text:
    Gerald A. REVELLE, Plaintiff-Appellant, v. MEHLVILLE SCHOOL DISTRICT R-9, a Public Corporation, Defendant-Appellant.
    Nos. 37617, 37618.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 31, 1978.

      William L. Davis, St. Louis, for plaintiff-appellant.
    George J. Bude, Clayton, for defendant-appellant.
   STEWART, Judge.

Plaintiff, a probationary school teacher, initiated this court tried action against defendant, public school district, for damages and for reinstatement after defendant did not offer him an employment contract for the succeeding year. The action is based upon an alleged breach of an employment contract. The trial court found that defendant had breached the employment contract and awarded plaintiff damages in the sum of $7,500.00. The court further found that plaintiff was not entitled to reinstatement with back pay. Plaintiff has appealed from that part of the judgment denying reinstatement. Defendant has appealed from that part of the judgment awarding damages to plaintiff. We affirm that portion of the judgment denying reinstatement and reverse that portion of the judgment awarding damages.

In the spring of 1973, plaintiff was completing his last year as a probationary teacher with defendant. He was assigned the position of guidance counselor at Mehl-ville High School.

Plaintiff and defendant executed the Mehlville School District R-9 Probationary Teacher’s Contract, which provided for employment of plaintiff commencing on August 30, 1972, and ending on June 8, 1973. The provisions of the Missouri Teacher Tenure Act, §§ 168.101 to 168.116, and the published Rules and Regulations of the Board of Education were made a part of the agreement, by reference.

On March 30,1973, plaintiff was given an informal evaluation by his superiors. The persons present were C. E. Stratton, Principal, J. H. Woods, Assistant Principal, who was deceased at the time of trial, and S. A. Shannon, Director of Teacher Personnel. After a brief discussion, plaintiff was given a copy of his Teacher Evaluation Summary.

The conclusion of the evaluation stated that “[cjompared to the rest of the counselors, Mr. Revelle is not doing the job, a situation which has apparently existed previous to this year. It is for this reason as well as others that a contract for the school year 1973-74 is not recommended.”

The evaluation form contained a space where the teacher could indicate that he desired a formal review of the evaluation. Plaintiff requested a review and in another space added, “I believe that I have received an unfair evaluation. I request a formal review, due to the fact that the evaluation procedure, as stated in the district policy manual, was not followed.” A review was had with Mr. Shannon and Mr. Stratton on April 4, 1973.

The School Board, on the evening of April 4, 1973, voted not to renew plaintiff’s contract for the 1973-1974 school year. Mr. Stratton, the Principal did not attend the Board meeting. On April 6, 1973, plaintiff received a letter from the Board of Education dated April 5, advising him that the Board would not hire him for the succeeding year. The letter gave no reason for the Board’s decision.

On May 16, 1973, plaintiff filed a Grievance Procedure Form, which is designated “Initiation of the Grievance Procedure.” Plaintiff alleged that the basis of the grievance was that his position with the school district was “terminated” because the school district had violated its policies 4117, 4118 and 4119.

The school district took the position that any grievable incident had occurred on March 30, and the grievance procedure was not commenced within 30 “teacher employment days,” thereafter and was not timely filed as required by the Grievance Procedures. For that reason the defendant refused to participate in the grievance proceeding. Plaintiff went through each step of the grievance procedure leading to an ex parte hearing before an arbitrator. The arbitrator confined his consideration to the Rules and Regulations of the Board without reference to the statutes and recommended that plaintiff be given a contract for the school year 1973-1974 with compensation from the beginning of the school year. The School Board, in keeping with its position, took no action with respect to the findings and recommendations of the arbitrator.

Plaintiff had not secured a teaching position at the time of trial. At that time he was employed by a restaurant operated by a corporation which he had organized and in which he had a substantial interest.

Our review is governed by Rule 73.01 subsection 3, the judgment of the trial court will not be set aside “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.1976).

Plaintiff’s Appeal

Plaintiff contends that:

“The court erred in failing to enter judgment of reinstatement in favor of plaintiff and against defendant for the reason that there was competent and substantial evidence of plaintiff’s right to be reinstated as a result of intentional violations and breaches by defendant of specific terms of plaintiff’s contract, specifically, Policies 4117, 4118, 4119 and the Grievance Procedure of the Mehlville School District.”

