author: NORWIN D. HOUSER, Special Judge.

text:
    Magalena MEYER, Plaintiff-Respondent, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 37413.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 16, 1976.

      Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, John A. Schneider, Hillsboro, for defendant-appellant.
    Don V. Nangle, St. Louis, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Action by Magalena Meyer, a named insured in a policy insuring premises located in Jefferson County against the hazard of fire, against MFA Mutual Insurance Company, to recover on the policy. Tried to the court without a jury judgment was rendered for Magalena and against MFA for $15,000, the policy limit, $1,500 for vexatious refusal to pay, $2,500 attorney’s fees and costs. MFA has appealed.

The insured premises were totally destroyed by fire on February 6, 1971 during the term of the policy, which was issued in the names of Vernon Meyer and Magalena Meyer. The insureds were husband and wife when the policy issued but divorced when the fire occurred. At both these times the premises were subject to a note and deed of trust in favor of Federal Housing Administration. The policy contained a loss-payable-to-mortgagee clause. Vernon Meyer filed for bankruptcy on October 26, 1970, listing his obligation to FHA as one of his liabilities. He was discharged in bankruptcy on March 1, 1971. The FHA loan was current on the date of the fire but later became delinquent. FHA made no claim under the insurance policy and made no effort to collect the note. Instead it foreclosed on the deed of trust. At the foreclosure sale on November 11,1972 FHA bid in the amount of principal and interest due on the debt ($16,150), leaving no deficiency.

MFA’s first point: “The trial court erred in overruling defendant’s motion to dismiss, in granting judgment for plaintiff and in overruling defendant’s motion for new trial because plaintiff had no insurable interest in the property since plaintiff did not own it and plaintiff had no standing or right to bring suit under the circumstances.”

“ ‘In general a person has an insurable interest in the subject matter insured where he has such a relation or connection with, or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against.’ ” American Central Insurance Co. v. Kirby, 294 S.W.2d 556, 561 (Mo.App.1956); Sander v. Mid-Continent Insurance Co., 514 S.W.2d 634, 637 (Mo.App.1974); Wrausmann v. Kansas City Fire and Marine Ins. Co., 477 S.W.2d 741, 742 (Mo.App.1972).

MFA asserts that on the date of the fire Magalena had no insurable interest in the property and suffered no loss as a result of the fire because she had previously disposed of the property; that she conveyed her interest to Nicholas Watz and wife by warranty deed dated December 5, 1969, executed by Vernon and Magalena Meyer before Stanley A. Veronecki, a notary public of the City of St. Louis, and filed for record November 23, 1970. The trial court declared the deed null and void. On this review, under the case of West v. Witschner, 482 S.W.2d 733, 737[4] (Mo.1972), we "reach the same result. There is convincing evidence of record to support a finding, and we find, that on or about December 5, 1969 Vernon Meyer, then being indebted to Ma-galena’s brother Nicholas Watz in the sum of $1,500, and having applied to Watz for additional funds, with which to pay the upcoming instalment of $1,065 due FHA on January 1, procured the signature of Ma-galena Meyer on a blank general warranty deed form; that he carried the blank form bearing her signature, and a separate paper on which the legal description of the property was written, to City Hall, where Watz worked, and together the two had the legal description written into the deed form and the other blanks filled in, whereupon it was signed by Vernon Meyer before a notary public who acknowledged the execution of the deed by both Vernon Meyer and Ma-galena Meyer, notwithstanding the latter was not present and did not acknowledge the instrument, and neither knew of nor authorized the act of the notary. There was ample evidence to support the trial court’s finding that Magalena Meyer lacked mental capability, was unable to grasp basic business essentials, had no intention of conveying her interest in the property, was not aware that she had signed a general warranty deed conveying her interest, and that up to the time of the fire she believed, and thereafter continued to believe, that she had an ownership interest in the property. On this review we further find, as did the trial court, that when Vernon Meyer approached Watz for further financial help (at a time when Watz knew the marriage was deteriorating) Watz insisted upon Vernon Meyer deeding his interest in the property to Watz as some kind of an assurance or pledge in an effort to make Vernon Meyer recognize his responsibilities to his family, and for the protection of Watz’ sister Ma-galena; that the mother, sister, and the two brothers of Magalena took a continuing interest in her welfare, “chipping in” from time to time over the years to the extent of hundreds of dollars, contributing to make payments due on the mortgage as well as to provide basic needs of food, etc. for Magale-na and her children; that Watz had no intention of profiting personally from the conveyance; that Watz placed the deed, which he did not record and had no intention of recording, in a folder with other papers and bills concerning the property; that later Watz moved out of the state; that before leaving Missouri he turned over to his brother Joseph Watz all of the papers relating to this property, including the unrecorded deed, together with the responsibility of looking after their sister Magalena; that the deed was filed for record by Joseph Watz, who was advised to do so by the FHA representative, to whom Joseph imparted the information that the deed was in existence.

The invalidity of the deed undercuts MFA’s argument that payment of the policy proceeds to FHA would not have protected Magalena’s equity of redemption because she had conveyed the property before the loss occurred. Magalena had an insurable interest in the property not only by virtue of her title interest but also by reason of the fact that she was obligated to FHA on the note and deed of trust she executed.

But, says MFA, the policy was voided in its entirety as against everyone, including the insured, Magalena, because of the violation of a policy provision by mortgagee FHA requiring the mortgagee to notify the insurer of any change in ownership which shall come to the knowledge of the mortgagee, “otherwise this policy shall be null and void.” While FHA’s representative, who had been informed of the existence of the deed, did not report the apparent change of ownership to MFA, no forfeiture ensued for the reason that in fact and in law there was no change of ownership. There was a warranty deed of record which pretended or purported to indicate a change of ownership but as we have seen that deed was inoperative, null and void. In the case of policy provisions against alienation or change of interest or title a change in the evidence of title which is merely nominal or which is not of such a nature as to diminish the motives of insured to guard the property from loss, and where the real ownership remains the same, does not violate the policy. 43 Am.Jur.2d Insurance §§ 856, 857. On analogy, a forfeiture does not occur for failure of a mortgagee to notify the insurer of a change of ownership where there is a void conveyance.

Next, MFA confidently asserts that Ma-galena is not the real party in interest and has no right or standing to maintain this action; that the real party in interest is the mortgagee, citing Klamen v. American Automobile Ins. Co., 492 S.W.2d 390 (Mo.App.1973), and quoting from Hartford Fire Ins. Co. v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066, 1070-1071 (1939), as follows: “* * * [W]here the insurance policy provides that the loss shall be paid to the mortgagee as his interest may appear, the right to sue is in the mortgagee alone upon the theory that the clause in the insurance policy gives him the same rights as if the policy had been absolutely assigned to him. Ridge v. Home Ins. Co., 64 Mo.App. 108, 110.”

We conclude that Magalena is the real party in interest. She never parted with her title; she remained liable on the note to FHA; she was one of the insureds. Where the improvements attached to mortgaged real estate are insured by a policy of insurance issued to the mortgagor with a loss-payable-to-mortgagee clause and mortgagor defaults, the mortgagee may sue on the note, foreclose the mortgage, or sue on the insurance policy as sole plaintiff, Klamen v. American Automobile Ins. Co., supra; Hartford Fire Ins. Co. v. Bleedorn, supra; Gosnell v. Camden Fire Ins. Ass’n of Camden, N.J., 109 S.W.2d 59, 71[25] (Mo.App.1937); Walton v. Phoenix Ins. Co., 162 Mo.App. 316, 141 S.W. 1138 (1911), in which case any recovery over and above the debt will be held in trust for the mortgagor, or the mortgagee may join with mortgagor as coplaintiff, Florea v. Iowa State Ins. Co., 225 Mo.App. 49, 32 S.W.2d 111 (1930), or the mortgagor-insured may bring suit in his own name. Payne v. Bankers’ & Shippers’ Ins. Co. of N.Y., 229 Mo.App. 901, 77 S.W.2d 183 (1934); Branigan v. Jefferson Mut. Fire Ins. Co., 102 Mo.App. 70, 76 S.W. 643 (1903); Anthony v. German Am. Ins. Co., 48 Mo.App. 65 (1892). In Florea the court said, 32 S.W.2d l.c. 114: “Conceding that the extent of the debt owing to the mortgagees may have foreclosed to Florea the right to share in the proceeds, he [the mortgagor] was yet the owner of the bare legal title to the cause of action, and as such was a real party in interest under section 1155, Rev.St. 1919 [now § 507.010 RSMo 1969], and entitled to maintain an action thereon, even though the beneficial ownership was vested in another. Swift & Co. v. Wabash R. Co., 149 Mo.App. 526, 131 S.W. 124; Keeley v. Indemnity Co. of America, 222 Mo.App. 439, 7 S.W.2d 434. It would seem under the circumstances that either Florea [the mortgagor] or Fahey Bros, [the mortgagees] might have brought the suit alone, Florea as the trustee of an express trust, and Fa-hey Bros, as the parties for whose benefit the contract was made, but nevertheless, under the terms of the loss-payable clause, it was proper for them to be joined as plaintiffs, since, no matter how they sued, a recovery by either or both would bar any further action on the policy.” In Payne the court said, 77 S.W.2d l.c. 187: “The owners were the ones primarily insured and the mortgagee secondarily. In so far as the insurance is in favor of the mortgagee, the owner is, under section 699, [trustee of an express trust statute] trustee for the mortgagee’s benefit. * * * The entire insurance is for the benefit of the owner; for any payment by the company to the mortgagee is for the owner’s benefit to the extent that the debt is discharged. The company engages to pay loss to the owners, and to the mortgagee such part of the insurance payable to the latter, but does not promise the mortgagee to pay the owners such part as may be due to them, so that the owners (plaintiffs) are parties to the entire contract while the mortgagee is a party to only a portion thereof. Again, the loss insured against falls on the owners to a certainty, but only to the mortgagee in the event of the insolvency of the owners, and then only to the value of his security.”

