy between the trial court and counsel occurred prior to entry of the decree with respect to the real property, at which time the trial court stated: “I don’t care what they do with it. They each have a half interest in it. I’m going to dissolve the marriage, leave them right where the real estate law put them which is the way it should be.”

Notwithstanding the fact that the wife does not question this court’s jurisdiction to entertain the cross-appeals, she vigorously contends, among other points relied upon, that the trial court’s purported division of “marital property” lacked “finality” and did not constitute a “just” division as contemplated in and commanded by Section 452.-330, RSMo Supp.1973.

It is appropriate at this point to quote Section 452.330, supra, in full in order to put the jurisdictional question in proper perspective:

“1. In a proceeding for nonretroactive invalidity, dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:
(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse:
(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
(4) The conduct of the parties during the marriage.
“2. For purposes of sections 452.300 to 452.415 only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage.
“3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coown-ership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.
“4. The court’s order as it affects distribution of marital property shall be a final order not subject to modification.
“5. A certified copy of any decree of court affecting title to real estate shall forthwith be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situate by the clerk of the court in which the decree was made, and the filing fees shall be taxed as costs in the cause.” (Emphasis added.)

The husband counters the wife’s assertions that the purported division of “marital property” lacked “finality” and did not constitute a “just” division as contemplated in and commanded by Section 452.330, supra, with the following argument. Under “prior law, upon divorce, any property held in tenancy by the entirety, is converted to a tenancy in common with an undivided ½ interest in each party.” He cites Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963), and Section 442.450, RSMo 1969, to support this statement with respect to the real property. Although not cited by the husband, Nye v. James, 373 S.W.2d 655, 659 (Mo.App.1963), supports the statement with respect to the personal property. As a capstone, the husband argues that any division of “marital property” under Section 452.330, supra, giving either spouse any interest other or greater than an undivided one-half (½) interest as tenants in common in property which was acquired as tenants by the entirety prior to the effective date of Section 452.330,supra, “would be unconstitutional in that it would operate to divest vested rights, impair obligation of contract, and deprive persons of property without due process of law.” In support thereof the husband cites various provisions of the state and federal constitutions, namely: Missouri Constitution, Art. I, §§ 10 (due process) and 13 (prohibiting the enactment of laws “impairing the obligation of contracts” or which are “retrospective” in their “operation”); and U.S. Constitution, Art. I, § 10 (prohibiting any state from passing any law “impairing the Obligation of Contracts”) and Amend. XIV, § 1 (due process). At this juncture it is important to take cognizance of the true nature and thrust of the husband’s constitutional argument. He does not contend that Section 452.330, supra, is unconstitutional. He does contend however that construing Section 452.330, supra, as being applicable to property acquired as tenants by the entirety prior to its effective date would be unconstitutional. See McManus v. Park, 287 Mo. 109, 229 S.W. 211 (1921).

As the controversial provision of the decree purported to do nothing more than declare that the spouses each owned an undivided one-half (½) interest in the “marital property” as tenants in common, as would have occurred by operation of law prior to the effective date of Section 452.-330, supra, there was no division of “marital property” (as hereafter discussed) as contemplated in and commanded by Section 452.330,supra, unless the property, by virtue of the date it was acquired, was exempt from the control and application of Section 452.330,supra, because of the constitutional grounds raised by the husband. If a division of the “marital property” as required by and envisioned in Section 452.330, supra, was not precluded on constitutional grounds, then the trial court did not exhaust its jurisdiction and the decree was not a final judgment or order and was not appealable. L. F. H. v. R. L. H., supra; Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976); Section 512.020, RSMo 1969; and Rules 81.01 and 81.04. As pointed out in Pendleton v. Pendleton, supra, at 906, and quoted with approval in L. F. H. v. R. L. H., supra, a trial court cannot “abdicate its jurisdiction to decide the parties’ property rights. . . .”

This court first turns to the husband’s premise that constitutional considerations place the “marital property” in question beyond the reach of Section 452.330, supra, because of its acquisition date. It has been held in this state, as well as in other jurisdictions, that the marital relation is subject in all respects to the reasonable exercise of the state’s police power. Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo. banc 1959), cert. denied 361 U.S. 964, 80 S.Ct. 595, 4 L.Ed.2d 546 (1960); and Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 501 (1974). As cogently stated in Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654, 657 (1888), “[mjarriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature . . . [and] [t]hat body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.”

If Section 452.330, supra, insofar as it applies to “marital property” acquired prior to its effective date and held by a husband and wife as tenants by the entirety, reasonably furthers a valid public interest and is not otherwise palpably unreasonable or unduly discriminatory, then it is immune from the constitutional attacks launched by the husband. Brawner v. Brawner, supra, at 815; and Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 981, 13 S.W.2d 628, 634 (1929). As stated in Bellerive Investment Co., supra, 13 S.W.2d at 634, “[i]t has been definitely and clearly established and settled, by the decisions of this court and of the federal Supreme Court, that a statute or a municipal ordinance, which is fairly referable to the police power of the state or municipality, and which discloses upon its face, or which may be shown aliunde, to have been enacted for the protection, and in furtherance, of the peace, comfort, safety, health, morality, and general welfare of the inhabitants of the state or municipality, does not contravene or infringe the several sections of the state and federal Constitutions invoked by the appellants herein, and cannot be held invalid as wrongfully depriving the appellants of any right or privilege guaranteed by the Constitution, state or federal; the reason and basis underlying such decisions being that the personal and property rights of the individual are subservient and subordinate to the general welfare of society, and of the community at large, and that a statute or ordinance which is fairly referable to the police power has for its object the ‘greatest good of the greatest number.’ ” (Citing cases.) The husband’s argument that Section 452.330, supra, if applied to tenancy by the entireties property acquired prior to its effective date, would “impair obligation of contract” as prohibited by Art. I, § 10 of the Constitution of the United States, is laid to rest by Maynard v. Hill, supra. Therein it was held that the marriage relation, and reciprocal rights arising therefrom, do not come within the prohibition against state legislation impairing the obligation of contracts. The wisdom of legislation enacted in exercise of the police power is not open to judicial review — judicial review is limited to determining whether a real and substantial affinity exists between such legislation and the discernible public interest sought to be served and whether it is so palpably unreasonable or unduly discriminatory as to unjustifiably infringe upon constitutionally guaranteed rights. State ex rel. Kansas City v. Public Service Com’n., 524 S.W.2d 855, 862 (Mo. banc 1975).

Public policy sought to be served by Section 452.330, supra, is multi-faceted and self-evident. Previously, the contributions of a wife regarding the accumulation of property during the marriage relation, either in the sense of direct financial contributions or in the sense of indirect contributions by virtue of her services as a homemaker, were largely ignored. Regarding property accumulated during the marriage relation and held in the husband’s name alone, a wife, even though an innocent and injured party, upon severance of the marriage had only the concept of alimony (subject to termination on remarriage of the wife or the death of the husband, or future reduction occasioned by the husband’s diminished financial ability), tenuous at best, to which to turn. Regarding property accumulated during marriage and held by the husband and wife as tenants by the entirety, the respective contributions of the spouses, whether direct or indirect in nature, were of no moment whatsoever, and their rights and interests in such property were regimented by operation of law. Upon termination of the marriage relation, fixing the rights and interests of a wife and husband in such property by operation of law, due to its inherent inflexibility, made it impossible to accommodate any consideration of what might be a just or fair division. If a just or fair division occurred in a given case it was a matter of sheer chance rather than a knowledgeable and responsible determination. Moreover, the division of property by operation of law was a halfway measure at best since it left the parties with a unity of possession after the marriage bond was severed, which, in many instances, continued rather than alleviated the acrimony and discord which prompted scission of the marriage relation and relegated the parties to further litigation in order to sever the relationship attached to the common ownership of property.

Section 452.330, supra, seeks to redress the patent inequity and rancorous aftermath heretofore attached to the division of property accumulated during the course of a marriage which now falls within the definition of “marital property”. By the same token, it seeks to effectively minimize the necessity for recourse to further litigation to completely sever all relations between the parties. By so doing, the application of Section 452.330, supra, to “marital property” acquired both prior and subsequent to its effective date (regarding causes of actions within the purview of the Dissolution of Marriage Act) serves to promote the general welfare, seeks to achieve a valid public interest, constitutes a legitimate exercise of the state’s police power, and is not so palpably unreasonable or unduly discriminatory as to render it vulnerable to the constitutional attacks leveled against it by the husband. Any other result, respecting “marital property” acquired prior to the effective date of Section 452.330, supra, would place one or more generations of married couples whose marriage is dissolved pursuant to the Dissolution of Marriage Act at a decided disadvantage in comparison with subsequent generations of married couples whose “marital property” is acquired after the effective date of Section 452.330, supra. To say that the legislature intended such a disparate, inequitable, and chaotic result strains credulity to the breaking point.