A brief review of the provisions of the policies relied upon is necessary to our discussion. Policy 4117 defines the term “District Probationary Teacher” as “ . . .a teacher whose evaluation falls below the minimum standards as required by the District.” The policy also describes the status of District Probationary Teachers and provides that they shall be given professional assistance to improve the quality of their teaching and that those who have not succeeded in meeting the standards shall be notified of that fact before April 15 of any school year.

Policy 4118, titled “Tenure,” provides that the regulations are intended to be in compliance with the Teacher Tenure Act, §§ 168.102 to 168.130 RSMo. and that if the regulations are in conflict with the Act, the Act will govern. 4118 defines the term “permanent teachers” as “Teachers who have been, or who will hereafter be, employed ‘full time’ in the District for five or more consecutive years . . . ” This definition parallels the definition in § 168.-104(4). This policy also defines probationary teachers essentially as defined in 168.-104(5), as teachers who have been with the district for five years or less.

Other subjects of 4118, as they relate to this cause concern the termination of the employment of permanent and probationary teachers. The two categories are treated separately. A “permanent teacher” may be terminated by the Board for numerous reasons set out in the policy but only after written notice and hearing. Permanent teachers may also request an appeal.

Of particular relevance to our consideration is that portion of 4118 designated “Grounds and Procedures for Termination by the Board of a Probationary Teacher.” This portion of the policies is essentially the same as § 168.126 subdivision 2.

Policy 4119 provides that separation from the professional staff shall be in accordance with the Teacher Tenure Act, §§ 168.102 to 168.130. It also states, “[I]n general, it is the policy of the District to give early notice to a teacher who is not working up to District standards and to make every attempt to assist such a teacher to improve the quality of his/her work.”

As we read plaintiff’s argument he contends that the Board policy statements of 4117 and 4119 accord to him the procedure set out in policy 4118 B under the heading “Grounds and Procedures For Termination by the Board of A Probationary Teacher” and under 168.126, subdivision 2 of the Teacher Tenure Act. He claims that, within the spirit of Policies 4117, 4118 and 4119, he should have been given 90 days after receipt of notification that his work was unsatisfactory in which to make the necessary improvement so that he could be retained on the professional staff.

Much the same contention was made in White v. Scott County School District No. R-V, 503 S.W.2d 35 (Mo.App.1973). That case dealt only with the interpretation of 168.126 and did not involve the question of policies and regulations. In White, the School Board declined to renew the contract of plaintiff, a probationary teacher, because her work was unsatisfactory and gave her notice on April 9, 1971. The Board did not afford plaintiff an opportunity to correct the alleged deficiencies within ninety (90) days as provided in § 168.126 subdivision 2. The court held that probationary teachers have no tenure, their contracts are for one school year. The provision relating to the ninety (90) day provision for correcting deficiencies applied only to “. . . the act of discharging or dismissing a probationary teacher ... by terminating the existing contract of present employment . . ” The ninety day period was not applicable to the determination of the School Board not to enter into a contract of employment with a probationary teacher in the succeeding school year.

That portion of 4118 which plaintiff seeks to invoke here is concerned only with the termination of existing contracts of employment, it does not speak to the issue of the School Board’s determination not to renew the contract of a probationary teacher.

It is clear from a reading of Policies 4118 and 4119 that it was not the intent of the School Board to modify or extend the rights of teachers with respect to employment and tenure beyond the limits of the Teacher Tenure Act §§ 168.102 to 168.130. Policy 4118 provided that the policy is intended to comply with the Teacher Tenure Act and any conflicts are to be resolved in favor of the statute. Policy 4119 specifically provides that separation from the professional staff “must proceed according to . . . the Teacher Tenure Act . .”

If the regulations could be read as restricting defendant’s power to refuse to renew the contract of a probationary teacher the regulations to that extent would be contrary to the statutory power vested in the school district and could not operate to infringe that power. Analogous to this situation, see Russell v. City of Raytown, 544 S.W.2d 48 (Mo.App.1976) and Loman v. Tharp, 542 S.W.2d 306 (Mo.App.1976).