FHA elected to recover its debt not by enforcing the insurance policy, which it had a right to do, but by foreclosing the deed of trust. The policy was not only for the protection of the mortgagee, but also for the benefit of the owners of the property for the protection of whatever equity of redemption they might have in the property. As it turned out the amount of the debt and the face amount of the policy were equivalents. The insurer issued the policy and accepted the premium on an agreement to pay $15,000 on the hazard of the occurrence of a complete loss by fire. The event insured against having occurred, the insurer is not to be excused from meeting the obligation of its contract simply because the mortgagee did not insist upon enforcement of the loss-payable clause, but instead resorted to the land to secure satisfaction of the debt. Insurer’s engagement was to pay the mortgagee “Loss or damage, if any, under this policy, * * *” (our emphasis), and if the mortgagee suffered no loss (by reason of satisfaction of the mortgage debt by foreclosure) insurer’s engagement was to pay the proceeds of the policy to the insureds.

Next, MFA questions Magalena’s entitlement to more than half the proceeds of the policy, arguing that since the named insureds were Magalena and her husband Vernon, and since they were later divorced, Vernon was entitled to half the proceeds on the date of the loss (at which time he had not yet been discharged in bankruptcy). The defense that the divorce and bankruptcy disentitled Magalena to recover more than half the policy proceeds is an affirmative defense which was not raised in the trial court. The trial judge had no opportunity to consider this defense. The point has not been preserved for appellate review, and comes too late for consideration in this Court.

MFA further contends that Magale-na’s own evidence shows that her damage and loss was substantially less than the face amount of the policy, $15,000. MFA figures the loss at no more than $9,500, based on a valuation of the 20-acre tract at $14,-000 and the fact that shortly before the fire a contract for the sale of the entire property (land and house) for $23,500 was signed. MFA says an even more realistic value of the house would be around $8,000, based on the price FHA paid for the land sans house at foreclosure ($16,150) and the amount for which FHA sold the land ($16,500).

The fire totally destroyed the house, which cost $15,000. The trial court found, and we find, that there was no depreciation between the date the policy issued and the date of the fire. MFA issued a policy in the amount of $15,000. Section 379.140, RSMo 1969 provides: “In all suits brought upon policies of insurance against loss or damage by fire * * * the defendant shall not be permitted to deny that the property insured thereby was worth at the time of the issuing of the policy the full amount insured therein on said property; and in case of total loss of the property insured, the measure of damage shall be the amount for which the same was insured, less whatever depreciation in value, below the amount for which the property is insured, the property may have sustained between the time of issuing the policy and the time of the loss, and the burden of proving such depreciation shall be upon the defendant * * *.”

Under § 379.140 the measure of damages is $15,000. Under the evidence there was no depreciation. Accordingly, there was no error in the $15,000 award.

MFA’s final point, that the court erred in awarding a sum for vexatious refusal to pay is sustained. The test, under Laws 1975, p. 225, H.B. No. 93, § 1, is whether the refusal to pay the loss is “without reasonable cause or excuse.” The reason for denying liability was lack of insurable interest. There was reasonable cause to believe that Magalena lacked insurable interest in the property, by reason of the fact that MFA had notice that on the public records of Jefferson County there was a recorded warranty deed showing that some 14 months prior to the fire Magalena had joined with her husband in conveying the insured premises to Nicholas and Virginia Watz by an apparently valid deed with a covenant to warrant and defend the title against all persons whomsoever, excepting for taxes, and the further fact that the last premium on the policy before the fire was paid by one Joe Watz, and not by the named insureds (which might be taken as an indication that Magalena no longer had any interest in the property). A refusal to pay when payment is due is not vexatious if founded on what at the time appeared to be the facts. The insurer had a right, without penalty, to litigate an open question of law or disputed facts for which there was reasonable cause for belief. Cohen v. Metropolitan Life Ins. Co., 444 S.W.2d 498 (Mo.App.1969).

Implicit in this finding is the denial of Magalena’s request for an award of damages for frivolous appeal under Rule 84.19.

Judgment affirmed for $15,000 damages on the policy; reversed as to the award of $1,500 for vexatious refusal to pay and the consequential award of $2,500 attorney’s fee.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . Also referred to in the transcript as Magdalen E. Meyer.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie James VAN, Defendant-Appellant.
    No. 37704.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 16, 1976.

      Robert C. Babione, Public Defender, J. C. Jones, Asst. Public Defender, Christelle Adelman-Adler, Mary Louise Moran, St. Louis, for defendant-appellant.
    John C. Danforth, Atty, Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

A jury convicted Eddie James Van of Stealing Over Fifty Dollars, § 560.156, RSMo 1969, and he appeals. We affirm.

Shortly after noon on July 8, 1975 Richard Coyle, Assistant Manager of the F. W. Woolworth store at 3601 Olive Street in the City of St. Louis, while descending on the escalator in the store, noticed a man in the back of the music department with a green satchel. The man was stacking phonograph records on top of the counter and placing them in the satchel. Coyle watched the man. As their eyes met the man (identified by Coyle as this appellant) walked away from the record cash register, where a clerk was on duty, and left the record department. Coyle notified security guard Sam Denson that there was a man in the back with a green satchel with records in it. At Denson’s request Coyle pointed out appellant. By then appellant was at the lunch counter. To get to the lunch counter appellant had passed the cash register at the record counter; passed the stationery counter, where a clerk was on duty at another cash register, and passed the cash register at the card counter. Denson approached appellant at the lunch counter, asked if he could look inside the green satchel. Inside the satchel was a number of long playing record albums. The satchel was taken to a back room in the store where it was emptied. The contents were inventoried by Coyle, who called the police. Police arrested appellant, seized the satchel, containing 21 long playing record albums, seized the albums and searched appellant. On appellant’s person police found 30-35$ in change, a necklace, a ring and a key holder. At the trial Coyle and Denson identified appellant as the man they observed in the store on the occasion in question.

During voir dire Daniel J. Murphy, Assistant Circuit Attorney, told the panel that defendant is presumed innocent; that the state must prove him guilty beyond a reasonable doubt; that in a criminal case there is a higher level of proof required to convict than in a civil case, and stated “I am not required to prove this man guilty beyond all doubt.” An objection to that as a definition of reasonable doubt was overruled, whereupon he continued: “I am not required to prove him guilty beyond any and all doubt, only beyond a reasonable doubt. * * * And what a reasonable doubt is will all be explained to you when you get your instructions. The State is not assuming a burden beyond any and all doubt, just beyond a reasonable doubt.”

It was improper for Mr. Murphy to tell the panel on voir dire examination what burden of proof rests upon the state, and to differentiate between beyond a reasonable doubt and beyond any and all doubt. For more than fifty years it has been the law of this State that “It is not proper for counsel to state any law applicable to the case not embodied in the written instruction to the jury.” State v. Davis, 284 Mo. 695, 225 S.W. 707, 710 (1920). It is elementary that instructing the jury on the burden of proof is a function of the trial judge, who in his discretion may read MAI-CR 2.02, as a part of MAI-CR 1.02, and that no other instruction by the court (and certainly not by counsel) may be given further elaborating upon or attempting to define reasonable doubt. Notes on Use, following MAI-CR 2.20. Mr. Murphy was not asking a question. He was informing the jury as to the law, which was not his prerogative. State v. Smith, 422 S.W.2d 50, 68[31] (Mo. banc 1967).

As a general rule error is presumed to be prejudicial, and it is our duty to determine judicially whether under the particular facts of this case appellant was prejudiced. After considering the question at length we believe it is clear that no prejudice resulted. Although in saying it Mr. Murphy was improperly assuming the prerogative of the trial judge, what he said with reference to the State’s burden was not incorrect. After all, it is true that in order to convict the State must prove an accused guilty beyond a reasonable doubt, and that the State has no higher or greater burden of proof. Mr. Murphy was not accurate, however, when he said that what reasonable doubt is would be explained in the instructions. MAI-CR 2.20 does not explain or define reasonable doubt, probably because “Reasonable doubt is reasonable doubt, and that is about all that can be said in regard to it.” State v. Talmage, 107 Mo. 543, 17 S.W. 990, 991 (1891). The term needs no further definition. We do not see, however, how this inaccuracy could have prejudiced appellant. Although we condemn the practice and admonish all prosecutors, as well as defense counsel, not to inform or state to the jury what the law is, or what counsel thinks the law may be, we find nothing in the remarks which might have injured appellant’s cause or prejudiced his case.

Appellant asserts error in connection with the admission of evidence introduced by the State to establish the value of the record albums allegedly stolen. The manager of the store, Robert Colson, testified that the 21 albums were the property of F. W. Woolworth Company; that invoices for the records were sent to Woolworth by the record distributor. Using an invoice dated June 24, 1975 (Exhibit No. 3) he testified that the total value of the 21 albums was “somewhere around eighty-eight dollars”; that he checks over these invoices as a part of his duties as store manager; that invoices are sent to him in the normal and ordinary course of business, and bills are paid by Woolworth on the basis of these invoices; and that 13 of the 21 albums found in appellant’s satchel were duplicates. Appellant objected to Exhibit No. 2 on the ground of hearsay, and now contends that Colson was not properly qualified as the custodian of the records; that he did not testify that they were kept in the ordinary course of business or that the entries were made at or about the time of the transactions they reflect, or how they were kept or prepared in the ordinary course of business.

The evidence we have summarized meets the requirements of § 490.680, RSMo 1969, the Uniform Business Records as Evidence Act. It shows that the manager of the store, Mr. Colson, was custodian of the records; that he identified the invoice, accounted for its origin and transmission from the record distributor to Colson in the normal and ordinary course of business, near the time in question, and explained its mode of preparation, showing how the distributor indicates its identity by numbers which correspond with numbers on the computer labels on the records, and that the invoice contains the identification number of the Woolworth store. There was no abuse of discretion in admitting the store manager’s testimony, or in admitting Exhibit No. 3, in evidence.

In any event the testimony of the owner of personal property, State v. Walker, 365 S.W.2d 597 (Mo.1963); State v. Matzker, 500 S.W.2d 54, 57[9] (Mo.App.1973), or the manager of a corporate outlet, without more, is sufficient to justify submission to the jury of the issue of the value of such property.