This court is not unmindful that this case was tried during the nascency of the Dissolution of Marriage Act. The innovative nature of the Dissolution of Marriage Act, coupled with its sparsity of statutory guidance and direction, spawned understandable uncertainty at the trial level and an inordinate number of appeals. Nonetheless, the trial court had no discretion or leeway to divide or not divide the “marital property” on a “just” basis, it was inexorably commanded to do so — “the court * * shall divide the marital property in such proportions as the court deems just after considering all relevant factors” including those specifically enumerated. Section 452.330, supra. (Emphasis added.) As held in L. F. H. v. R. L. H., supra, “[b]y using the word ‘shall’, the legislature has indicated that the trial court must specifically decree a division of the marital property upon dissolution of the marriage.”

When called upon to construe a statute, a court’s first and foremost duty is to ascertain and give effect to the legislative intent expressed in the statute. Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245, 251 (Mo.1968); State ex rel. Lee American Freight System, Inc. v. Public Service Commission, 411 S.W.2d 190, 193 (Mo. banc 1966); St. Louis County v. State Highway Commission, 409 S.W.2d 149, 152 (Mo.1966); and In re Myers’ Estate, 376 S.W.2d 219, 223 (Mo. banc 1964). Certain well established and recognized rules aid in doing so. The goal or manifest purpose sought to be achieved by a statute, in light of conditions existing at the time of its enactment, is one such rule. In re Tompkins’ Estate, 341 S.W.2d 866, 872 (Mo.1960); State ex rel. M. J. Gorzik Corp. v. Mosman, 315 S.W.2d 209, 211 (Mo.1958); and Central Bank of Clayton v. State Banking Board of Missouri, 509 S.W.2d 175, 182 (Mo.App.1974).

A goal or evident purpose of the Dissolution of Marriage Act was to eliminate, or in any event to minimize, many of the anachronistic vestiges which surrounded rights to property acquired during marriage in the event the marriage relation was severed. As opposed to the old order, the Dissolution of Marriage Act views the acquisition of “marital property” as a partnership endeavor, and it enunciates a standard for dividing such property which is flexible enough to weigh and balance the respective contributions of the spouses and to accommodate consideration of manifest justness and fairness. It appears that an additional goal or evident purpose was to eliminate any carryover of the animosity which brought about severance of the marriage by terminating, without recourse to further litigation, all unity of possession, as well as unity of title, between the spouses when consummating a “just” division of “marital property”. A division pf “marital property” which stops short of severing the relationship attached to the common ownership of property “should be reserved for the unusual situation where the economics involved call for such a solution.” Davis v. Davis, 544 S.W.2d 259, handed down November 20, 1976, by the Missouri Court of Appeals, Kansas City District. As pointed out in Davis, “a division which leaves the parties tenants in common in personal property susceptible to division in kind should be avoided in the interest of preventing the unnecessary extension of disputes and ill feeling. Although resort to such device with respect to real estate probably should not be absolutely precluded, again a tenancy in common solution should be reserved for the unusual situation where the economics involved call for such a solution.”

Section 452.330, supra, provides that all property within the definition of “marital property”, whether title is held “individually” or “by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property”, “shall” be divided “in such proportions as the court deems just after considering all relevant factors” including those specifically enumerated in subparagraphs (1), (2), (3), and (4) of paragraph 1 thereof. Section 452.330, supra, viewed in its contemporary context and with awareness of the patent inequities and aftermath of rancor and further litigation which it sought to rectify and eliminate, leaves no doubt that the legislature intended a division of “marital property” which would effect a complete severance of all unity of possession, as well as unity of title, between the spouses, excepting only “the unusual situation where the economics involved call for” (Davis v. Davis, supra) a division which stops short of severing the relationship attached to the common ownership of property. In those “unusual situation[s]” where a “tenancy in common solution” is resorted to for dividing either real or personal property falling within the definition of “marital property” because of the “economics involved” — the exception rather than the rule — the trial court should specifically state its reasons for doing so in its decree so that it will be apparent to an appellate court that the review is from a judgment which comports with the requirements of Section 452.330, supra, for the division of “marital property” and thus presents a final judgment ripe for appeal.

The legislature, to the consternation of many members of the bench and bar, failed to statutorily specify any particular power or powers which the courts could or should employ to implement divisions of “marital property” contemplated in and commanded by Section 452.330, supra. Understandably, this may have accounted for the lack of a final judgment in the instant case. This court concludes that specificity was wisely avoided by the legislature. The relatively short history of the Dissolution of Marriage Act in this state, as gleaned from a case by case review, has already vividly demonstrated a wide diversity between the type and value of items of property comprising the whole of the “marital property” to be divided. Because of its diversified nature, it would be difficult, if not impossible, in many instances to effect a “just” division solely on an item for item basis; furthermore, the adaptability of a particular method for implementing a division of “marital property” in one case might be wholly ina-daptable in another case. Fortunately, the legislature had the prescience to avoid delineating or suggesting particular “methods” or “mechanics” for apportioning “marital property” subsequent to judicial determination of what constituted a “just” division comportable with Section 452.330, supra. Otherwise, it would have incurred the risk of delineated or suggested “methods” or “mechanics” being construed or deemed as all-inclusive and, if such occurred, the paramount goal of a “just” division of “marital property” might be defeated in certain cases.

The ultimate goal to be achieved in every division of “marital property” is a “just” division which accords in all respects with the intent and purpose of Section 452.330, supra. Once the interests of the respective spouses in the “marital property” have been judicially determined according to Section 452.330, supra, the power to apportion to each spouse his or her share is not statutorily circumscribed by any rigid “methods” or “mechanics”. The power to do so is statutorily rooted and virtually unlimited so long as it effects a division contemplated in and mandated by Section 452.330, supra. As held in Claunch v. Claunch, 525 S.W.2d 788, 791 (Mo.App.1975), “the power given the trial court by § 452.330 (par. 1) to ‘divide the marital property’ includes the powers necessary to render effective the power to divide.”

The record in the instant case fails to reveal any “economics involved” which would justify leaving either the real or personal property comprising the “marital property” vested in the parties as tenants in common. Perforce, the decree entered by the trial court did not constitute a division of “marital property” as contemplated in and mandated by Section 452.330, supra, and for that reason was not a final judgment and order, and was not appealable.

Appeals dismissed.

All concur.

      . In addition to other provisions of the Constitution of Missouri, 1875, appellants invoked Art. 2, § 15 (whose present counterpart, Art. I, § 13, Constitution of Missouri, 1945, is relied upon by the husband in this case) and Art. 2, § 30 (whose present counterpart, Art. I, § 10, Constitution of Missouri, 1945, is relied upon by the husband in this case); appellants also invoked Amend. XIV, § 1, of the Constitution of the United States (also relied upon by the husband in this case).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Ex parte J. A. P. A. L. P., Petitioner, v. J. F. P., Respondent.
    No. 10589.
    Missouri Court of Appeals, Springfield District.
    Jan. 31, 1977.

      Douglas W. Greene, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for petitioner.
    Harold L. Henry, H. Lynn Henry, Henry, Henry & Henry, West Plains, for respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   PER CURIAM:

Our writ issued on an original petition for writ of habeas corpus brought by the mother of the child involved against the father. After further and due proceedings, we ordered (with opinion to follow) that the custody of the child be vested in the mother in accordance with the last legal custodial provisions of the orders of the Circuit Court of Howell County.

After the regular judge recused himself, a special judge entered a decree of divorce in the Circuit Court of Howell County in November 1973. The mother was awarded custody of the child and the father was afforded certain visitation rights. In June 1974 the father filed a motion to modify the decree as it related to child custody. The regular circuit judge was again disqualified and after the first assigned special judge was also disqualified, a second special judge heard testimony on the motion and decreed on December 8, 1975, that the mother should retain primary custody of the child. The father appealed and that appeal is now pending in this court. We find it unnecessary to detail the tumultuous events which have interlaced this matter since the initial divorce decree was made. It suffices to note the intervening contempt charges levied and the habeas corpus proceedings had are grim evidence of bitter self-interest on the part of the two involved adults which cannot help but have a disastrous effect upon the welfare and well-being of the innocent child.