Under the Teacher Tenure Act and the regulations, the defendant was under no obligation to retain plaintiff for the school year 1973-1974; the plaintiff was under no obligation to remain with the defendant for the succeeding school year. If the school does not wish to rehire the probationary teacher for the next school year its only obligation is to give the teacher notice of that fact “[o]n or before the fifteenth day of April, but not before April first .” § 168.126; White, supra at 36. The regulations of the School Board provided no greater rights to the teacher than did the statute. The School Board was in compliance with the statute when it notified plaintiff that he would not be given a contract for the school year 1973-1974. The trial court did not err in its determination that plaintiff was not entitled to be reinstated.

Defendant’s Appeal

Defendant appeals from that portion of the judgment in favor of plaintiff for breach of the contract of employment and the award of $7,500 in general damages. Defendant contends that there was no breach of the contract; if the contract was breached plaintiff suffered no compensable damages; that plaintiff had been fully paid under his contract of employment; and that there is no provision in the law for general damages upon the breach of a contract.

Primarily we must determine what action or inaction on the part of defendant it is contended constituted a breach of contract.

The trial court made the following interlocutory findings:

“[pjlaintiff’s contract with the District was valid and enforceable, and the Board could validly bind itself by contract to follow certain procedures or ‘policies’ designed to salvage faltering teachers by evaluating their work, notifying them of their deficiencies and assisting them to bring their work up to District standards and expectations. Here it was shown that the principal and other supervisors at plaintiff’s school for a substantial period before March 30, 1973 thought that he was not doing his job. Yet there is no evidence that they so informed him until after they decided that his contract would not be renewed. There is no evidence that they helped him in any way as the District by policies made a part of plaintiff’s contract had promised him.
“If those promises were a part of plaintiff’s contract — as we hold they were— and if they were breached — as the undisputed evidence discloses — then plaintiff is entitled to some remedy. We cannot reinstate him since he was never terminated but only non-renewed. White, supra. We could not force back into service a probationary teacher whom the Board regarded as incompetent, even if we had power to do so. Moreover, plaintiff has an adequate remedy by law by way of damages.”

The court thereafter held a hearing confined to the question of damages. After that hearing the court adopted its interlocutory findings and made additional findings. The pertinent portions read as follows:

“I find that there has been a breach of the contract as I have previously held and found, and I re-adopt all of my findings of fact and conclusions of law heretofore filed.
. The policy that was offered to the teachers and held out as a condition of the contract was possibly more misleading than if it had been in a flat contract, because it implied and required good faith and not just a mercantile promise. So I find that there is a breach of the condition of this man’s employment. Call it a contract if you wish.
“But the thing that occurs to me as a matter of law and upon which I can make finding is that there has been a very substantial damage or loss here when a man is put out of his job.”

Plaintiff in his brief argues that:

“The school district created a new category of teacher by policy 4117, a ‘district probationary teacher’. This apparently is a teacher whose evaluation falls below the minimum standards as required by the district.
“Presumably on March 30, 1973, as a result of the annual evaluation, the plaintiff would have been within that category. 4117 as stated would require the district to place such a teacher on district probationary status and give as much professional help as necessary to improve the quality of teaching and to advise and inform that teacher as to whether or not the kind of service he or she was rendering was of such quality that would meet the standards of the district.”
“When policies 4117 and 4119 are read together they can only be interpreted as creating a positive attitude or position of the school district with regard to salvaging teachers whose conduct or competence have slipped below ‘acceptable standards.’ ”

The fallacy of plaintiff’s position lies in the fact that defendant had the right to refuse to renew the contract without regard to plaintiff’s evaluation. While the principal advised plaintiff that he would not be recommended for retention because “he was not doing the job,” the determination with respect to renewal was the exclusive prerogative of the Board. The Board could act upon the recommendation of the administrators for the reasons given or for no reason. The letter which the Board sent to plaintiff gives no reason for its determination not to rehire plaintiff for the next school year.

Reading regulations 4117 and 4119 together as plaintiff asks, we note that the policy of the Board as set out in 4119 reads:

“In general, it is the policy of the District to give early notice to a teacher who is not working up to District standards and to make every attempt to assist such a teacher to improve the quality of his/her work.”