There was no error in refusing Instruction No. A, offered by appellant, on the lesser included offense of Attempted Stealing Over Fifty Dollars. Appellant contends the evidence did not prove as a matter of law that a stealing had taken place, and it was a jury question whether appellant was guilty only of attempting to steal.

The evidence clearly demonstrates a completed crime of Stealing as that crime is defined in § 560.156, RSMo 1969. It is incontrovertible under this evidence that the accused exercised dominion over the record albums in a manner inconsistent with the rights of F. W. Woolworth Company, by taking, obtaining, transferring, concealing and retaining possession of the albums. “[I]f one in the course of a robbery or larceny (and with the other elements present) gains control of the property even for an instant, the crime is complete.” State v. Murray, 280 S.W.2d 809, 812 (Mo.1955). When and if appellant, with intent to steal, assumed possession of the record albums and placed them inside his satchel the crime of stealing was complete. When there is proof of a completed crime there is no necessity of giving an instruction on an attempted crime. State v. Murray, supra; State v. Thomas, 525 S.W.2d 833, 835[4] (Mo.App.1975).

There was no error in failing to declare a mistrial on objection and request of appellant when at the close of the State’s case the assistant circuit attorney said, “Your Honor, as far as the jury is concerned, that would complete the State’s evidence in this case.” Appellant argues that this statement allowed the jury to infer that there was other evidence against defendant — prior convictions as well as other evidence even more damaging, limited only by the imagination of the jurors — which they would not hear, thereby prejudicing the minds of the jurors. We are not persuaded that this statement carried with it the implication suggested by counsel who, trained in criminal procedure and knowing that evidence of a previous conviction was about to be introduced outside the hearing of the jury, might place that interpretation on the statement. Instead, it is much more likely that the jurors, if they paid any attention to the statement, understood it to mean that the State had completed its presentation of evidence to the jury.

In closing argument the assistant circuit attorney, referring to the elements of the crime as set forth in an instruction, said, “If all four of those elements had not been proven, we would not be at this stage of the case.” Appellant contends that the effect of this statement was to “cause the jury to infer that the Court had ruled that there was sufficient evidence in the case of the defendant’s guilt and, therefore, the case was being submitted to them for a finding of guilty”; that by thus confusing the standard required to overrule a motion for acquittal and the standard required to convict, the jury was misled and defendant was prejudiced. The record shows that a formal objection was made to this statement and that the court sustained the objection. A motion for a mistrial was overruled. A request that the jury be instructed to disregard the statement was sustained, and the jury was so instructed.

The prosecutor’s statement was unfortunate and uncalled for, but the court ruled properly. The rulings sustaining the objection and instructing the jury to disregard cured any error. There was no abuse of discretion in not aborting the trial for this infraction. Again, appellate counsel’s training in criminal procedure and trial practice causes her to read into this statement more than a lay juror, untrained in the appellate standard of review of the sufficiency of evidence to sustain a criminal conviction, would be likely to sense.

Exception is taken to the fact that the verdict forms which went to the jury titled the case “STATE OF MISSOURI V. EDDIE JAMES VAN also known as EDDIE VANN.” Appellant claims that since there was no reference at the trial to the use by appellant of an alias or that he had tried to hide his true identity when arrested or at any other time, there is a reasonable possibility that the use of the alias in the verdict forms might have contributed to the conviction by encouraging the jury to infer that at some time he had reason to try to hide his true identity, and that this carried an unfavorable connotation and reflected upon his character in an unwarranted and unnecessary manner. The State’s explanation of the reason for titling the verdict forms in this manner is that appellant’s name appeared in the certified transcript of his serial record as “Vann” whereas at the time of the offense he spelled his name V-a-n.

The Supreme Court has held that the suggested adverse implication cannot be drawn from the reference to one alias (as contrasted with a reference to numerous aliases). State v. Loston, 234 S.W.2d 535 (Mo.1950). Only one alias was used here. While the improper, unfair use of an alias could warrant granting a mistrial, State v. Varner, 329 S.W.2d 623, 626[3] (Mo.1959), we have concluded that in appraising the significance of the use of the one alias in the verdict forms “ ‘in relation to the processes of the trial as a whole,’ ” State v. Trevino, 428 S.W.2d 552, 553[1] (Mo.1968), the court did not abuse its discretion in this instance. State v. Stubenrouch, 499 S.W.2d 824 (Mo.App.1973). As in Trevino, the evidence of appellant’s guilt was “well-nigh overwhelming.” He was “caught red-handed” and the fact that an alias was referred to in the verdict forms (there being no showing that any juror noticed the fact) was of little or no significance in relation to the processes of the trial as a whole.

Judgment of conviction affirmed.

SMITH, C. J. and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Judge.

text:
    Evelyn Louise McCLASKEY, Appellant, v. Leamon Lee McCLASKEY, Respondent.
    No. 37601.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 16, 1976.

      Roesel & Scher, Jess W. Ullom, Isadore Scher, Clayton, for appellant.
    Champ C. Stonebraker, St. Louis, for respondent.
   CLEMENS, Judge.

This appeal presents a novel issue in Missouri: Where a husband has been ordered to make child-support payments to the divorced wife, is he entitled to credit for social security payments made to her thereafter for the children’s benefit? We hold the father is entitled to credit against support payments falling due after social security payments have begun, but is not necessarily entitled to a carry-back credit against support payments that were delinquent when the social security, payments began.

Three years after the parties were divorced the present garnishment proceeding was filed by plaintiff Evelyn Louise MeClaskey (hereafter referred to as wife) against her former husband, defendant Leamon Lee MeClaskey (hereafter referred to as husband). By this, she sought to collect unpaid child-support allowances by execution against the proceeds of several life insurance policies payable to her former husband. In support of her request for execution, the wife alleged the parties were divorced in November 1971 and that her award for child support remained unpaid. The husband countered by moving to quash the execution on the ground the amount claimed by the wife for past due child support was excessive in that she had failed to give him credit for payments he had made to her both directly and by social security payments made to her for their children’s benefit.

At the garnishment hearing it was shown that the parties had been divorced in November 1971 and the husband was ordered to pay the wife $50 a week for support of three minor children. From that time to June 1972 the husband had directly paid the wife only $675 and was $2,358 delinquent in the child-support allowances.

Shortly after the divorce the husband had retired at age 65. As of December 1971 he and his three children became eligible for social security retirement benefits. A year later, the wife received a letter from the Social Security Administration informing her that her children were entitled to benefits. She then applied for the benefits and in February 1973 received a $2,742.40 social security check payable to her “for the children of Leamon L. McClaskey.” This check apparently represented the benefits accumulated from December 1971 through January 1973. As said, the husband was then $2,358 delinquent in child-support payments. Thereafter, the wife received monthly social security checks of $219.60, later increased to $263.10. These monthly payments exceeded the $50 a week child-support installments thereafter due her from the father.

The trial court sustained the husband’s motion on this evidence, thereby quashing the execution. The ruling was based on a finding the social security payments received by the wife for the minor children exceeded the amounts due her under the original decree and that the husband was entitled to credit for all social security payments received by the wife. She has appealed from that order.

The issue of such credits is novel to Missouri but other jurisdictions have credited social security benefits against support orders where, as here, there were no contrary provisions in the support decree. Missouri’s general rule is that a father may not have credit against a child-support judgment other than by his direct payment to the wife. But Missouri courts recognize exceptions under appropriate circumstances and hold that credit should be given to the husband when dictated by equitable considerations. Meyer v. Meyer, 493 S.W.2d 42[1] (Mo.App.1973); Webb v. Webb, 475 S.W.2d 134[3] (Mo.App.1971). The rationale of the general rule is that because the wife has been awarded custody of the children and a judgment rendered in her favor for their support it is her privilege and responsibility to determine the manner of spending the funds payable under the judgment. The husband has no absolute right to alter the terms of the decree and dictate the method of furnishing support. Stemme v. Stemme, 351 S.W.2d 823[2] (Mo.App.1961).

But social security payments differ from non-complying payments made by a father. The wife receives the social security as custodian for the minor children beneficiaries. It is she, not the husband, who determines how the money is to be spent. The only limitation imposed on her use of social security payments is that she use them for the children’s benefit. This same limitation is imposed on the use of court-ordered child-support payments. The use of social security payments to satisfy a child-support obligation is merely a change in the manner of payment; the nature of the funds is the same. As succinctly stated in Binns v. Maddox, 327 So.2d 726 (Ala.Ct.App.1976): “An order of support is for the benefit of the children, even though directed paid to the mother or other custodian. If the sum directed to be paid by the father is paid by the government through social security benefits derived from the account of the father, the purpose of the order has been accomplished. The father is entitled to be credited with such payments against his liability under the decree.” We have considered other supporting cases.

Payments prescribed by the Social Security Act are not gratuities or matters of grace; they are not public assistance or welfare payments. Anderson v. Powell, 235 Ga. 738, 221 S.E.2d 565 (1975). Social security benefits are from funds earned in part by the individual who throughout his working life has contributed to the benefits by deductions from his wages. There is no special limitation imposed on the use of the funds by the wife. Thompson v. Thompson, 254 Ark. 581, 496 S.W.2d 425 (1973). However, the amount by which the monthly social security benefits exceed the amount required under the support decree are considered gratuitous. Andler v. Andler, 217 Kan. 538, 538 P.2d 649[3] (1975), and cannot be credited as advanced payments for future child support.

In our case, monthly social security benefits commenced in February of 1973. They had continued until trial time and have exceeded the periodic amounts accruing thereafter under the original decree. These monthly payments constituted complete satisfaction of the husband’s child-support obligations as they thereafter fell due and we hold the trial court properly credited those payments against the amounts claimed by the wife for current child-support payments. The order of the trial court insofar as it grants credit for the monthly social security payments against the support obligation commencing in February 1973 is affirmed.

But a different problem is presented by the $2,742 lump-sum social security check received by the wife in February of 1973. This represented the accumulated but until-then unpaid social security benefits due for the children for the period of December, 1971 to January, 1973. Throughout this time, the wife received no social security payments and the husband had by then paid her only $675 in sporadic installments and was $2,358 in arrears.