The present fracas had its start in this manner. Under the December 8, 1975, decree, the father was to have custody of the child during the 1976 school Christmas vacation from the start thereof until 10 a. m. December 25, at which time the child’s custody was to revert to the mother who was then residing in Greene County. However, on December 23, 1976, while the child was in the custody of the father in Howell County, the father filed in the Circuit Court of Howell County a Motion to Modify the former decree so as to place the care, custody and control of the child in him. The father also filed a Motion for Temporary Custody. On the day following (December 24, 1976), the regular judge of the Circuit Court of Howell County, although twice before disqualified in the cause, issued an order placing the custody of the child in the father “until further order of the court.” The order of December 24 was issued without service of the motions upon the mother and before any notice thereof had been given to the mother. The mother, upon becoming aware of the motions and order ex post facto, sought by habeas corpus immediate delivery of the child to her. If the December 24 order of the trial court is void, then habeas corpus is the proper remedy. Ex parte S. M. C., 479 S.W.2d 501, 502 (Mo.App.1972).

An original divorce decree and any subsequent modification thereof as regards child custody, are final and binding and cannot be disturbed except upon due proceedings and a hearing for that purpose. Hayes v. Hayes, 363 Mo. 583, 589, 252 S.W.2d 323, 328[10] (1952). If all interested persons survive, the divorce court awarding custody retains continued exclusive jurisdiction of the cause until the child reaches majority. Tripp v. Brawley, 261 S.W.2d 508, 510[2] (Mo.App.1953). A motion to modify a prior custody decree is in the nature of an independent proceeding and the motion is treated as a petition in an independent proceeding. Mahan v. Mahan, 239 Mo.App. 317, 319, 192 S.W.2d 626, 627[2] (1946). While there is no particular method of service of a motion to modify prescribed by statute or rule, an essential prerequisite to the modification of a decree is notice to the party adversely affected, and a modification by changing custody without prior proper notice is a violation of due process. Mo.Const. art. 1, § 10; Greene v. Greene, 368 S.W.2d 426, 428[3] (Mo.1963). Power to review and alter a prior custody order is dependent not only upon giving proper notice, but also upon proper application being made therefor [Rule 55.26(a); C_C_ v. J_ A_ C_, 499 S.W.2d 809, 812 (Mo.App.1973)], and an order which purports to rule on a motion to modify when proper notice is missing and without a hearing at which evidence is adduced, is in excess of the court’s jurisdiction and void. In re Lipschitz, 466 S.W.2d 183, 185[4] (Mo.App.1971).

Under the authorities above cited, the order of December 24, 1976, having been issued without any notice having been given to the mother and without the conduct of a hearing at which evidence was adduced, was beyond the jurisdiction of the Circuit Court of Howell County and was, therefore, void. We refuse to ingest the feeble claims that the ex parte order of December 24, 1976, was made under emergency circumstances or because the situation arose in an area where a “vacant spot” existed in the law to handle the immediate needs of a child’s welfare. The so-called emergency circumstances and the child’s averred immediate needs stated in the father’s motion to modify filed December 23, 1976, are not unlike those alleged in his motion to modify filed in June 1974. Although the jurisdiction of a divorce suit or a dissolution of marriage action remains exclusive in the circuit court wherein it was filed and determined, the jurisdiction of the cause as it concerns child custody may still be affected or superseded by the juvenile court under certain circumstances. Hayes v. Hayes, supra, 252 S.W.2d at 327. Hence our order made January 24, 1977, as follows:

“ORDER
Custody of . . ., minor, vested in [mother]. [Mother] ordered not to remove minor from Greene County, Missouri, until further order of this Court. All without prejudice to [father] to make application to appropriate juvenile court pursuant to Chapter 211 R.S.Mo. 1969. Costs taxed against [father].”

All concur.

      . We do not reach the question of whether a regular circuit judge, who has recused and again been disqualified in a divorce action, has any authority thereafter to act in subsequent proceedings involving modification of prior custody determinations resolved by special judges. Cf. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372 (banc 1953); Prather v. Prather, 263 S.W.2d 57 (Mo.App.1954).


author: CARNEY, Presiding Judge.

text:
    CITY OF ALCOA, Plaintiff-Appellant, v. Asbery INGRAM et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    June 3, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.
    M. H. Gamble, Jr., Carl P. McDonald, Goddard & Gamble, Maryville, for plaintiff-appellant.
    William J. Brown, Maryville, for defendants-appellees.
   CARNEY, Presiding Judge.

The City of Alcoa has appealed from an order of the Trial Court dismissing its suit for street assessment of $201.00 against the Defendants-Appellees, Gordon Edward Wright and wife, Janice Wright. A number of other property owners were defendants to the original suit but they are not involved on this appeal.

Beginning in April 1964 and ending in March 1969, the City of Alcoa completed a street improvement program under Ordinance 475 passed on August 30, 1962. These improvements were made under the authority of Chapter 11, Improvements by Special Assessment, T.C.A. Section 6-1101, et seq.

The City of Alcoa used its own personnel for engineering design and for some of the work on the street improvement program. However, the major cost of the construction was represented by payments to Harrison Construction for labor, materials, and equipment.

On June 10, 1971, the City of Alcoa passed Resolution No. 1070 assessing the owners of properties abutting the streets improved under Ordinance 475 for two-thirds of the cost of the improvements. This assessment was levied under T.C.A. Section 6-1115. Publication, as provided by T.C.A. Section 6-1121, was made on June 11, 1971, and June 14, 1971, giving 13 days’ notice that the assessment list had been completed and setting June 24, 1971, as the date for making objections to the appor-tionments. This notice met the 10-day requirement provided by T.C.A. Section 6-1121. However, the lower Court held that the notice was defective because it did not give full 14 days’ notice provided by T.C.A. Section 6 — 1104.

Many property owners appeared on June 24, 1971, and made objection. Resolution 1070 approving the assessment list was adopted. There was no appeal by any of the property owners from the assessments as authorized by T.C.A. Section 6-1126.

After the Defendants, Wright and wife, and other landowners refused to pay, the suit in the instant case was filed.

The lower Court held the assessment invalid because the City did not obtain competitive bidding under Article 20 of the Charter of the City of Alcoa construed in pari materia with T.C.A. Section 6-1107.

Article 20 of the Charter states as follows:

“Section 1: Any public work or improvement, costing more than one thousand dollars, shall be executed by contract, except when a specific work or improvement is authorized by the Board of Commissioners, and approved by the City Manager.”

T.C.A. Section 6-1107 is as follows:

“6 — 1107. Undertaking work — Construction contract. — Upon the confirmation of the ordinance hereinbefore referred to, it shall be the duty of said legislative body to proceed to construct the improvements thus authorized, which may be done by contract with the lowest and best responsible bidder, in accordance with the provisions of the charter of such city or town, or it may be done by said municipality as it may elect.”

The contract by the City with Harrison Construction Company was on a negotiated bid price per ton of asphalt actually laid. However, as set out above, some city personnel worked on the improvement project. We respectfully disagree with His Honor the Trial Judge and hold that the contract by the City with Harrison Construction Company was not forbidden either by the City charter or by T.C.A. Section 6-1107.

The case of Johnson City v. Carnegie Realty Company, (1933), 166 Tenn. 655, 64 S.W.2d 507, cited by Appellees, is not controlling of the case at bar. In the Johnson City case, the private statutes expressly required the contract to be let to the lowest bidder. Neither the City charter of Alcoa nor T.C.A. Section 6-1107 so requires.

We also hold that His Honor the Trial Judge was in error in holding the assessment invalid because the property owners were given only 13 days notice of the hearing for objections to the property assessments. The 14-day notice required under T.C.A. Section 6 — 1104 did not relate to hearing on assessment lists. It related only to hearings on objections to the improvement project. At the time the notice was given in August 1962 for hearings on objections to the improvement project under T.C.A. Section 6-1104, the Appellees, Wright, et ux, did not own the land which was later assessed. If there had been a defect in the notice, Appellees could not now legally object. However, it appears that the notice in August 1962 was legally made. The 10-day notice for hearing on objections to assessments as required by T.C.A. Section 6-1107 having been met, His Honor was in error in holding the notice insufficient.