Of significance is the phrase “In general.” It has been said that “[T]he phrase ‘in general’ is not inflexible or absolute but carries with it the idea that under certain conditions there may be a variation from the standard without constituting a violation of the rule.” Woody v. South Carolina Power Co., 202 S.C. 73, 24 S.E.2d 121 (1943). The phrase has the connotation of “not imperative.” No absolute duty was placed upon defendant to counsel plaintiff before the Board could make the determination not to offer plaintiff a contract for the succeeding school year. If viewed as a promise, we are of the opinion that regulations 4117 and 4119 as incorporated into the contract are not sufficiently definite to enable a court to definitely measure the extent of the liability of the defendant and to determine the measure of damages in the event of a breach. See Ogilvie v. Ogilvie, 487 S.W.2d 40 (Mo.App.1972) where a promise to “aid and assist” in the payment of a promissory note was held to be too indefinite. In the case at hand there is no assur-anee that any amount of assistance and counseling to a deficient probationary teacher would result in his retention. No matter how proficient, he has no property right which entitles him to a contract for the succeeding year. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed. 548 (1972).

Plaintiff further argues that “[t]he most important policy which bound both plaintiff and defendant was 4118.” He argues that this procedure provided in that policy is applicable to both termination during an existing contract and the failure to renew a probationary teacher and that he was entitled to a 90 day period to display improvement satisfactory to the Board or to notice and a hearing before he was non-renewed. The pertinent portions of 4118 are set out in footnote 4, supra. What we have said with respect to 4118 in plaintiff’s appeal is equally applicable here. The portion of Section 4118 of the regulations which plaintiff would have us invoke is parallel with § 168.126(2) and refers only to termination of an existing contract. See White v. Scott County School District No. R-V, supra. We find no breach of contract by reason of any failure on the part of defendant to follow the provisions of section 4118 of the regulations.

We are in agreement with the trial court in its conclusion that the refusal of defendant to join in the grievance procedure was not a breach of the contract. The determination not to extend a contract to a probationary teacher is not grievable.

The only basis for plaintiff’s claim for damages as recognized by the trial court is plaintiff’s loss of employment. In the final analysis, where the regulations of a school board cannot be read so as to restrict the power of the board to refuse renewal of a probationary teacher, as we have previously said, the failure to renew, for whatever reason, cannot be the basis of a claim for damages.

We find that the trial court erred in rendering judgment for plaintiff for damages.

The judgment of the trial court denying plaintiff’s reinstatement is affirmed. The judgment of the trial court awarding damages to plaintiff is reversed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . A “probationary teacher” by statutory definition is “any teacher . . who has been employed full time in the same school district for five successive years or less.” § 168.104(5) RSMo.

      . Omitting formal parts, the letter read:
      “This is to advise you that the Board of Education, at its meeting held Wednesday evening, April 4, 1973, decided not to renew your contract for the school year 1973-74.”

      .Arbitration as provided in the procedures is merely advisory.

      . “ . . .
      B. Procedures:
      1. Should the board determine that a probationary teacher is “incompetent, insufficient or insubordinate in line of duty, is willfully or persistently violating or failing to obey laws and regulations, has been excessively or unreasonably absent from the performance of duties or is not doing satisfactory work, through its administrative representative, it shall give the teacher a written statement directly setting forth such determination and specifying the nature thereof. If improvement satisfactory to the Board has not been made within ninety (90) days after the teacher’s receipt of such notification, the Board may terminate the teacher’s employment at any time thereafter during or at the end of the school year, except that, any such teacher shall be notified of termination of employment no later than the 15th day of April that he will not be retained for the following school year.
      2. Should the grounds for termination be one of those listed grounds other than those in 1 above, ...”

      . “ . . .
      2. If in the opinion of the board of education any probationary teacher has been doing unsatisfactory “work, the board of education through its authorized administrative representative, shall provide the teacher with a written statement definitely setting forth his alleged incompetency and specifying the nature thereof, in order to furnish the teacher an opportunity to correct his fault and overcome his incompetency. If improvement satisfactory to the board of education has not been made within ninety days of the receipt of the notification, the board of education may terminate the employment of the probationary teacher immediately or at the end of the school year . . . ”

      . “But the thing that occurs to me as a matter of law and upon which I can make a finding is that there has been a very substantial damage or loss here when a man is put out of his job.”