The wife contends the trial court erred in giving the father credit for the February, 1973 lump-sum payment against the arrear-ages that had accumulated before the monthly payments began.

From the time of the divorce in November, 1971 the mother was entitled to receive $50 a week from the father for the children’s support. The father did not comply. He made sporadic, insufficient payments until May of 1972 and paid nothing directly thereafter. Until the monthly social security payments began in February of 1973 the father had paid only a third of his child-support obligation and thereby shifted two-thirds of his child-support obligation to the wife.

During this time — from the divorce until the monthly benefits began — the wife was entitled prima facie to look to the husband for full and prompt payment of his obligation. This, because a child’s need for food, clothing, lodging and other necessary expenses is current — today, this week, this month — and the expectation of a future payment does not meet these needs. To allow the lump-sum payment to be credited against the father’s delinquencies, as he urges us to do, could permit him to deliberately create those delinquencies, thereby depriving his children of support, all in the hope that some accrued benefit would cancel his growing default. When the windfall comes, equitably it should inure not to the defaulting husband’s benefit, but to his bereft children.

This conclusion, as to no credit for the lump-sum payment, is based on two factors — implied but not firmly developed by the record. Either factor could determine whether or not the husband is in equity entitled to credit for the lump-sum payments. First, interrogatories imply but do not confirm an agreement by the wife to accept future social security benefits in lieu of child-support payments. Second, the record does not explain the year-long delay in the wife’s receiving the lump-sum payment; the husband’s — or the wife’s — participation in permitting this delay could affect the parties’ equities on the issue of allowing the husband credit for the lump-sum payment against his unpaid judgment. These factors and any others deemed pertinent to the lump-sum credit should be developed by the trial court on remand.

The trial court’s order, to the extent it allowed credit for the $2,742.40 lump-sum payment of February 1973, is reversed and the cause remanded for proceedings consistent with this opinion.

WEIER, P. J., and DOWD, J., concur.

      . Cash v. Cash, 234 Ark. 603, 353 S.W.2d 348 (1962); Horton v. Horton, 219 Ga. 177, 132 S.E.2d 200 (1963); Andler v. Andler, 217 Kan. 539, 538 P.2d 649 (1975); Cohen v. Murphy, 330 N.E.2d 473 (Mass.1975); Binns v. Maddox, 327 So.2d 726 (Ala.App.1976). Fowler v. Fowler, 156 Conn. 569, 244 A.2d 375 (1968) contempt complete before benefits began. But see Cohen v. Cohen, 246 So.2d 581 (Fla.App.1971) social security death benefits not credited against voluntary property settlement.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert C. HOWELL, Defendant-Appellant.
    No. 10185.
    Missouri Court of Appeals, Springfield District.
    Nov. 17, 1976.

      John C. Danforth, Atty. Gen., Preston Dean, David L. Baylard, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Harry H. Bock, New Madrid, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

In accordance with jury verdicts, the trial court sentenced defendant to consecutive terms of life imprisonment for (Count I) the first degree murder of David Blankenship and for (Count II) the assault on Randy Krebs with intent to kill with malice aforethought. The crimes were allegedly committed by defendant with the use of a .38 caliber pistol shortly before midnight on Saturday, November 18, 1972, while he, Krebs and Blankenship were sitting in the latter’s automobile “up on the levee” near New Madrid, Missouri.

Defendant had previously been separately charged, jury-tried and convicted of the two crimes. In the consolidated appeals from the prior convictions, the causes were reversed and remanded for new trials by the Supreme Court because the state had not sustained its burden of showing probable cause for defendant’s warrantless arrest and because the trial court erred in overruling portions of defendant’s motions to suppress. State v. Howell, 524 S.W.2d 11 (Mo. banc 1975). Following remand, an amended information was filed charging defendant with the crimes in two counts. Defendant renewed and augmented his motions to suppress evidence and the results of certain tests conducted by the state. At the conclusion of a hearing on the motions, they were overruled and the evidence and tests sought to be suppressed were admitted into evidence over defendant’s repeated objections.

Preliminarily we consider the state’s motion to dismiss the present appeal or to strike defendant’s brief for failure to comply with Rules 84.04(d), (e) and (h), V.A. M.R. We agree the rules were violated. Nonetheless, we will consider the points relied on by defendant to see if plain error affecting substantial rights was committed (Rule 27.20(c), V.A.M.R.) because of the contention that defendant’s federally guaranteed rights were violated [State v. Coyne, 452 S.W.2d 227, 228[1] (Mo.1970); State v. Fields, 538 S.W.2d 348, 350[2] (Mo.App.1976)], and the claim that the essential elements of first degree murder were not proved by the state. State v. White, 439 S.W.2d 752, 753[2] (Mo.1969); State v. Alderman, 500 S.W.2d 35, 36[1] (Mo.App.1973). Accordingly, the state’s motion is denied.

At the time of his warrantless arrest on the public streets of New Madrid at 10 a. m. Sunday, November 19, defendant was bedizened, inter alia, in a long black velvet coat. This garment was seized by the officers and patches were taken therefrom for testing. The tests revealed the presence of human blood on the coat of an inconclusive type; they also revealed the coat was stained with vomit similar to vomit discovered in the automobile in which Blankenship and Krebs were found. Also after defendant’s arrest, a gun residue test was done on his hands which indicated defendant had recently handled and discharged a firearm. It was held in State v. Howell, supra, 524 S.W.2d at 16 and 17[3], that the items seized from defendant’s person and the gun residue test performed on defendant’s hands after his arrest violated defendant’s constitutional rights against unreasonable searches and seizures under art. I, § 15, Mo.Const., and Amends. 4 and 14, U.S. Const., unless the state could sustain its burden of showing that there was probable cause to arrest defendant before the searches and seizures took place. Defendant’s first point is to the effect that the trial court erred in not suppressing the evidence relating to the coat and the gun residue test because the officers had no probable cause to arrest him.

The constitutional validity of the searches and seizures in this case depends upon the constitutional validity of defendant’s arrest. As the officers had knowledge that felonies had been committed, whether the arrest was constitutionally valid depends in turn on whether the officials, at the moment of arrest, had knowledge of facts and circumstances based on reasonably trustworthy information which would justify a prudent person in believing that defendant had committed the offenses. State v. Perry, 499 S.W.2d 473, 475[2] (Mo.1973); State v. Novak, 428 S.W.2d 585, 591[7] (Mo.1968). Of course, an arrest may not be employed as a pretext to search for evidence [State v. Moody, 443 S.W.2d 802, 804[2] (Mo.1969)], and neither may the post-arrest discovery of incriminating evidence nor an ultimate conviction be relied upon to uphold the validity of an arrest. State v. Seymour, 438 S.W.2d 161, 162-163[2] (Mo.1969). The factual issue of probable cause must be resolved from facts and circumstances peculiar to each particular case, bearing ever in mind the caveat that probable cause can never be satisfied with a bare suspicion of guilt. State v. Goodman, 449 S.W.2d 656, 660[5] (Mo.1970). Therefore, it becomes essential to learn exactly what the officers knew and did not know prior to the arrest of defendant with respect to his involvement in the shooting of Blankenship and Krebs.

What the officers knew: Three people discovered Blankenship’s car on the levee in the early morning hours of Sunday, November 19. Inside was a dead man and a wounded man who were taken via ambulance to a hospital in Sikeston. The car was removed from the levee and taken to the premises of a motor company in New Madrid. The New Madrid County sheriff arrived at the motor company about 3:30 a. m. and established his investigation headquarters at that location ostensibly because the courthouse was locked. t)ther officers and officials arrived thereafter. To ascertain the identity of the victims, the sheriff telephoned the hospital in Sikeston, spoke to the ambulance driver and learned their names. Krebs was later taken to a hospital in Memphis and none of the officers talked with him before defendant was arrested. Two days before discovery of the crimes, i. e., Friday night, November 17, Randy Krebs, Larry Speight and Jerry Brockman were sitting in Speight’s car in front of Willy Gilmore’s Brotherly Love Club in New Madrid listening to taped music. Sonny Buchanan and a person then known as “Cricket” (later identified as being defendant) approached the car and inquired about the availability of marijuana. Cricket was described as “colored” with a mustache, wearing a green pantsuit and a long black velvet coat. When advised that none of the car occupants had any marijuana, either Cricket or Buchanan or both inquired about the possibility of buying some. Krebs told Cricket “he might find him tomorrow” about supplying marijuana. Cricket and Buchanan then rode in Speight’s car to where they were let out near their respective residences. This was the last the officers knew of Cricket’s activities. Presumably the next day, Saturday, November 18, Krebs, Blankenship (the two victims), Bill Recker and “a Mann boy” went to an abandoned house “ten miles up the levee from New Madrid” to get three pounds of marijuana “that was alleged to be used to sell to” Cricket. From interviewing some of the people above mentioned, the officers also knew that none of them professed having any knowledge or information regarding the shootings, when the crimes had been committed, or the whereabouts of Cricket after Friday night.

What the officers did not know: What time the crimes had been committed; a description of the perpetrator or perpetrators of the crimes; information as to his or their identities, sex or activities at any time; the relationship of defendant with Blankenship, or whether defendant ever saw or was acquainted with him; defendant’s relationship with Krebs, except on one occasion two days before; the activities of Cricket after he left Speight’s automobile on Friday night; whether there had been any trouble or threats between Cricket and the victims; whether any physical evidence, including fingerprints, existed either within or without the car in which the victims were found that would indicate defendant or any particular person or persons had committed the crimes; whether Cricket (defendant) had on his person or at his place of residence any firearms, clothing or other objects which could connect him with the crimes; whether defendant had any residue upon his hands that would indicate he had recently handled or discharged a firearm; whether defendant was a police character or had a previous criminal record; whether defendant had ever been in Blankenship’s automobile; whether defendant had ever been on the levee where the crimes were apparently committed; ad infinitum.