The assignments of error are sustained, the judgment of the lower Court is reversed, and the cause is remanded for further proceedings consistent with this opinion. The costs in the Court below and in this Court are taxed to the Appellees.

MATHERNE and NEARN, JJ., concur.


author: NEARN, Judge.

text:
    Reece STRICKLAN, Appellant, v. Carl KOELLA, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Sept. 20, 1976.
    Certiorari Denied by Supreme Court Feb. 7, 1977.

      John T. Buckingham, Knoxville, for appellant.
    William P. O’Neil, Knoxville, J. Lewis Kinnard, Madisonville, for appellee.
   NEARN, Judge.

The Trial Judge sustained defendant’s motion for summary judgment in a legal malpractice case and the plaintiff has appealed.

These facts are undisputed: Stricklan was convicted of an assault and battery on the person of Lawson Underwood. Thereafter Underwood sued Stricklan in the Circuit Court seeking the sum of $125,000.00 as damages arising out of the assault and battery. Prior to engaging the defendant Carl Koella, a member of the Blount County Bar, to represent him in the defense of the civil suit, plaintiff Stricklan had engaged and disengaged the services of other lawyers. On March 25, 1974, which was seven days preceding the trial date of the civil suit, Stricklan fired Koella. On the day of trial, Stricklan, acting pro se, negotiated a settlement of the civil case against him whereby he paid the sum of $8,500.00 to Lawson Underwood in full satisfaction of her claim against him for damages.

On March 19, 1975, Stricklan filed suit against Koella seeking actual damages in the amount of $9,350.00 allegedly caused by the malpractice of Koella, plus an additional $250,000.00 for “damage to my reputation”.

The original complaint is as follows:

“Malpractice in my Civil Suit Case # 2313 Monroe County, Tennessee
“On the 25th day of March 1974 I fired my Lawyer Carl Koella who I had hired to represent me in my case VS Lawson Underwood.
“When preparing for my case I had asked my Lawyer Carl Koella to take deposition from Lawson Underwood and her children, Susan and Paul David which was very vital to my case.
“Wherefor that the defendant intentionally did not get said depositions or with-helded from me and I did not have any material to go to Court to defend my case.
“I had to make settlement out of court the morning of the trial April 1, 1974 because I had nothing to defend my Case # 2313 because my Lawyer was not working in my behalf. He did not carry out our contract which I had hired and paid him to do.
“Wherefore I am demanding Judgment against Lawyer Carl Koella in the amount of Nine Thousand-Three Hundred-Fifty Dollars ($9,350.00) for damages and Two Hundred Fifty Thousand Dollars ($250,000.00) damage to my reputation and my cost of Suit herein incurred and demand a Jury to try the cause.”
s/ Reece Stricklan

An amended complaint added the charges that:

“On November 14, 1973 I wrote my Lawyer Carl Koella asking him to summons the witness in my Criminal Case of January 10,1972 the same case vs. Underwood to prove I did not get a fair trial at that time and he would not do that for me. “Also, I asked him to file papers to get my Case moved to another County because of the Judge kinfolk relationship to Mrs. Underwood here in Monroe County and that I could not get a fair trial and he would not do that for me. They had a Special Jury Panel for 1 day to try my case.”

A second amended complaint, allegedly by Stricklan pro se, again charged Koella with negligence regarding the matter of depositions and averred inter alia that Koel-la had failed

“to properly take depositions even though the plaintiff requested and pleaded with the defendant to take the depositions of Lawson, Benny and Paul David Underwood, along with various other persons who testified at the Criminal Case # 3577 and who claimed to have material information concerning the claims of Lawson Underwood on how she received the injuries sued for in Civil Case # 2313 because there were contradictions in the testimony and there were unexplained time delays which were material to the case which could only be brought out by cross-examination and impeachment by prior prepared depositions;
* * * * * *
“Due to the negligence of the defendant and the unprofessional, unskilled manner in which the defendant had handled the case, the plaintiff had no materials with which to try the case and was subsequently put into the position to have to settle the case out of court, because he was unable to employ another lawyer at that late date and could not obtain a continuance; ”
******

Koella filed his answer denying any acts of negligence, admitting that plaintiff had insisted that Koella attempt to “change venue” and admitting that pre-trial depositions of the Underwoods were not transcribed and filed in the civil cause. Koella averred he did not move for a “change of venue” because the motion would have been improper and unfounded. Koella further averred that in his, Koella’s, judgment the pre-trial discovery depositions which he did take of the Underwoods developed no discrepancies and would have been of no use in the trial. Therefore, he, Koella, did not order them transcribed and filed.

Essentially and in simple terms, the cause of action stated is that retained counsel refused to use the trial tactics insisted upon by the client, for which refusal retained counsel’s services were terminated; that the refusal of counsel to try or prepare the case in the manner insisted upon by the client (by filing of depositions) caused the client to be without representation on the day of trial and forced the client into an expensive settlement without a trial of his case; that the plaintiff was substantially damaged by the negligence of defendant because if the case had gone to trial and if counsel had taken depositions in the manner insisted upon and if the plaintiff and her witnesses in the suit against Stricklan had testified in such manner so that discrepancies would appear between that testimony, if given, and discovery testimony, if taken, the jury (if there had been one) would have found in favor of Stricklan or if they found against him, would have found in a lesser amount than settled for if the jury would have considered the testimony discrepancy if it had appeared. All if the case had been tried in another county.

We hold that there can be no such cause of action in this state.

We are unable to find any case from this jurisdiction directly in point. Of course, there are cases which recognize a cause of action for legal malpractice. See Hillhouse v. McDowell (1966) 219 Tenn. 362, 410 S.W.2d 162; Gay & Taylor, Inc. v. American Cas. Co. of Reading, Pa. (1963 E.S.) 53 Tenn.App. 120, 381 S.W.2d 304; Hill v. Mynatt (1900 Tenn.Ch.App.) 59 S.W. 163. Ordinarily a lawyer, like a physician, is liable for professional negligence. 87 A.L.R.2d 986; Hill v. Mynatt, supra. However, none of the Tennessee cases that we find recognize a cause of action for alleged negligence in the attorney’s choice of trial tactics or conduct of the cause. In some states where such an action seems to be recognized, e. g., see Olson v. North (1934) 276 Ill.App. 457, such claims rarely, if ever, are successful. Detractors of the profession may imply that this is so because of the fraternal relationship between bench and bar. Such is certainly not the reason. In the English case of Rondel v. Worsley, reported as (1966) 1 All E.R. 467, (1966 C.A.) 3 All E.R. 657 and (1967 H.L.) 3 All E.R. 993, numerous reasons by judges were given for the holding that as a matter of law no action would lie against a lawyer by his client for negligence in and about his conduct of the client’s case in Court. Some judges were of the opinion that since in England no action could lie against the client by the barrister for failure to pay a fee, the client could not sue the barrister for his conduct of the trial, the distinction between a solicitor and barrister being duly noted and recognition made of the existence of a cause of action against a solicitor. Other judges tended to base their conclusions on the fact that lawyers in the trial of cases, do not owe allegiance to the client only, but owe dual allegiance: one to the client and the other to the Court; and if a client were permitted to sue a lawyer for what the client believes to be negligent trial tactics, in that they did not inure (in the client’s opinion) to the benefit of the client, a trial lawyer would find himself sued for following his allegiance to the Court. In describing this dualism the judges observed:

“[The lawyer] has a duty to the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mis-state the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court.”

Another Judge observed:

“There is another factor which I fear might operate in a much greater number of cases. Every counsel in practice knows that daily he is faced with the question whether in his client’s interest he should raise a new issue, put another witness in the box, or ask further questions of the witness whom he is examining or cross-examining. That is seldom an easy question but I think that most experienced counsel would agree that the golden rule is — when in doubt stop. Far more cases have been lost by going on too long than by stopping too soon. But the client does not know that. To him brevity may indicate incompetence or negligence and sometimes stopping too soon is an error of judgment. So I think it not at all improbable that the possibility of being sued for negligence would at least subconsciously lead some counsel to undue prolixity, which would not only be harmful to the client but against the public interest in prolonging trials. Many experienced lawyers already think that the lengthening of trials is not leading to any closer approximation to ideal justice.”