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    Lavonne J. DRYSDALE, Plaintiff-Appellant, v. The CORNERSTONE BANK, Defendant-Respondent.
    No. 10256.
    Missouri Court of Appeals, Springfield District.
    Feb. 6, 1978.
    C. R. Rhoades, Pineville, for plaintiff-appellant.
    Abe R. Paul, Pineville, for defendant-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This case presents a question of priority between two creditors secured under Article 9 of the Uniform Commercial Code, codified in this State as §§ 400.9-101—9.-507, RSMo (1969) V.A.M.S. It stands tacitly admitted that priority depends on the order of perfection by filing. Specifically, the question is whether plaintiff or defendant (bank) is entitled to certain items of personalty acquired by the debtor after the bank’s financing statement was filed. The appeal is here upon an agreed statement of fact in lieu of a transcript as authorized by Rule 83.13. Therefore, and contrary to counsel’s assertion that our review is governed by Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976), the only question before this court is whether the trial court drew the proper legal conclusions from the facts stipulated. State ex rel. Ciba Pharmaceutical Products, Inc. v. State Tax Commission, 382 S.W.2d 645, 651[1] (Mo.banc 1964); Surface v. Ranger Ins. Co., 526 S.W.2d 44, 45[1] (Mo.App.1975). The trial court has held that the bank has a prior security interest in the property (except livestock) covered by the plaintiff’s security agreement. We affirm.

The agreed facts, summarized as material here, are that on October 27,1970, plaintiff and her husband agreed to sell a business known as Drysdale Ford Sales to Sam McA-dams and his wife (debtor). The business consisted of a retail automobile dealership and garage located in Southwest City, Missouri. Plaintiff agreed to sell the entire business, including all the shop equipment, supplies and stock of merchandise.

The debtor, then in possession of the business, sought and obtained financing from the bank. On October 27, the date of the agreement of sale, the bank filed a financing statement in the county recorder’s office. The financing statement recites: (1) the debtor’s name and address as: Sam S. McAdams, Jr., and Anna Belle McAdams, Southwest City, Missouri, DBA Drysdale Ford Sales; (2) the name of the secured party as: The Corner Stone Bank, Southwest City, Missouri; and (3) that the statement covers collateral described as: “[A]ll contents of Drysdale Ford Sales, Southwest City, Missouri, including all parts, all shop equiptment [sic], all supplies ... all funiture [sic], all tools and all stock of merchandise . . .” The financing statement is signed by McAdams and his wife as debtors and by Darrell Spillars, an officer of the bank, on behalf of the secured party.

On November 6 the debtor executed a note payable to the bank in the amount of $10,337.69. Contemporaneously he executed and signed a security agreement on a printed form. By the terms of the agreement the debtor granted the bank a security interest in collateral described as: “[A]ll contents of Drysdale Ford Sales, Southwest City, Missouri, including but not limited to the following, ... All Shop Equiptment [sic], All Tools, All Supplies, and all Furniture and Equiptment [sic].” The printed form then continues: “. . . together with all additions, accessions and substitutions thereto or therefor and all similar property hereafter acquired, hereinafter called ‘Collateral.’ ” (our emphasis). Plaintiff had knowledge of this security agreement but not of its contents.

On January 16, 1975, the plaintiff made a “personal loan” to the debtor in the amount of $1,200.00. This debt was evidenced by a promissory note. Contemporaneously, the debtor executed a security agreement granting the plaintiff a security interest in eight head of cattle and 26 items of personalty. All the personalty included in plaintiff’s security agreement can fairly be described, in the circumstances, as “equipment” within the meaning of § 400.9-109. Plaintiff’s security agreement was filed with the county recorder in lieu of a financing statement.

Thereafter the debtor defaulted in payment of both notes. The bank attempted to secure possession of all the debtor’s property (except the livestock) by placing its own lock on the accesses to the premises occupied by the debtor’s business. Plaintiff made demand upon the bank for the equipment described in her security agreement. Her demand was refused. This litigation, originally an action in replevin, was thereafter commenced.