The foregoing of what the officers knew and did not know at the moment of arrest, indicates they knew of no facts or circumstances from which they could infer a nexus between defendant and the crimes. Cf. State v. Hicks, 515 S.W.2d 518, 521[1—5] (Mo.1974). The knowledge that defendant, two days before the time of his arrest, had talked with Krebs about the possibility of purchasing marijuana at some future unspecified time and place would only give rise to the barest suspicion of defendant’s connection with the crimes. As previously observed, bare suspicion is not enough to permit officers to make a warrantless arrest. State v. Whorton, 487 S.W.2d 865, 867[3] (Mo.1972). In fine, we say there was no probable cause for defendant’s warrant-less arrest and the trial court erred in not sustaining defendant’s motions to suppress and in overruling defendant’s trial objections to the evidence obtained by the state through its unlawful searches and seizures. The fact that the deputy sheriff who made the warrantless arrest of defendant said he arrested defendant for “investigation,” did not justify his action. “An arrest not on a legal charge but for investigation, simply to afford the police officers time and opportunity to investigate and amass facts sufficient to constitute probable cause, is not lawful. Staples v. United States, 320 F.2d 817 (5th Cir. 1963); United States v. Martinez, 465 F.2d 79, 82[4] (2nd Cir. 1972).” State v. Hicks, supra, 515 S.W.2d at 522[6],

Defendant’s second point claims the trial court erred in failing to sustain his motion for judgment of acquittal (Rule 26.-10, V.A.M.R.) because “[t]he essential elements of first degree murder were not proved by the State.” Otherwise stated, defendant says the evidence was not sufficient to sustain his conviction for first degree murder. When this challenge occurs, we are obliged to accept as true all evidence, circumstantial or direct, favorable to the verdict, together with all favorable inferences that can reasonably be drawn therefrom, and reject all contrary evidence and inferences. State v. Mussman, 526 S.W.2d 62—63[1] (Mo.App.1975). When so viewed, the trial evidence in this case (ignoring the evidence which should have been suppressed) bespeaks of the following sum-marization.

Trial testimony of the meeting of Krebs, defendant, et alii, at Willy Gilmore’s Brotherly Love Club (a/k/a the Brotherhood Club) on Friday night, November 17, was much the same as previously recounted under defendant’s first point, supra, and will not be repeated. Krebs, at the trial, testified defendant had wanted three pounds of marijuana and Krebs’ asking price was $450. The following night, Saturday, November 18, at about 8 or 9 p. m., Krebs, Blankenship, Recker and “Gee”' Dawson drove in Blankenship’s 2-door white Vega automobile “up on the river in the country to get the marijuana.” Blankenship owned the marijuana and Krebs was to get half the profits on all he could sell. The marijuana was placed in three clear plastic bags and the quartet headed back toward New Madrid. Before reaching town the car was stopped, Krebs got out to hide the marijuana under a guardrail, and the group continued to the Brotherhood Club where Krebs found defendant. Defendant wanted the marijuana brought into the club but this procedure was vetoed. It was decided the marijuana would be taken to where defendant was living with his stepmother. Recker and Dawson were taken home leaving Blankenship and Krebs, with Blankenship driving, as the only occupants of the Vega. Being unable to determine the exact location of defendant’s place of abode, Blankenship parked the Vega on a well-lit supermarket parking lot in the vicinity of defendant’s house. After a 15-minute wait, defendant came up to the ear and got into the rear seat. Because it was a 2-door vehicle and Krebs was sitting in the right bucket seat, it was necessary for Krebs to lean forward and tilt the back of his seat so that defendant could gain entry. The two front bucket seats were “about and foot- and-a-half or two feet” apart. Defendant seated himself in the center of the back seat.

After departing the parking lot, Blankenship drove the car to the guardrail where Krebs got out, retrieved the sacks and handed them to defendant. All the windows of the car were shut because a misty rain was falling. It was then about 11:15 or 11:30 p. m. Blankenship drove the car down the levee two or three hundred yards and stopped. Blankenship and Krebs turned around in their seats and watched defendant examine the marijuana. Krebs offered to cut his previously quoted price. As the front seat passengers turned around forward and Blankenship was at the point of driving off, Krebs heard the “noise of a shot” and lost consciousness for a short time. When he regained consciousness, Krebs sensed a movement in or of the car so he “laid still until there was no movement and no noise and I was sure no one was there.” He then saw Blankenship’s body between the bucket seats of the ear with his legs and lower portion of his body in toward the right front bucket seat and the upper part of his body in the back. Krebs tried to open the car door but was unable to do so because “I was paralyzed in my [right] arm and leg . . . then the next thing I remember was Harry King opening the door when he found us.”

King and some friends were driving down the levee road “close” to 1 a. m. Sunday, November 19. He was acquainted with Krebs and Blankenship and was familiar with the white Vega. King saw the Vega “off on the side of the road and the lights were on.” When he stopped to investigate he found Krebs and Blankenship inside the car in the positions described by Krebs. King instructed his friends to “get the sheriff and an ambulance,” and waited at the scene until the ambulance arrived. Krebs was bloody and unable to talk. There was blood on the seats and floor of the Vega; also vomit.

A post-mortem examination of Blankenship’s head showed a .38 caliber lead bullet had entered at the back of the skull on the right side about the level of the external opening of the right ear and was found imbedded in the front of the skull “about the level of the hairline on the left side about the level of the left eye.” The gunshot wound received by Krebs was evidenced by a small opening in front of the left ear and X-ray examination disclosed that fragments from a bullet were inside his brain.

Approximately thirty minutes after defendant’s arrest, Deputy Sheriff Ivy went to the home of defendant’s stepmother and asked for defendant’s clothing. Mr. Ivy did not enter the house and the stepmother voluntarily gave the deputy, among other things, the green shirt and green pants defendant was reportedly wearing on the Friday night prior to commission of the crimes. Again, in State v. Howell, supra, 524 S.W.2d at 16[2], the Supreme Court held a search had not taken place for the green shirt and pants and that the trial court was correct in admitting these items into evidence and the results of certain tests done on them. Testing of a sample taken from the seat of the green pants revealed vomit stain similar to that found inside the Vega automobile.

The elements of murder in the first degree are deliberation, premeditation and malice aforethought. State v. Anderson, 515 S.W.2d 534, 537[1] (Mo. banc 1974). Deliberation is the matter of taking another’s life in a cool state of blood or with a cool and deliberate state of mind. State v. Jackson, 511 S.W.2d 771, 774[1] (Mo.1974); State v. Marston, 479 S.W.2d 481, 484[4] (Mo.1972). Premeditation to do the act need exist only for a moment. State v. Hammonds, 459 S.W.2d 365, 368[3] (Mo.1970); State v. Booker, 503 S.W.2d 76, 79[4] (Mo.App.1973). Malice does not connote ill will or mean spite but rather the intentional doing of a wrongful act without just cause or excuse [State v. Smart, 485 S.W.2d 90, 93[3] (Mo.1972)], and may be inferred from proof of an intentional killing with a deadly weapon. State v. Mitchell, 408 S.W.2d 39, 42[1] (Mo.1966). The elements of first degree murder may be inferred from circumstances surrounding the homicide. State v. Sturdivan, 497 S.W.2d 139, 142[4] (Mo.1973).

Defendant argues that because approximately an hour and a half elapsed from the time Krebs estimated he was shot and the victims were discovered in the car by King, there was no evidence that defendant fired the shot which killed Blankenship as there was no showing when that shot was fired. We do not agree. The state’s evidence placed defendant in the back seat of the Vega (the scene of the crime) at a time reasonably related to the death of Blankenship. Krebs said that after he was shot he lost consciousness “for a short time” and that when he regained consciousness and sensed a movement in the car, Blankenship’s body was lying between the bucket seats partially in the front portion of the car and partially in the back of the car. From this the jury could infer that Blankenship was then unconscious or dead from his head wound and defendant was still in or leaving the vehicle. The path taken by the bullet as it entered and lodged in Blankenship’s skull would reasonably indicate that the shot fatal to Blankenship had been fired from the rear seat of the vehicle where defendant was sitting when Krebs was shot.

In this case there was no evidence that the homicide and assault occurred at a time when defendant was aroused by some provocation to such a degree of passion as to interfere with his reason and judgment. State v. Henderson, 510 S.W.2d 813, 823[19] (Mo.App.1974). Also, at the time Krebs and Blankenship were shot they were seated on opposite sides of the automobile in the front bucket seats which were separated by one and a half or two feet. From this physical setting the jury could reasonably infer that the shootings were willful and deliberate, not accidental, and thus find the existence of the element of malice. With evidence of provocation lacking, the previously demonstrated willful intent to kill provided the elements of deliberation and premeditation. Accordingly, we rule there was no lack of evidence as to any of the essential elements of first degree murder.

The concluding paragraph of defendant’s written argument to his second point seems irrelevant to the issue and is barely appre-hensible. In effect it smacks of an assertion that testimony given by the state’s gunshot expert demonstrates that the nature of the wound received by Krebs would indicate he was not shot with the same size bullet which killed Blankenship. In cross-examining this witness counsel asked if a .38 caliber bullet “entered the ear of a person, how far would it travel downward?” The witness answered: “There would be many variables in a situation for me to answer a question of a nature like that with any degree of exactness. The only thing I could do would be speculate, but in the average situation it would do massive damage.” We do not see how this disproves that Blankenship and Krebs were not shot with the same weapon. The shot that wounded Krebs had not “entered the ear”; it made a small opening in front of the left ear inferrably by a bullet shot at an angle from the rear. It did, nevertheless, cause massive damage. Defendant’s second point relied on is denied.

Defendant’s third and final point asseverates that as he was given a ten-year sentence for the assault upon Krebs at his first trial, the assessment of a life sentence at his second trial after the cause was reversed and remanded violated the double jeopardy clause of Amend. 5, U.S.Const., and art. I, § 19, Mo.Const. Our ruling on defendant’s first point renders this point moot. Nevertheless, it is not amiss to note “that neither the double jeopardy provision nor the Equal Protection Clause [of Amend. 14, U.S.Const.] imposes an absolute bar to a more severe sentence upon reconviction” after a defendant has succeeded in getting his original conviction set aside for a new trial. North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 2079-2080, 23 L.Ed.2d 656, 668[13, 14] (1969). The restrictions imposed by Pearce against enhancing punishment on retrial do not apply, as here, where a defendant is retried by a jury and the jury fixes the sentence. Kansas City v. Henderson, 468 S.W.2d 48, 52[2] (Mo.1971), cert. den. 404 U.S. 1004, 92 S.Ct. 570, 30 L.Ed.2d 557 (1971); Spidle v. State, 446 S.W.2d 793, 795[2] (Mo.1969); State v. Holley, 488 S.W.2d 925, 927 (Mo.App.1972).