Additionally, in all negligence cases, whether they be automobile related or medical or legal malpractice related, before a recovery can be had, the nexus between the negligence and the injury must be shown. In a suit complaining of the manner in which proof was presented and the manner of examination and cross-examination of witnesses, only by pure guesswork can the verdict of a jury be examined and a so-called cause for that verdict be determined. No man shall suffer a judgment against him based on guess.

In the instant case, the cause would have to be determined by guesswork once removed. Since the defendant did not try the case, it would first be guessed what the jury would have done had the defendant tried the case in the manner he thought best. Then it would have to be guessed what the jury would have done had the case been tried according to the client’s wishes. To state the position is to reject it.

We do not hold that there generally is no cause of action against an attorney for his negligence or malpractice; we only hold that for the reasons given, there can be no cause of action against an attorney arising out of the manner in which he honestly chooses to present his client’s case to the trier of the facts.

The judgment below is affirmed.

Costs of this appeal will be adjudged against the appellant.

CARNEY, P. J., and MATHERNE, J., concur.


author: PARROTT, Presiding Judge. (E.S.)

text:
    LaVerne CAREY and husband, W. T. Carey v. J. E. JONES et al.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 6, 1976.
    Certiorari Denied by Supreme Court Feb. 7, 1977.

      Joyce, Anderson, Wood & Meredith, Oak Ridge, for Max Everett and Tenneco, Inc.
    Flynn & Flynn, Knoxville, for Mr. & Mrs. Carey.
    Layton & Perry, Oak Ridge, for J. E. Jones and Mitchell Jones.
   OPINION

PARROTT, Presiding Judge. (E.S.)

In this circuit court action La Verne Carey and husband, W. T. Carey, seek damages for injuries suffered by Mrs. Carey who was allegedly struck by a gasoline hose. Named as defendants are: Tenneco, Inc., owner of the service station; Max Everett, employee of Tenneco, Inc.; and J. E. Jones, owner of a motorcycle ridden by his son Mitchell who allegedly came in contact with the gasoline hose while plaintiff was attempting to fill her car with gasoline at Tenneco’s service station.

At the conclusion of plaintiffs’ proof, the trial judge entered a directed verdict in favor of the defendants, J. E. Jones and Mitchell Jones, and judgment on the jury’s verdict in favor of the plaintiff against the defendants, Max Everett and Tenneco, Inc., in the sum of $15,000.00 for bodily injuries to Mrs. Carey, and $7,000.00 for loss of services to her husband, W. T. Carey. On defendants’ motion for new trial or remitti-tur, the trial judge allowed a remittitur in the amount of $3,000.00 on the judgment for Mrs. Carey and $1,000.00 on the judgment for Mr. Carey to which the plaintiffs excepted.

The appellants, Max Everett and Tenne-co, Inc., have assigned as error the trial judge’s directing a verdict for the defendants, Mitchell Jones and J. E. Jones; the trial judge’s refusal to direct a verdict in favor of the appellants; and the failure of the trial judge to charge the jury as to the effect of an invitee exceeding the scope of his invitation.

The record shows that plaintiff, La Verne Carey, drove her automobile into a Direct Oil Company service station owned and operated by the defendant, Tenneco, Inc., and parked so that the rear of her automobile was approximately even with the end of the service island. On the other side of the island, the motorcycle belonging to defendant, Mitchell Jones, was being serviced by Max Everett, the assistant manager of the service station. After filling the motorcycle with gas, Everett routinely cleared the purchase price from the pump and allowed Mrs. Carey to begin filling her own automobile. It is disputed whether Everett handed Mrs. Carey the hose or she got it herself from the pump. While Mrs. Carey was in a squatting position inserting the nozzle of the hose into the tank opening located at the rear of her automobile, the defendant, Mitchell Jones, started his motorcycle and departed from the station around the rear of Mrs. Carey’s car. Almost immediately upon leaving the service island, the defendant Mitchell Jones felt a jerk or a bump, heard Mrs. Carey scream, and observed her recovering from a backward fall resulting as the hose was jerked from her hands. When he stopped, the record shows the hose was located either near his motorcycle or was entangled with it.

The appellants’ first assignment of error is the correctness of the trial judge’s directing a verdict in favor of defendants, J. E. Jones and Mitchell Jones. Before we can address this assignment of error, a paramount question is raised as to whether or not the defendants have a right to complain of the trial judge’s directing a verdict in favor of a co-defendant.

The existing law in Tennessee concerning this issue is found in Yellow Cab Company of Nashville v. Pewitt, 44 Tenn.App. 572, 316 S.W.2d 17 (1958), involving an action against a taxi company and a bus company for injuries sustained by an automobile driver when his car was struck in the rear by the taxi cab and knocked into the path of the bus. The circuit judge dismissed the action against the bus company, but entered judgment for the plaintiff against the taxi cab company. In the appeal the taxi cab company complained of the circuit judge’s dismissal of the bus company. This Court held the taxi cab company “cannot complain of the dismissal of its co-defendant, since it was not aggrieved nor its liability affected thereby. This is true whether it was one of the joint tortfeasors, as charged, or was the sole wrongdoer, as implied by the jury’s verdict acquitting its co-defendant.” See also, McAmis v. Carlisle, 42 Tenn.App. 195, 300 S.W.2d 59 (1956); and Howard v. Haven, 198 Tenn. 572, 281 S.W.2d 480 (1955).

However, since the enactment of the Uniform Contribution Among Tortfeasors Act in 1968, which is codified as T.C.A. 23-3101 et seq., we do not believe the ruling in Pewitt and other similar holdings is any longer controlling authority. We find no cases in this state considering the effect of the statute when a co-defendant complains of the dismissal of another co-defendant.

In states where the question has been considered there appears to be a lack of unanimity. California held before the enactment of the joint tortfeasors act and after its enactment that a defendant who is individually liable is not aggrieved by the exoneration of a co-defendant, even though the exoneration was erroneous. Perez v. G. W. Chevrolet, Inc., 274 Cal.App.2d 766, 79 Cal.Rptr. 285. However, California’s position is based on a statutory denial of the right of contribution when a co-defendant is dismissed from the lawsuit. C.C.P. 12 § 877. Two other jurisdictions, Maryland and Pennsylvania, have taken the opposite view of the California court.

The Court of Appeals of Maryland held in Williams v. Dawidowicz, 209 Md. 77, 120 A.2d 399 (1956), that “it seems clear that [the defendant] would have had a right to appeal not only from the judgment against him, but from the judgment in favor of the co-defendant, in view of his right to contribution if the co-defendant was also guilty of negligence contributing to the injury.” Similarly, the Supreme Court of Pennsylvania, in Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295 (1936), held that “as the question to be decided where a plaintiff sues more than one defendant is the liability to the plaintiff of one or more of the defendants, they should be put on equal terms concerning that liability, and the one on whom the court below places such liability should be permitted to object to the release of his co-defendant and to follow that objection to this court.”

The Court in Pewitt declared that a defendant could not appeal a co-defendant’s dismissal because (1) the defendant was not an aggrieved party, and (2) the defendant’s liability was not affected. It appears from cases in other jurisdictions having a statutory right of contribution that the dismissal of a co-defendant satisfies these two requirements. The Maryland Court of Appeals stated in Holloway v. Wright, 21 Md. App. 615, 320 A.2d 572 (1974), that a defendant against whom judgment has been rendered does have an interest in a directed verdict for his co-defendant which entitles him to assert on appeal that the trial judge erred in granting the directed verdict.

From these cases it appears that the defendant’s liability would be affected by the dismissal of a co-defendant and the defendant would therefore qualify as an aggrieved party having the right to appeal that decision.

We believe the Maryland and Pennsylvania decisions offer better reasoning, particularly so since our courts have held contribution to be a substantive right. In Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971), the Tennessee Supreme Court determined that the Uniform Contribution Among Tortfeasors Act made a substantive change in the general common law rule that there is no contribution among tortfeasors. The Court then proceeded to hold that the Uniform Act could not constitutionally be given retroactive effect because of the substantive effect it has on the common law.

Following the reasoning of the Court in Massey, the Uniform Contribution Among Tortfeasors Act creates a substantive right to contribution from a co-defendant whose negligence contributes to plaintiff’s injury. As a result of a right of contribution if the co-defendant is found liable, a judgment defendant should be allowed to appeal a decision dismissing his co-defendant. The Maryland courts have similarly recognized that the Uniform Contribution Among Tortfeasors Act is a substantive right and have given the defendant the right to question the dismissal of a co-defendant on appeal. Stem v. Nello L. Teer Company, 213 Md. 132, 130 A.2d 769 (1957).