With some exceptions not material here, the proper issues for determination on any appeal are those stated in the “points relied on” part of the appellant’s brief; questions not there presented will be considered abandoned. Pruellage v. DeSeaton Corp., 380 S.W.2d 403, 405[3] (Mo.1964); State ex rel. Beeler v. Raytown, 453 S.W.2d 672, 674[2] (Mo.App.1970). With the observation that Missouri is still operating under the 1962 version of the U.C.C., we confine ourselves strictly to the very points briefed. There are two. The first point is that the bank’s financing statement is “insufficient” and further “seriously misleading” within the meaning of § 400.9-402(5) because the collateral is described as the contents of Drysdale Ford Sales and, as stipulated, the debtor did business as McAdams Ford Sales from March 31, 1970, up to the date of default. The appellant phrases her contention thus: “[I]t is appellant’s contention that a financing statement describing property as under the name of one business, to-wit, Drysdale Ford Sales, does not give notice to prospective creditors of any security interest in properties acquired by a business known as McAdams Ford Sales.”

As we understand this argument, the appellant concedes that collateral may be described generically in a financing statement, although she misconceives the basis upon which this rule rests. The sufficiency of the description of collateral in a financing statement may become a judicial question, e. g., as when the description is too abstract or when the creditor is guilty of overreaching. It is the statute itself, however, which provides that a financing statement is sufficient if it “. . . contains a statement indicating the types, or describing the items, of collateral.” (our emphasis). § 400.9-402(1). Here, the bank’s financing statement describes “. . . all shop equiptment [sic] ... all furniture [and] all tools.” This is sufficient, we think, to cover the debtor’s equipment as “equipment” is defined by § 400.9-109(2).

Neither do we understand the appellant to contend that the collateral was physically moved, but if that is her point, it is sufficient to say that a change in the location of collateral does not, under the present law, require refiling or amendment of the financing statement, if the original statement was filed in the proper place. § 400.-9-401(3). The appellant has raised no question concerning the place at which the bank’s financing statement was filed. The appellant does not argue that either Drys-dale Ford Sales or McAdams Ford Sales were corporations. A change in a corporate debtor’s name or location may create questions concerning the efficiency of a financing statement as notice to subsequent creditors without knowledge, see e. g., Continental Oil Co. v. Citizens Trust & Sav. Bank, 397 Mich. 203, 244 N.W.2d 243 (1976), but no such question is presented on this appeal.

So, the substance of the appellant’s point is that because the description of the collateral contained the fictitious or assumed trade name “Drysdale Ford Sales” and the individual debtor later transacted business under another trade name, the bank’s financing statement was seriously misleading and ineffective to perfect its security interest. Such an argument might have merit if the bank’s financing statement had been filed under the debtor’s original trade name. In re Leichter, 471 F.2d 785 (2d Cir.1972). In our case, the bank’s financing statement was filed under the debtor’s true name, Sam S. McAdams, Jr., and Anna Belle McAdams, Southwest City, Missouri, DBA Drysdale Ford Sales. There was, therefore, in the jargon of commercial lawyers, a “true name filing in a DBA case,” which was effective to give notice of the bank’s security interest to potential creditors. In re Fowler, 407 F.Supp. 799, 802-803[4, 5] and n. 5 (W.D.Okl.1975); In re Platt, 257 F.Supp. 478, 482[7] (E.D.Pa.1966). Appellant’s first point is without merit.

The appellant further argues that the court erred in finding the bank was entitled to possession of items of personalty acquired by the debtor after October 27, 1970, because the bank’s financing statement did not acknowledge an intended security interest in after-acquired property and was, therefore, insufficient to perfect such security interest pursuant to § 400.9— 402.

With deference, counsel has mistaken the scheme and purpose of the Code. It is true, we suppose, that the Code does not require the use of two documents, a financing statement and a security agreement. So, as modern commentators note, there is no reason why a financing statement could not serve as a security agreement at least when accompanied by a note. R. Henson, Secured Transactions Under the Uniform Commercial Code § 3-9 (1973) [hereinafter cited as Henson]. As Professor Henson points out, however, the purpose of a financing statement is simply to give notice to the world that designated parties have entered into a secured transaction covering described collateral; the details must be learned from the parties, Henson § 4-5, and if after-acquired property is to be included as collateral, the security agreement is where that matter should be provided for. Henson § 3-10. Such is the case law interpreting the 1962 Code; the debtor’s intent to create a security interest in after-acquired property must be ascertained and judged by the language of the security agreement, not the financing statement. § 400.9-204(3); National Cash Register Company v. Firestone & Co., 346 Mass. 255, 191 N.E.2d 471, 473, 475[3][5] (1963); American Nat. B. & T. Co. v. Nat. Cash Register Co., 473 P.2d 234, 237-238[4] (Okl.1970); Henson § 3-10. Here, the language of the bank’s security agreement is manifestly sufficient to create a security interest in after-acquired property and appellant’s second point is likewise without merit.