The judgment below is reversed and the cause is remanded for a new trial.

All concur.

      . Although defendant argues that the officers’ knowledge of facts and circumstances was not based on reasonably trustworthy information, for the purpose of this appeal we assume all information obtained by the officers was credible.

      . At trial it was said “Gee” Dawson, not the “Mann boy”, went to get marijuana with the others.

      . But even had they known of defendant’s previous criminal activities and record, if any, this would not have been sufficient knowledge to justify defendant’s arrest. State v. Cuezze, 249 S.W.2d 373, 376[3] (Mo.1952).


author: COOPER, Chief Justice.

text:
    TINDELL HOME CENTER, INC., Appellant, v. UNION PEOPLES BANK OF ANDERSON COUNTY, Tennessee, Appellee.
    Supreme Court of Tennessee.
    Oct. 11, 1976.
    Rehearing Denied Nov. 29, 1976.

      Sumter D. Ferguson, Jr., Knoxville, for appellant. ■
    W. Clark Meredith, Joyce, Anderson & Meredith, Oak Ridge, for appellee.
   OPINION

COOPER, Chief Justice.

In three cases consolidated for appeal, Tindell Home Center, Inc., takes issue with the decree of the Chancery Court of Anderson County that (1) Tindell had not perfected a materialman’s lien on lots 2, 3, and 33 in the West Ridge Addition of Anderson County, and (2) that, as a consequence, recovery by Tindell against the properties was limited to proceeds from the sale of the properties by the defendant Union Peoples Bank of Anderson County “in excess of the funds expended by the [Bank] on said properties].” The Bank, in turn, challenges the holding that Tindell has a claim — to the extent of money due it for material furnished for the construction of improvements on the properties — on any profit the Bank might make from a subsequent sale of the properties.

The actions were tried on stipulations of facts. Essentially, the parties stipulated that Ridge Builders, at the time the owner/builder, undertook to construct a dwelling on each of the lots. Subsequently, Ridge Builders executed deeds of trust to the Bank to secure loans made Ridge Builders for construction of the dwellings. In each instance, the deed of trust was executed after the visible commencement of construction on the lot conveyed. At the time of the execution and recordation of the deeds of trust, the Bank “was a good faith encumberer for a valuable consideration and without actual notice of [Tindell’s] claim.”

Tindell furnished Ridge Builders material used in the construction of each of the houses. The last delivery of material to lot 2 was August 26, 1974, lot 33 was September 7, 1974, and lot 3 was September 26, 1974.

None of the houses was completed by Ridge Builders, who abandoned the properties “on or about December 1, 1974.”

The Bank foreclosed the mortgages held by it, and purchased the properties at a public sale held on March 14, 1975. The Bank undertook to and did complete the houses on April 25, 1975.

Tindell filed notices of lien on April 23, 1975, with copies being served on the Bank. Suits to enforce the liens were filed by Tindell on April 25, 1975, and attachment was levied on the several properties.

The Bank, in purchasing the properties at the foreclosure sale, took them subject to valid liens prior in time to the mortgages. Cf. Green v. Williams, 92 Tenn. 220, 21 S.W. 520 (1890); McDonald v. Amo, 162 Tenn. 36, 34 S.W.2d 212 (1931). Tindell’s liens for materials furnished, if properly perfected, took effect from the time of visible commencement of operations on the properties (T.C.A. 64-1104), which was stipulated to have been prior to the execution and recor-dation of the Bank’s mortgages. The issue then is: Did Tindell perfect and preserve the materialman’s lien granted it by T.C.A. 64-1102, so that it remained superior to the mortgages?

A materialman’s lien is statutory and, consequently, the requirements relating to its perfection and preservation are mandatory. Southern Blow Pipe and Roofing Company v. Grubb, 36 Tenn.App. 641, 260 S.W.2d 191 (1953); McDonald v. Amo, 162 Tenn. 36, 34 S.W.2d 212 (1931). And, where the materialman fails to comply with any material requirement, he loses his lien and his priority over subsequent bona fide encumbrancers or purchasers. See Brown v. Brown & Co., 25 Tenn.App. 509, 160 S.W.2d 431 (1941).

T.C.A. 64-1112 provides that where material is furnished the owner of property for use in construction of an improvement on the property, and the contract is not registered, the material furnisher must file his notice of lien in the register’s office in the county where the property is located within the time prescribed by statute if the lien is to be effective against subsequent bona fide purchasers or encumbrancers of the property. The prescribed periods of time for the filing of the notice of lien to preserve it against subsequent purchasers or encum-brancers is “ninety (90) days after the building or structure or improvement is demolished, altered and/or completed, as the case may be, or the contract of the lienor expires or is terminated or he is discharged,

And if the owner/builder does not complete the improvements but abandons them, the materialman must file his notice of lien within ninety days from the completion or termination of his contract for it to be effective against subsequent bona fide encumbrancers or purchasers. Concrete Supply Company of Oak Ridge, Inc. v. Union Peoples Bank, et al., Tenn.App., 540 S.W.2d 250, cert. denied August 16, 1976; First State Bank v. Stacey, supra. Cf. Bird Bros. v. Southern Surety Co., 189 Tenn. 11, 15-16, 200 S.W. 978 (1918).

As heretofore noted, the parties stipulated the Bank was “a good faith encum-brancer for a valuable consideration.” They also stipulated that the owner/builder abandoned the properties on December 1, 1974. The Bank’s mortgages were not foreclosed until March 14,1975, which was more than ninety days after the last delivery of material by Tindell. In short, at the time of the mortgage foreclosures and sales, the statutory time allowed Tindell to perfect its materialman’s lien had passed; consequently, the Bank, as the purchaser of the properties at the public sale, took them free of liens for material furnished by Tindell, leaving Tindell with its claim against the owner/builder and against any funds paid for the properties at the foreclosure sales in excess of those due the Bank on its mortgages.

Tindell argues the abandonment of the construction projects is not the controlling factor where, as in this case, the purchaser of the properties at the foreclosure sale completed the buildings. Tindell insists that the completion of the houses gave lien claimants, including Tindell, a period of ninety (90) days after such completion within which to perfect their claim. We can not accept this argument for two reasons. First, the foreclosure sales did not occur until after the time of perfecting Tindell’s lien had passed and the mortgages were the superior lien. Second, to impose such a limitation on a purchaser of property abandoned by an owner/builder would result in such property going for a greatly reduced price since the purchaser, of necessity, could not complete the property on peril of making his interest subject to materialmen’s liens that otherwise could not be perfected.

The decree of the chancellor is affirmed, except for that part giving Tindell “a claim against any proceeds received [from a sale of the properties by the Bank] in excess of the funds expended by the [Bank] on the property,” which is reversed. Costs are adjudged against Tindell Home Center, Inc., (now Tindell’s, Inc.) and its surety.

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

OPINION ON PETITION TO REHEAR

A petition for rehearing has been filed on behalf of Tindell Home Center, Inc., (now Tindell’s, Inc.). After consideration of the same, the court is of the opinion that the petition is not well taken and it is accordingly overruled at the cost of the petitioner.

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


text:
    In re ADOPTION OF Andrew James GILLIS et al., Appellants, v. Estelle Lewis EGGELSTON, Administratrix of the Estate of Georgia Alma West Gillis, Deceased, et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 29, 1976.
    A. L. Pressgrove, Jr., Southhaven, Miss., for appellants.
    David Ballon, Memphis, for appellees.
   OPINION

COOPER, Chief Justice.

This is an appeal from a decree of the Probate Court of Shelby County dismissing the petition filed by Andrew Gillis, Jr., to have a final decree of adoption entered nunc pro tunc in the action filed by Cornelius Gillis and wife, Georgia Gillis.

At stake is the estate of Georgia Gillis (West), who died intestate. If the decree is entered nunc pro tunc, Andrew James Gil-lis, Jr., inherits as the adopted son of Mrs. Gillis (West). If not, the appellees inherit.

To set the stage for the filing of the petition under consideration, the record shows that Mr. and Mrs. Gillis sought to adopt their nephew, the appellant, by petition filed on December 12, 1925. . The proposed adoption was contested by the stepmother of appellant, with the result that on December 22, 1925, a “Decree Paroling Child to Petitioners, Cornelius Gillis and Georgia Gillis and Retaining Cause in Court for Further Action” was entered. The decree provided that the appellant was paroled to Cornelius and Georgia Gillis for three months, and granted them the right to apply to adopt the appellant after the expiration of the parole period.

Appellant averred in his petition for entry of a decree of adoption nunc pro tunc “that after the expiration of three months from the entry of [the decree of December 22, 1925, the Gillises] petitioned the Court for the adoption of the said Andrew James Gillis (Jr.), and after testimony had been introduced in open Court, the Court, having considered the entire record, granted the Petition of Cornelius and Georgia to adopt the said Andrew James Gillis (Jr.). A copy of Answer and Cross Bill of Cornelius Gillis and Georgia Gillis, his wife, setting forth these facts and filed in this cause [on July 11,1927] is attached hereto, marked Exhibit ‘A’ and incorporated herein by reference. That after the rendition of the decision of this Court as above stated, a decree was apparently drawn by said attorney and is in the file of this cause, but through inadvertence or oversight on the part of said attorney or the Clerk of the Court, said Decree was not signed by the Judge and entered on the minutes of the Court.”

It is this decree that appellant seeks to have entered nunc pro tunc.