Because a directed verdict for a co-defendant deprives the defendant of the substantive right of contribution among co-defendants, we find the appellants-defendants in this case should be allowed to question on appeal the propriety of his co-defendants’ dismissal.

This brings us to the question of the correctness of the trial court’s directing a verdict in favor of the co-defendants. Everyone is mindful of the well established rules for determining a motion for directed verdict. The rules require the trial judge and reviewing court on appeal to look to all the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, and to allow all reasonable inferences from it in its favor, to discard all countervailing evidence and, if then there is any dispute as to material determinative evidence or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied. D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947); Poole v. First Natl. Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563 (1946).

In reviewing the evidence there is conflicting proof as to the proximate cause and testimony from which it could be inferred that the motorcycle driver Jones was guilty of negligence. At one point Jones testified that after his motorcycle began to move, he felt a bump as if he had run over an object such as a hose. At another point Jones testified that he thought the gasoline hose could have gotten stuck on one of the foot pegs of the motorcycle when he started off.

The testimony as to the location of the hose immediately after the accident is also in conflict. Plaintiff stated the hose was entangled with the motorcycle and other witnesses stated the hose was lying close to the motorcycle.

The trial judge, in directing a verdict on behalf of Jones, was apparently of the opinion that since there was no evidence Jones ever touched or handled the hose, he had breached no duty and as a matter of law could not be liable for the plaintiff’s injury. However, we cannot agree with this reasoning. There was a duty upon Jones as well as Everett to see that no obstacle was in the path of the motorcycle when Jones departed. From the evidence in this cause it cannot be concluded as a matter of law that either or both of the defendants were free of negligence which contributed to plaintiff’s injury.

Since the evidence is in conflict as to the proximate cause of the accident and there is evidence from which the jury could infer motorcycle rider Jones breached a duty, the trial judge erred in directing a verdict as to Jones. Therefore, appellants’ first assignment of error is upheld.

The appellants second assignment of error is the trial judge’s overruling the appellants’ motion for directed verdict. From the proof it could1 be reasonably inferred that Tenneco, Inc,, acting through its employee Max Everett, caused the gasoline hose or its retraction or tension cord to become attached to or entangled with Mitchell Jones’ motorcycle, thereby directly and proximately causing this accident and Mrs. Carey’s injuries, i The defendant Jones testified that as he dfeparted from the service island he felt a jerk or a bump as if he had run over the hose. He later testified that the hose probably became attached to his foot pegs as he left. From this testimony there is material evidence from which the jury could determine that Max Everett breached his duty of care to the plaintiff by not using reasonable care to see that the hose was clear of the motorcycle before its departure. Accordingly, the appellants’ motion for directed verdict was properly overruled by the trial judge.

The appellants’ third assignment of error is the trial judge’s failure to charge the jury as to the effect of an invitee exceeding the scope of his invitation. The record shows that the defendant, Tenneco, Inc., operated a self-service gas station up until three or four weeks prior to the accident. The testimony further establishes that the plaintiff, LaVerne Carey, had purchased gas from the defendant for several months before her injury, always servicing her own automobile and never being advised of the change from self-service to full-service. At the time of the accident, the defendant Max Everett completed servicing Jones’ motorcycle and the conflicting testimony reveals he either handed Mrs. Carey the nozzle or allowed her to take it from the pump without insisting upon servicing her car himself or informing her of their change in policy.

From these facts it appears that the defendants consented to Mrs. Carey’s pumping her own gas and that she did not go beyond their implied invitation while servicing her automobile. Her status as an invitee was not reduced to that of a licensee and consequently, the defendants’ standard of care remains the higher duty owed to an invitee. Keller v. East Tenn. Production Credit Assn., 501 S.W.2d 810 (Tenn.App.1973).

The trial court, therefore, did not err by failing to charge the jury as to the consequences of an invitee going beyond the scope of his invitation since Mrs. Carey did not exceed the invitation impliedly given her by the defendants. The appellants’ third assignment of error is overruled.

Because the trial judge erred in directing a verdict for the defendants, J. H. Jones and Mitchell Jones, the judgment is reversed and the case is remanded for a new trial as to all parties.

Costs incident to this appeal will be apportioned in equal amounts among plaintiff and defendants Everett and Tenneco, and the Joneses. All other costs will be taxed within the discretion of the court below.

H. TED MILBURN, Special Judge, concurs.

SANDERS, J., dissenting.


author: DAUGHTREY, Judge.

text:
    Henry WILLOCKS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 15, 1976.
    Charles D. Deas, Maryville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingsport, for defendant-in-error.
   OPINION

DAUGHTREY, Judge.

The defendant, Henry Willocks, was convicted of concealing stolen property over the value of $100.00 and was sentenced by a Blount County jury to not less than three nor more than five years in prison. On appeal he raises eight assignments of error, all of which relate to a single issue presented for our determination: Whether it was reversible error to force this defendant to trial in shackles. We conclude that it was and that the defendant is entitled to be retried in an unfettered condition.

We begin our examination of controlling law by observing that the concept of due process imbedded in our state and federal constitutions guarantees every criminal defendant a fair and impartial trial. Included in the presumption of innocence, which is mandated by due process and which attaches in each criminal case, is the defendant’s right to the “physical indi-cia of innocence.” Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973), cert. denied sub nom. Kennedy v. Gray, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974), citing United States v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970), cert. denied 401 U.S. 946, 91 S.Ct. 964, 28 L.Ed.2d 229 (1971).

An exhaustive analysis of the issue raised here was undertaken by the late Judge William E. Miller in his well-reasoned opinion in Kennedy v. Cardwell, supra. Moreover, the controlling principle of law was clearly enunciated in an earlier Sixth Circuit opinion, Woodards v. Cardwell, 430 F.2d 978 (1970), cert. denied 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971):

The rule that a prisoner brought into court for trial is entitled to appear free from all bonds or shackles is an important component of a fair and impartial trial. And shackles should never be permitted except to prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during the trial. 430 F.2d at 982.

The United States Supreme Court has described such physical restraint as “something of an affront to the very dignity and decorum of the judicial proceedings that the judge is seeking to uphold” and has approved the use of shackling and gagging only as “a last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

The American Bar Association Project on Standards for Criminal Justice, Standards Relating to Trial by Jury § 4.1(c) provides:

Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he should enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.

The commentary to § 4.1(c) describes the “harm to be prevented [by such restraint as] disorder from a variety of causes, including) such risks as escape, interruption of the proceedings, attack upon the defendant or witness by others, attack upon others by the defendant or witness, or self-destruction.”

A review of Tennessee law on shackling of an accused at trial must begin with two 1882 cases, Matthews v. State, 77 Tenn. 128, and Poe v. State, 78 Tenn. 673, which established that a defendant may be shackled in the trial court’s discretion only to prevent his escape, and that the trial court’s exercise of discretion may not be disturbed on appeal absent a clear showing of abuse. See also State ex rel. Hall v. Meadows, 215 Tenn. 268, 389 S.W.2d 256 (1965) (record of prior escape by defendant, held: no abuse); Hathaway v. Henderson, 1 Tenn.Cr.App. 168, 432 S.W.2d 503 (1968) (record of prior escape by defendant, held: no abuse; shackling did not occur during actual trial); Rivera v. State, 1 Tenn.Cr.App. 395, 443 S.W.2d 675 (1969) (record of prior escape by defendant, held: no abuse; shackling did not occur during actual trial); McGregor v. State, 491 S.W.2d 619 (Tenn.Cr.App.1972) (no proof that any prospective jurors saw shackles).

Our next step then is to determine whether the trial judge in this case abused his discretion in refusing to unfetter this defendant over the timely objection of his counsel. While far from complete, the record before us shows that the defendant was shackled at some point prior to the selection of the jury and apparently remained shackled throughout the trial. The following relevant exchanges between counsel and the court appear early in the transcript:

MR. DEAS: I would like to move for a mistrial or at least raise an objection because of this. I have never in my life seen anybody like this in the courtrooms of the State of Tennessee, or anywhere else. It prejudices the jury against this man, and it is just outrageous. I have never seen the like.
THE COURT: All right, I will overrule your motion. .
MR. DEAS: I would also like to move the Court to remove these shackles from this man.
THE COURT: Just leave him right there like he is.
MR. DEAS: Well does the Court have any reasons?
THE COURT: Yes sir, but I’m not going to explain it and give prejudice to the jury . . .