For the reasons indicated, the judgment is affirmed.

All concur.

      . References to statutes and rules are to RSMo (1969) V.A.M.S. and V.A.M.R.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roosevelt Willie JAMES, Defendant-Appellant.
    No. 10704.
    Missouri Court of Appeals, Springfield District.
    Feb. 6, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James A. DeReign, DeReign & DeReign, Caruthersville, for defendant-appellant.
    Before BILLINGS, C. J„ and HOGAN and TITUS, JJ.
   TITUS, Judge.

Roosevelt Willie James was jury-convicted of second degree burglary and stealing “soda pop” from a laundromat in Hayti, Missouri. Having been charged under the habitual criminal act, defendant was court-sentenced to consecutive prison terms of five years for burglary and two years for stealing.

Following arrest, defendant was said to have numerously initialed and twice-signed a bipartite “Voluntary Statement.” The first section consisted of a printed form which detailed defendant’s Miranda rights and his signed waiver thereof; the second segment was a six page confession of having committed the offenses of burglary and stealing with no mention of car theft. At the hearing on defendant’s motion to suppress the statement, defendant testified that albeit two police officers threatened him with additional prosecution for auto theft if he did not sign the “Voluntary Statement,” he refused to do so and, in fact, had never signed nor initialed the statement. The officers recounted that defendant had indeed initialed and signed the statement without any threats or promises having been made, and the officer who actually prepared the statement-confession subsequently testified that he did not know at the time that any possible car theft charge was involved. The motion to suppress was “overruled and denied.”

Including defendant’s confession, the state’s trial-evidence showed the following. J. T. “Heavy” Ellis, Jr., owned a “deuce- and-a-quarter Buick,” i. e., a series 225. On the night in question and while Heavy was comatose from over-imbibing, defendant purloined the keys to the Buick and, together with Elzo Walker, drove to the laundromat. Elzo broke the padlock on the laundromat’s storage room door and was required to also kick it open upon finding the door doublelocked. This accomplished, defendant and Elzo each helped themselves to three cases of soda which they placed in the Buick ere departing for the Tin Top. Upon arrival, Elzo sold his cases to “Skin” while defendant was secreting his in nearby weeds. Thereafter, defendant and one L. C. “Blue Foot” Parker returned to the laundromat and relieved it of additional soda. They then sold “a couple” of cases at the Soul Shack to the in-resident proprietor, Sylvester “Slim” Pearson, for $3 cash and a $1 pint of wine. An hour later defendant and Blue Foot returned to the Soul Shack but were unsuccessful in making a second soda sale to Slim. In the interim, Heavy effected a recovery of sorts, discovered and reported to the police that his Buick was missing. Robert Bird informed Heavy of his sighting of the Buick at the Soul Shack and they proceeded to that establishment arriving coincidentally with defendant’s and Blue Foot’s second effort at selling soda. Espying Heavy and Bird, defendant and Blue Foot took leave. Heavy repossessed the Buick, drove it to the police station and surrendered the cases of soda which reposed therein.

Defendant took the witness stand twice.

The first time, and in substance, defendant declared absolute innocence. Defendant stated the police represented that Elzo had confessed, implicating him, and should he refuse to sign the confession he would be additionally charged with stealing Heavy’s car. Contrary to defendant’s testimony on the motion to suppress the statement wherein he denied signing it, defendant testified he signed the confession in response to the threat through fright and not because the statement was true. Defendant swore he had not been with Elzo at the laundromat, denied having gone to the Soul Shack on the night in question and insisted that Heavy had not seen him with the Buick. The defense rested.