Appellees moved to dismiss the petition on the grounds (1) that there is no authenticated record to support the entry of a nunc pro tunc decree of adoption; (2) that there is no legal basis for the entry of such a decree “Sans an Order, Decree, and Minutes of the Court, signed by the presiding Judge;” (3) the records of the court proceedings can be proven only by duly certified copies; and (4) the entry of a nunc pro tunc decree based on parol evidence is against public policy.

The trial judge sustained the motion, pointing out:

“The said purported Order is unnumbered, undated, unapproved by counsel, un-docketed and unsigned by the Court. There is no record to indicate that same was ever received by the Clerk of the Court or in what manner same was in the jacket containing the records in the cause. Such purported order is not a part of the official record.

“On July 6,1927, Judge Guthrie, the then presiding Judge of the Probate Court, directed in writing the Clerk of the Court, to set the case for hearing on July 12, 1927, and the record is silent as to what if anything occurred on said date in that there is no Order pertaining thereto.

“It also appeared unto the Court that throughout the proceedings, which were conducted in the cause, approximately fifty years past, that the records do not disclose that the Court signed or entered a written Decree of Adoption.

“A Court of Record can only speak through its minutes and the minutes in the cause do not reflect that a Decree of Adoption was ever entered or presented to the Court for entry.

“The Petition filed by Andrew James Gil-lis is not well taken and the Motion to Dismiss same should be granted.”

It is a truism that the trial court speaks through its minutes, but the truism does not preclude the entry of a judgment nunc pro tunc to make the minutes speak the truth. See Rush v. Rush, 97 Tenn. 279, 37 S.W. 13 (1896); McCown v. Quillin, 48 Tenn.App. 162, 344 S.W.2d 576 (1960); Hines v. Thompson, 25 Tenn.App. 86, 148 S.W.2d 376 (1940).

In Rush v. Rush, supra, this court affirmed the entry of a decree of divorce nunc pro tunc on the basis of a notation on the judge’s docket, where the decree was not entered or extended by the clerk on the minute or record book of the court. In doing so, the court stated:

“It is equally clear that a party whose rights are injuriously affected by a clerical omission to extend upon the record a judgment of the court regularly pronounced may present the matter to the court, and upon a proper showing have the judgment entered nunc pro tunc. All courts have the right, and it is their duty, to make their records speak the truth, and a court, therefore, in a proper case, of its own motion, may order a nunc pro tunc entry to be made; and no sound reason can be suggested why they should not exercise this right and discharge this duty upon the suggestion of one whose rights are impaired by the failure of the record to state the truth. And the lapse of time between the announcement of judgment and the making of this motion is of no importance. That which is important is that the proof be clear and convincing that the judgment which it is sought to have entered is the one pronounced in the cause.” (Emphasis supplied.)

In this case appellant averred that the trial judge heard evidence and granted the petition of Cornelius Gillis and Georgia Gillis to adopt appellant. He further averred that the failure to have the decree signed and entered on the minutes of the court was due to the inadvertence or oversight of the attorney or the clerk of the court. These averments, if proven by clear and convincing evidence, would justify the entry of the decree of adoption nunc pro tunc. Appellant having stated a claim, it follows that the trial judge was in error in dismissing appellant’s petition without affording appellant the opportunity to introduce evidence in support of his claim.

The decree of the Probate Court dismissing appellant’s petition is reversed. The cause is remanded for further proceedings. Costs incident to the appeal are adjudged against the appellees. Costs in the trial court will await the outcome of the action.

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


author: CARNEY, Presiding Judge.

text:
    William D. MARSHALL, Jr., Executor of Ward Mount, Complainant-Appellee, v. The FIRST NATIONAL BANK OF MEMPHIS, Executor of the Estate of Jentie W. Mount, Defendant-Appellee, and Mrs. Elnora Stone Mount, Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Nov. 18, 1975.
    Certiorari Denied by Supreme Court Feb. 23, 1976.
    Erich W. Merrill, Memphis, for appellant.
    Henry M. Beaty, Jr., Ira C. Denton, and William D. Marshall, Jr., Memphis, for ap-pellees.
   CARNEY, Presiding Judge.

Defendant below, Mrs. Elnora Stone Mount, surviving widow of Ward Mount, has, by writ of error, appealed from a decree of the Chancery Court which approved the final settlement of the Executor of Ward Mount, Honorable William D. Marshall, Jr., and denied the Appellant, Mrs. Elnora Stone Mount, permission to amend her answer so as to (1) except to the accounting by the Executor Marshall; and (2) to file a cross-complaint against the estate of Mrs. Jentie Mount.

Mrs. Jentie Mount was the aged mother of Ward Mount and thus the mother-in-law of Appellant Mrs. Elnora Stone Mount. Mrs. Jentie Mount was a beneficiary under the will of her son, Ward Mount, as was the Appellant Mrs. Elnora Stone Mount. Defendant-Appellee First National Bank is executor of Mrs. Jentie Mount.

The Chancellor held that the question was res judicata under a decree of the Chancery Court of date May 14, 1968. A detailed statement of the facts is in order.

Ward Mount died August 26, 1965. His mother, Mrs. Jentie Mount, was then, or shortly thereafter, confined to a nursing home in Shelby County, Tennessee. Mr. Mount left an estate of approximately $500,000 which, under his will, was to be divided in two parts. One-half was bequeathed to his wife, Mrs. Elnora Stone Mount, in fee simple.

The other one-half was bequeathed to his attorney and executor, William D. Marshall, Jr., as Testamentary Trustee, for the support of Ward Mount’s mother, Mrs. Jentie W. Mount, under the following provision:

“The trust provided for in paragraph II above is for the purpose of providing a comfortable living for my mother during her lifetime. I direct the Trustee pay to my mother or to others for her benefit whatever sums he deems appropriate to maintain her in the circumstances to which she is accustomed. All such payments shall be a full release to said Trustee and may be made out of corpus or income. Upon the death of my mother, I direct that the assets still remaining in the Trust Estate go to my wife outright.”

Shortly after the probate of the will, the Executor and Trustee William D. Marshall, Jr. filed a bill in Chancery Court in this cause seeking a construction of the will of Ward Mount averring that the Defendant Mrs. Elnora Stone Mount objected to the payment of any sums to the Defendant Mrs. Jentie W. Mount out of the trust estate. The Appellant Mrs. Elnora Stone Mount filed an answer in which she insisted that it was the intention of the testator that the trust funds be used for Mrs. Jentie W. Mount only in the event Mrs. Jentie W. Mount did not have sufficient funds of her own for living expenses and averring that, in fact, Mrs. Jentie W. Mount did have sufficient funds to pay her own expenses.

Honorable Henry Beaty, Jr., attorney of the Memphis Bar, as Conservator filed an answer for Mrs. Jentie Mount.

Honorable Eulyse M. Smith, attorney for Mrs. Elnora Stone Mount, was permitted to withdraw from the case. Mrs Elnora Stone Mount’s answer was also withdrawn. The Appellant Mrs. Elnora Stone Mount was allowed until May 3, 1968, within which to appear personally or by counsel upon penalty of a pro confesso being taken against her. She failed to appear and pro confesso was, in fact, entered against her.

The cause came on to be heard before the Chancellor on May 14, 1968, upon the original bill for construction of the will, the answer of the Conservator of Mrs. Jentie W. Mount, and the order Pro Confesso against Mrs. Elnora Stone Mount. From the decree of the Court we copy as follows:

“The Court further finds from the testimony of Henry M. Beaty, Jr., that Mrs. Jentie W. Mount has an estate of approximately $45,000.00 from which she receives an income of approximately $200.00 per month and her monthly expenses in Bright Glade Nursing Home amount to approximately $1,200.00 and that therefore, the estate of Mrs. Jentie W. Mount is not adequate from the income to support and maintain the said Mrs. Jentie W. Mount and that the said Mrs. Jentie W. Mount is entitled to receive support and maintenance from the trust created under the last will and testament of the said Ward Mount.
It further appearing to the Court upon application of Henry M. Beaty, Jr., Conservator herein, that the said Henry M. Beaty, Jr., has rendered valuable services as an attorney in this matter in protecting the rights of the said Mrs. Jentie W. Mount and that a reasonable attorney’s fee should be paid from the trust estate to the said Henry M. Beaty, Jr., under the provisions of the trust ‘to maintain her in the circumstances to which she is accustomed’ and that it is proper for the Trustee to pay a reasonable fee to the said Henry M. Beaty, Jr., for his services herein.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court, that this is a proper action for a construetion of the last will and testament of Ward Mount and complainant herein, did properly file this cause of action for a will construction.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court, that under the terms of the last will and testament of the said Ward Mount that said will provided for an equal division of the net estate of the said Ward Mount and that one-half of said net estate was payable immediately to the widow of the said Ward Mount, Elnora S. Mount and the remaining one-half was to be placed in trust with provisions for the Trustee to pay ‘whatever sums he deems appropriate to maintain her in the circumstances to which she is accustomed,’ and that said provision contemplates support for the said Mrs. Jentie W. Mount regardless of the personal estate which the said Mrs. Jentie W. Mount might have.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court, that the estate of Mrs. Jentie W. Mount is not sufficient to support and maintain her and that therefore, even if the will contemplated some discretion in the Trustee as to whether to pay such support or not that the Court determines that the estate of the said Mrs. Jentie W. Mount is not sufficient and that support should be paid for her from the trust estate.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court, that Henry M. Beaty, Jr., Conservator herein, has rendered valuable services as an attorney in this cause and that he should be paid a reasonable fee as such attorney from the trust estate in such sum or amount as the Trustee may deem proper. . . . ”

Mrs. Jentie W. Mount lived in the nursing home until her death on June 29, 1973. Defendant-Appellee First National Bank qualified as executor of the will of Mrs. Jentie W. Mount.

On September 17, 1973, the Executor and Trustee William D. Marshall, Jr. filed supplemental complaint averring the death of Mrs. Jentie W. Mount and, along with other relief, prayed that the Court approve his final accounting as Trustee for Mrs. Jentie W. Mount under the will of Ward Mount. Appellant Mrs. Elnora Mount, through her present attorney, Honorable Erich Merrill, filed answer calling for strict proof of all accountings by the Executor and Trustee. On February 25, 1974, a consent order was entered referring the matter of the Trustee’s final accounting to a Special Master. Mrs. Elnora Mount made motion orally for leave to amend her answer to the Executor’s amended bill and oral application to set aside the pro confesso entered against her of date May 14,1968. On April 2,1974, the Chancellor entered an order overruling said motions to amend. The order of April 2, 1974, is before this Court on this writ of error.