Later the defense attorney attempted to voir dire the jury on the question of prejudice caused by his client’s shackled condition, but the trial judge refused to allow it:

THE COURT: Now, Mr. Deas, I am going to tell you this for the record. You keep calling that to the attention of this jury and you are not going to be able to rely on that as error . . . Now, yesterday we had a person who I was arraigning jump out that window right over there. Whether you were here or not you see it and know the reason we are taking some security measures. Now, that has nothing whatsoever to do with determining the guilt or innocence or fixing punishment .

There is no evidence in the record that this defendant had ever escaped or attempted an escape in the past, nor that he had offered to escape at the time of the trial. There is no evidence in the record that he posed any danger to others in the courtroom or in any manner disrupted the proceedings at trial. No hearing was conducted prior to trial to determine whether physical restraint was necessary to prevent the escape of this particular defendant. See Kennedy v. Cardwell, supra, at 110. Finally, no formal cautionary instruction was given the jury when they were seated nor after the close of the proof in the case. Compare ABA Standards § 4.1(c), supra.

The only reason given by the Court for the shackling order was the fact that some third party, totally unrelated to this defendant, so far as the record shows, had “jumped out” a window in the courtroom the day before trial. We think this “security measure,” absent some proof that the defendant himself represented a security risk, constitutes a violation of due process and thus clearly exceeds the discretion of the trial court to order physical restraint. We are unable to find any authority in Tennessee or elsewhere to support the proposition that activities of other persons which are not related nor imputable to an accused may nevertheless be used as a basis for shackling a criminal defendant. The fact that others have escaped or that an accused may hypothetically attempt escape is not a sufficient basis per se upon which to predicate an arbitrary, non-selective program of physical restraint in an American courtroom.

We agree with Judge Miller’s conclusion that there should be a legal presumption against the necessity of in-court restraint, with the burden falling on the state “to show the necessity of any extreme physical measures.” Kennedy v. Cardwell, supra, at 107. We note, as did Judge Miller, that:

(t)he decision to shackle a defendant rests in the first instance in the discretion of the trial judge and the test on review is whether the trial judge has abused this discretion. The recent cases establish that in order for an appellate court to undertake any meaningful review at least the reasons for the trial judge’s actions should be placed on the record. Several courts, including this one, have recognized that the physical indicia of innocence are so essential to a fair trial that the better practice is to hold a hearing so that factual disputes may be resolved and evidence of the facts surrounding the decision are made a part of the record. 487 F.2d at 107 (citations omitted).

We agree also that “because every criminal defendant is entitled under the fourteenth amendment’s due process clause to a fair and impartial trial ... a defendant should never be shackled during his trial before a jury except in extraordinary circumstances. . . . (and) upon a clear showing of necessity . . .,” and that “it is an abuse of discretion precipitously to employ shackles when less drastic security measures will adequately and reasonably suffice.” Id. at 111. Certainly when physical restraint is employed the jury must be given an adequate instruction that the shackling should in no way effect their determination of guilt or innocence or their assessment of punishment. In the absence of these safeguards, we hold that in-court shackling is inherently prejudicial to the defendant, and accordingly we reverse and remand the judgment of the trial court.

DWYER and O’BRIEN, JJ., concur.

      . But cf. Odell v. Hudspeth, 189 F.2d 300 (10th Cir. 1951), a federal habeas corpus case brought by a state prisoner who complained that the use of guards and manacles during trial coupled with extreme public hostility toward him had deprived him of a fair trial. The court found no abuse of discretion in the use of manacles and guards where it appeared that such precautions were necessary to protect petitioner and preserve order during the trial and no prejudice where petitioner was sentenced to less than he could have received. Id. at 302. This requirement of actual prejudice has been described as a “distinct(ly) minority” rule. Kennedy v. Cardwell, supra at 107.


author: TATUM, Judge.

text:
    Victor Lynn LOVEDAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 3, 1976.

      William P. Biddle, III, Athens, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   OPINION

TATUM, Judge.

Appellant was convicted in McMinn County for violation of T.C.A. 52-1432 of the Tennessee Drug Control Act. There are three cases. In case number 67 in this court, appellant was convicted of selling schedule I drugs and sentenced to 10 years in the State Penitentiary. In case number 68 in this court, he was convicted of delivering schedule I drugs and sentenced to 10 years. In case number 69, he was charged and convicted of possession for resale of a schedule II drug, misdemeanor, and he was fined $1,000.00. The Trial Judge ordered the two 10-year sentences to run concurrently and did not impose a jail sentence in the misdemeanor case.

Appellant was a Deputy Sheriff of McMinn County. He worked “undercover” from May of 1973 until July, 1973. While working undercover, he became acquainted with one Gale Toney who was also an “undercover” officer in 1973.

In August, 1975, Toney renewed his acquaintance with appellant and appellant asked Toney if he was interested in making some easy money selling drugs. Toney reported this to T.B.I. agents and ultimately was appointed a deputy sheriff for the sheriff of Monroe County, in order to investigate appellant.

With the assistance of T.B.I. agents, several telephone calls and personal conversations between Toney and appellant were recorded. During these conversations, appellant discussed his plans to procure drugs to sell to Toney.

By prior arrangement, Toney went to appellant’s apartment on September 16, 1975 and purchased drugs classified as schedule I, schedule II and schedule III from appellant, agreeing to pay $230.00 for the same and actually making a payment of $200.00 to appellant with money that had been furnished to him by T.B.I. agents. The denominations of the bills and serial numbers had been previously recorded. To-ney was to pay the remaining $30.00 later.

On September 23, 1975, Toney again met with appellant and procured small quantities of several drugs, including LSD and cocaine for which appellant was to pay when he repaid the $30.00 owing on the first transaction. Appellant and Toney agreed to meet the next day and appellant was going to take Toney to Chattanooga to meet with one Richard Rose about another possible drug transaction.

After appellant’s arrest, he consented that T.B.I. agents search his apartment. A search was conducted that resulted in discovery of additional drugs which was the basis of the misdemeanor (possession) case.

When arrested, appellant admitted to the arresting officers that on two occasions he had given drugs to Toney, but he denied accepting any money from Toney. He told the officers that he in fact had given $30.00 of his own money to Toney.

Appellant did not testify but introduced the Sheriff of McMinn County to testify on his behalf. The Sheriff testified that after July, 1973, appellant did not work as an undercover agent, but continued to work in his department in charge of narcotics. The sheriff testified that appellant told him that Toney was working as an undercover agent and needed drugs and that he told appellant that if Toney needed drugs in connection with his work, to give them to him. The sheriff knew nothing about appellant receiving $200.00 for the drugs.

When Toney first renewed his acquaintance with appellant in August, 1975, Toney was not working as a police officer in any capacity. After the first conversation between appellant and Toney, Toney reported to the T.B.I. appellant’s offer to sell him drugs and was subsequently appointed a deputy sheriff of Monroe County and in this capacity he worked “undercover” in this case. Toney did not advise appellant that he was working undercover as a police officer, but told him that he desired to purchase drugs for resale. There is no evidence that appellant actually knew that Toney was working in an undercover capacity.

Appellant charges that he was denied due process and equal protection of the law and a fair and impartial trial.

Appellant explains in his brief that he has reference to evidence in the record relating to “other crimes”. In answer to a question as to why the witness, Toney, was appointed deputy sheriff for Monroe County, the sheriff of Monroe County testified, “We had information that there was a contract out on a Judge—”. Appellant’s counsel objected and the Court sustained the objection. There was nothing here connecting the “contract out on a judge” with appellant. Subsequently, the witness, To-ney, made the statement that he and appellant, “talked about me killing a man”. This referred only to Toney killing a man and not appellant. Appellant objected to this testimony and the objection was promptly sustained by the Trial Judge. The court remarked on sustaining both of these objections that this was not a proper matter to consider and that it did not affect that case. Conversations relating to “other matters” were deleted and not read to the jury. Appellant admits that the Trial Judge did all within his power to prevent the injection of these irrelevant matters and we think the Trial Judge succeeded in doing so and the brief references were insufficient to inform the jury of any other criminal activity on the part of appellant. The Attorney General made references to other matters under investigation. All of these statements were very vague and did not affect the verdict to the prejudice of the appellant. See, Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965). Assignment Number I is overruled.