During the argument of this cause before this Court, it was stated by counsel that Mrs. Jentie Mount owned an unstated number of shares of stock in Proctor & Gamble Corporation which became very valuable after the death of her son, Mr. Ward Mount, and during the lifetime of Mrs. Jentie W. Mount.

The accounting by the Conservator is not in this record but it does appear that the Trustee has paid to the Conservator after the death of Mr. Mount approximately $150,000. The exact amount expended by the Conservator for the support of Mrs. Mount is not shown in the record but we understand from the attorneys that the Proctor & Gamble stock is worth nearly as much or maybe more than the total advanced by the trustee for the support of Mrs. Jentie W. Mount. Mrs. Elnora Stone Mount contends that it was unnecessary and improper for the Trustee, after the Proctor & Gamble stock increased in value, to make further payments out of the trust estate to the Conservator for the benefit of Mrs. Jentie W. Mount. Mrs. Elnora Mount insists that she, as the beneficiary of the trust in remainder, is entitled to amend her pleadings to seek the recovery of said funds from the Executor of the estate of Mrs. Jentie W. Mount though she does not seek any personal recovery against the Trustee.

Assignment of error No. I is that the Chancellor erred in denying the Appellant’s motion to amend her answer to the supplemental complaint and in denying the motion to file a cross-complaint against the estate of Mrs. Jentie Mount.

Assignment of error No. II is that it was error for the Chancellor to refuse to set aside the pro confesso entered against Mrs. Elnora Stone Mount in 1968 so far as it affected her rights to attack the payments made by the Trustee to the Conservator after Mrs. Jentie W. Mount had become financially able to maintain herself.

Appellant cites and relies upon the cases of White v. Kelton, (1921), 144 Tenn. 327, 232 S.W. 668; Chickamauga Trust v. Lonas, (1917), 139 Tenn. 228, 201 S.W. 777; Nashville Trust Co. v. Dake, (1931), 162 Tenn. 356, 36 S.W.2d 905; Hodges v. Hamblen County, (1925), 152 Tenn. 395, 277 S.W. 901; McClung v. City of Elizabethton, (1937), 171 Tenn. 455, 105 S.W.2d 95, 100. She insists that under the rationale of the cases above cited, His Honor the Chancellor had no jurisdiction to adjudicate remote, uncertain, and speculative questions and that the decision of His Honor the Chancellor in 1968 was only to the effect that Mrs. Jentie W. Mount’s estate was insufficient at that time to maintain her and that it was necessary for the Trustee to furnish trust funds to maintain her at that time.

The Appellant contends that the additional finding of the Chancellor that the will contemplated support for Mrs. Jentie W. Mount regardless of the personal estate of Mrs. Jentie W. Mount was speculative, void, and subject to collateral attack. In our opinion the cases cited and relied upon by the Appellant do not sustain her contentions.

The Chancery Court of Shelby County had exclusive jurisdiction to construe and enforce the provisions of Ward Mount’s will. Gibson’s Suits in Chancery, 5th Edition, Section 971. The Chancellor found that the will was subject to several interpretations and sustained the petition of the Executor-Trustee, William D. Marshall, Jr., as a proper suit for the construction of the will of Ward Mount.

The Chancellor construed the provision of the trust for the Trustee to pay “whatever sums he deems appropriate to maintain her in the circumstances to which she is accustomed” to require support for Mrs. Jentie Mount regardless of the personal estate which the said Mrs. Jentie Mount might have. The value of her estate was found to be $45,000 and the income therefrom insufficient to support Mrs. Jentie Mount.

The holding of the Chancellor that no part of Mrs. Jentie Mount’s estate was to be considered by the Trustee in supporting Mrs. Jentie Mount was neither speculative nor remote.

The Chancellor had jurisdiction of the parties and the subject matter. When his decree of May 14,1968, became final, it was binding on all of the parties even if it had been erroneous. Pile v. Pile, 134 Tenn. 370, 183 S.W. 1004; Jordan v. Johns, 168 Tenn. 525, 534, 79 S.W.2d 798; National Cordova Corp. v. City of Memphis, 214 Tenn. 371, 380 S.W.2d 793; Webb v. Schultz, 31 Tenn. App. 587, 218 S.W.2d 758.

We overrule the assignments of error for the reason that the decree of May 14, 1968, was res judicata.

A decree will be entered affirming the judgment of the lower Court and remanding the cause for further proceedings consistent with this opinion. The costs of this appeal are taxed against the Appellant and her surety. The costs in the lower Court will abide the judgment of the lower Court.

MATHERNE and NEARN, JJ., concur.


author: HENRY, Justice.

text:
    Ruth RICHARDS, Appellant, v. The LEWISBURG ALCOHOLIC BEVERAGE COMMISSION, Appellee.
    Supreme Court of Tennessee.
    Feb. 14, 1977.

      Charles W. Wade, Lewisburg, for appellant.
    Thurman Thompson, City Atty., Lewis-burg, for appellee.
   OPINION

HENRY, Justice.

This is an appeal from a judgment of the Chancery Court at Lewisburg suspending, appellant’s permit to operate a package store for the retail sale of beer, for one (1) year, on the basis of selling beer to minors.

We affirm the Chancellor in all respects.

I.

The evidence clearly establishes that appellant sold a quantity of beer to two young men, ages 17 and 16 respectively.

Chapter 2, Title 57, Tennessee Code Annotated (Sec. 57-201, et seq.) governs the sale of beer and light alcoholic beverages within the state. As we pointed out in Howard v. Willocks, 525 S.W.2d 132, 135 (Tenn.1975), there is a “very pronounced difference between the authority possessed by cities and counties”, with the former having vastly more authority. When § 57-205, T.C.A., relating to licenses and permits to sell “outside of town or city limits”, is read in conjunction with § 57-209, T.C.A. relating to revocation, this Chapter is broad enough to permit a county to revoke on the basis of a sale of beer to a minor. This necessarily follows from the fact that the former sections require that an applicant for a county permit “establish that no sale shall be made to minors”, and the latter provides for revocation, among other things, “for any violation of any provision of this chapter.”

This Chapter, however, contains no such condition precedent to the issuance of permits to sell within incorporated areas. § 57-204 requires a permit to sell in either the county or city. § 57-205 relates to counties only. The result is that this chapter does not forbid the sale of beer to minors by a retail beer outlet located within the corporate limits of a municipality.

However, § 57-208, T.C.A. authorizes municipalities

to pass proper ordinances governing the issuance and revocation of licenses [to sell beer] within the corporate limits . ., but cities and towns may impose additional restrictions [to include] such other rules and regulations as will promote public health, morals and safety as they may by ordinance provide.

This Court had held that Tennessee municipalities are given absolute discretion in the matter of regulation and control of the sale of beer. Howard v. Willocks, supra; Ketner, et al. v. Clabo, Mayor, et al., 189 Tenn. 260, 225 S.W.2d 54 (1949).

Since appellant tenders no assignment questioning the right of the City of Lewisburg to revoke a beer permit on the basis of a sale to a minor, we assume that the city has adopted an appropriate ordinance. This assumption is bolstered by the fact that the record shows that the “employee” making the sale was arrested, tried, convicted and fined in city court for selling beer to these two minors.

II.

Appellant complains that she was not given proper notice of the charges upon which revocation would be sought. We agree with this contention. The written notice read, in pertinent part, as follows:

You are hereby notified that on December 30, 1975 at 7:30 P.M. at the Lewis-burg Municipal Building, a hearing will be held by the Lewisburg Alcoholic Beverage Commission to determine if your permit to sell beer at Sudden Service Grocery should or should not be revoked.

The notice should have specified the ground for revocation; however, from this failure it does not follow that the subsequent action of the Chancellor was erroneous.

The appellant’s “employee” at Sudden Service, was also her husband. There can be no doubt that she knew he had been arrested for selling beer to these minors, and it did not require any undue strain on her mental processes to figure out the reasons for the revocation.

Moreover, the procedural safeguards relating to appellate review, all but obliterate the necessity for notice, as a practical proposition. The revocation of a beer permit is re viewable by the Circuit Judge or Chancellor under the statutory writ of certiorari with a trial de novo. See § 57-209, T.C.A.

In Cantrell v. DeKalb Co. Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964), this Court held “[a] ‘trial de novo’ as used in § 57-209 means the cause is tried as if it originated in the circuit or chancery court”, and

[t]he trial judge is required to make an independent judgment on the merits, which, . . . results in the trial judge substituting his judgment for that of the beer board; ....

We reaffirmed this holding in Lones v. Blount County Beer Board, 538 S.W.2d 386 (Tenn.1976).

Under this standard of review we cannot conceive of any prejudice arising from an inadequate notice.

III.

Appellant contends that revocation is limited to ten (10) days under the following portion of § 57-209, T.C.A.:

However, no permit or license shall be revoked on the grounds the operator or any person working for him sells beer to a minor over the age of eighteen (18) years if such minor exhibits an identification, false or otherwise indicating his age to be twenty-one (21) or over, if his appearance as to maturity is such that he might reasonably be presumed to be of such age and in unknown to such person making the sale. Provided further, that such license or permit may be suspended for a period not to exceed ten (10) days.

This statute was obviously intended to protect the operator of a retail beer outlet in those cases where identification cards were presented by prospective purchasers over the age of eighteen, if, but only if, their “appearance as to maturity” led the operator to believe that they had attained their majority.

This provision affords appellant no relief. Both of these young men were under eighteen years of age; they presented no identification cards; and they made no representations as to their ages. After seeing them and hearing them testify the Chancellor observed:

Just from looking at them you can tell that they are young kids. One of them said he was seventeen (17). I was surprised, I thought he was younger than that. The other one said he was sixteen (16).

The judgment of the Chancellor is

Affirmed.

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