Appellant says that he was entitled to a directed verdict based on the provisions of T.C.A. 52-1444(c):

“52-1444. Evidence, burden of proof— Immunity from liability, law enforcement officers in performance of duties.—(c) No liability is imposed by §§ 52-1408—52-1448 upon any authorized state, county or municipal officer, engaged in the lawful performance of his duties.”

T.C.A. 52-1444(a) places the burden of proof on appellant to show that these transactions come within 52—1444(c). Appellant has not born this onus. Appellant must prove that he was an authorized officer and also that he was engaged in the lawful performance of his duties.

Appellant relies upon the testimony of his principal, the sheriff of McMinn County. The sheriff’s testimony does not support appellant’s theory. The sheriff testified that appellant told him that he had an operation going and implied that Mr. Toney was involved as an undercover officer and that he authorized appellant to give drugs to Toney to use in undercover operations. The record reflects that appellant was not aware that Toney was actually operating as an undercover officer, but that he told appellant that the drugs were to be resold. The sheriff was not aware that appellant had actually sold the drugs to Toney. The proceeds of the sale of the drugs were kept by appellant for his own personal use. The evidence is that appellant sold the drugs for personal gain and not in connection with his official duties. The evidence against appellant was very strong and it did not preponderate against the jury verdict. Assignment II is overruled.

Appellant next complains that the Trial Judge erred in the two felony cases in not including in his instructions to the jury T.C.A. 52-1432(a)(2). This charge was not requested by appellant.

The portion of T.C.A. 52-1432 relevant to these cases is as follows:

“52-1432. Criminal penalties.—(a) Except as authorized by §§ 52-1408—52— 1448, it is unlawful for any person to manufacture, deliver, sell or possess with intent to manufacture, deliver or sell, a controlled substance.
(1) Any person who violates this subsection with respect to:
(A) a controlled substance classified in schedule I is guilty of a felony and upon conviction shall be imprisoned for not less than five (5) years nor more than fifteen (15) years and in addition thereto may be fined not more than eighteen thousand dollars ($18,000);
(2) It may be inferred from the amount of controlled substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. It may be inferred from circumstances indicating a casual exchange among individuals of a small amount of controlled substances that the controlled substances so exchanged were possessed not with the purpose of selling or otherwise dispensing them in violation of the provisions of subsection (a) of this section. Such inferences shall be transmitted to the jury by the trial judge’s charge and the jury will consider such inferences along with the nature of the substance possessed when affixing the penalty.
(b) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by §§ 52-1408 — 52-1448. (1) Any person who violates this subsection shall be guilty of a misdemeanor and, upon first conviction, be sentenced to confinement in a county jail or workhouse for a period not to exceed eleven (11) months, twenty-nine (29j. days and/or fined an amount not to exceed one thousand dollars ($1,000) or may have the sentence pending upon him for this violation suspended and may as a condition of the suspension be required to participate in a program of rehabilitation at a drug treatment facility operated by the state or a comprehensive community mental health center.”

Appellant relies on State v. Helton, 507 S.W.2d 117 (1974). In that case, the Supreme Court, in construing said Code section, speaking through Justice Fones, said:

“The first sentence of T.C.A. § 52-1432(a)(2) deals exclusively with a situation in which controlled substances are possessed by a seller and make no reference whatever to an actual sale. The second sentence of said subsection deals with a situation in which a small amount of a controlled substance is exchanged. Said second sentence clearly evinces a legislative purpose to declare that in a case involving the exchange of a small amount, plus ‘circumstances indicating a casual exchange among individuals,’ that the jury may find defendant guilty of the lesser included offense of mere possession without intent to sell. The inference declared in the first sentence is for the benefit of the State, a quantity of the drug (inferentially large), together with other relevant facts surrounding the arrest, indicating the commission of the felony. The inference declared in the second sentence is for the benefit of the defendant. The small quantity of the drug, together with circumstances indicating a casual exchange among individuals, suggesting the commission of only the lesser offense of possession.
(1) Trial judges must determine from the evidence in each case whether it is appropriate to charge the first sentence, the second sentence, or both. In each case, charging of the appropriate inference or inferences is mandatory, because of the use of the word ‘shall’ in the third sentence of subsection (a)(2). (Citations omitted)
. Exchange means to part with, give or transfer in consideration of something received as an equivalent. Casual means without design.” (Emphasis supplied) 507 S.W.2d 117, at 120.

The amount of drugs involved alone will not justify the reduction of an offense to mere possession without intent to sell. A casual exchange among individuals of a large amount of drugs will not reduce the offense. In order to reduce the offense to simple possession, it is required by T.C.A. 52-1432(a)(2) that there be “a casual exchange among individuals of a small amount of controlled substances . . . ” State v. Helton, supra.

As stated by the Supreme Court in State v. Helton, supra, there can be no casual exchange if there was a design or previous plan to make the exchange. The undisputed evidence was that appellant and Toney had previously planned the first exchange or sale by telephone and had previously agreed upon the price of the drugs. As a result of a pre-arranged meeting, appellant and Toney met again on September 23, 1975, at which time appellant delivered to Toney the drugs for which he was convicted in the delivery case. Toney was to pay for these when he paid the $30.00 still owing on the first transaction.

The drugs in both felony cases were delivered to Toney for the purpose of resale and both transactions were planned and previously designed according to all of the evidence.

The Trial Judge properly determined from the evidence in both felony cases that the charging of the second sentence of T.C.A. 52-1432(a)(2) was not appropriate. Since the evidence did not justify the charge concerning “casual exchange”, there was no other evidence of simple possession insofar as the two felony cases are concerned and the Court did not err in failing to charge T.C.A. 52-1432(b)(1). Assignment of Error III is overruled.

The fourth assignment of error is that the Court erred in instructing the jury with reference to parole statutes as required by T.C.A. 40-2707. The Act amending T.C.A. 40-2707, the same being Section 2 of Chapter 163 of the Public Acts of 1973, requiring that Trial Judges charge juries in felony cases on parole procedure and allied matters was held to be unconstitutional by the Supreme Court of Tennessee in Farris v. State, Tenn., 535 S.W.2d 608 (1976). Appellant assigned this as ground in his supplemental motion for a new trial and has assigned this as error in this court. Under authority of Farris v. State, supra, we must sustain Assignment IV as to case number 67 and case number 68, the two felony cases. This assignment is not applicable to the misdemeanor case, number 69, wherein appellant was fined $1,000.00 and given no jail sentence. The two felony cases are remanded for the purposes hereinafter directed.

The indictment in the selling case (no. 67) charged appellant with selling schedule I, II, and III drugs and the indictment in the other felony case, number 68, charged appellant with delivering schedule I and II drugs. Appellant complains that the Trial Judge charged the jury only with respect to schedule I drugs under T.C.A. 52— 1432(a)(1)(A) and did not charge the jury with respect to schedule II and schedule III substances under T.C.A. 52— 1432(a)(l)(B)(C). Appellant relies upon 40— 2518 requiring a jury charge as to all offenses included in an indictment.

The uncontradicted evidence was that appellant sold schedule I, II and III drugs in case number 67 and delivered schedule I and II drugs in case number 68.

By its verdict, the jury found the defendant guilty of selling and delivering schedule I drugs. The evidence was that these various classifications of drugs were sold at the same time in one case and delivered at the same time in the other. Schedule I drugs were included in both instances. There was no evidence or issue made to the contrary. The only issue for the jury was whether defendant was acting in the performance of his duties as a deputy sheriff. There was no basis for the jury to find one schedule of drugs set out in the indictments to be involved and not the other.

We do not think that under the facts, the Trial Judge was bound to charge the penalties for selling and delivering schedule II and schedule III drugs. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768 (1966); Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743 (1966).

This assignment is not applicable to the misdemeanor case. Assignment V is overruled.

It results that we affirm the conviction in all three cases. In the two felony cases, number 67 and 68, we reduce the sentences from 10 years to 5 years in each case if the State agrees. The sentences will run concurrently. In absence of the State’s consent to reduction of these two sentences, then both of said felony cases are remanded to the Criminal Court of McMinn County, for the purpose of having a jury fix the punishments.

WALKER, P. J., and O’BRIEN, J., concur.