While the court was in recess as instructions were being discussed and prepared, a most novel thing occurred. Defendant insisted on retaking the witness stand to recant his previous testimony. In spite of extensive cautioning, admonishing and explaining by counsel and court as to the possible consequences which could result from this intended course, defendant remained adamant and the jury was recalled. With the exception of defendant’s insistence that he had only acted as lookout for the others and had not physically entered the laundromat, defendant’s testimony during his second sojourn to the witness stand corroborated in all major respects the evidence given by the state’s witnesses and contained in the confession, including an admission that he had taken Heavy’s car without permission. Defendant’s excuse for not having so testified the first time was that “I was scared. I hadn’t never been on the witness stand before.” When asked by the prosecutor: “So then your statement [confession] here to the officer was true?” defendant answered, “Yes, sir.”

The “Points Relied Upon” by defendant in this appeal read: “The trial court committed error in overruling defendant’s motion to suppress and defendant’s objection to the intruduction (sic) of defendant’s statement [confession], where evidence was presented of a second offense at the time a confession was taken on the primary offense, and where there was conflicting testimony as to the use of the second offense as leverage in obtaining the confession, for the following reasons: (A) Although police officers were aware of the second offense, but denied threatening to charge the defendant with it to induce a statement, the implication was present that the police had the device and ability to improperly influence the defendant, which he alleges they did.”

It is difficult to comprehend defendant’s “points.” The three authorities given in support thereof, two of which are miscited, are not helpful because they are not germane. By deciphering, we believe defendant is trying to say this: Because evidence of car theft was presented at the time the confession to burglary and stealing was obtained and because the testimony conflicted as to whether the car theft charge was employed to extract the confession, an implication arose that the police possessed the device and ability to improperly influence defendant to make the confession, as defendant said they did.

Several things appear wrong with the “points.” First, it is assumed as a fact that the threat of a car theft charge was used to obtain the confession. This erroneous assumption ignores the denial by the officers that any threats were made. The trial court’s obvious finding that the confession was voluntary and not induced by threats must stand, as defendant in this court may not insist that his testimony be accepted and the evidence of the state be wholly ignored. State v. Garrett, 510 S.W.2d 853, 855 (Mo.App.1974). Where the testimony, as here, conflicts as to the volun-tariness vel non of the confession, its admission into evidence by the trial court is a matter of discretion. The evidence adduced at the hearing on the motion to suppress clearly supports the conclusion that defendant’s confession was voluntary and, therefore, admissible. State v. Blankenship, 526 S.W.2d 78, 82[6, 7] (Mo.App.1975).

Another error in the “points” is the utter disregard of the fact that upon defendant’s second appearance at trial he confirmed all the principal aspects of the state’s evidence and acknowledged that his confession to the officers was true. To assert that this development created an unprecedented circumstance would be sheer hyperbole. Unsurprisingly, no reported opinion has surfaced which parallels the situation produced by defendant’s in-court confession. But a resort to analogy leads to the principle that where a guilty plea is understandingly and voluntarily made, a subsequent claim that a prior confession was judicially inadmissible affords no basis for post-conviction relief under Rule 27.26, V.A.M.R. McClure v. State, 470 S.W.2d 548, 556-557[4] (Mo.1971); Floyd v. State, 518 S.W.2d 700, 703[8] (Mo.App.1975). Thus, by comparison, when defendant took the stand the second time of his own choice and insistence and confessed to all of the material elements of the crimes charged and admitted the contents of his confession were true, defendant’s previous and present complaints anent the confession were vitiated. Otherwise put, when defendant confirmed to the jury his participation in the crimes charged and the truthfulness of his confession to the police, it would be amiss for us to undertake vindication of defendant via grounds raised on appeal which were negated and obliterated by the defendant’s sworn court testimony.

The judgment is affirmed.

All concur.


author: BROCK, Justice.

text:
    Charlie GIBSON et al., Appellants, v. Elvyn Edward FERGUSON, Appellee.
    Supreme Court of Tennessee.
    Aug. 30, 1976.
    James M. Glasgow, Elam, Glasgow, Tanner & Aeree, Union City, for appellants.
    William J. Stricklin, Union City, for ap-pellee.
   OPINION

BROCK, Justice.

The Beer Board of Obion County appeals from the decree of the Chancery Court which granted to the appellee his application for a beer permit. The appellant Board argues that the Chancellor erred in sustaining objection to the introduction of testimony to the effect that rowdiness, “drinking,” and, perhaps, unlawful activity was already occurring in the general neighborhood of the proposed location of the appellee’s beer establishment. Since the offered testimony in no way related to the operation of the appellee’s business, which had not begun, we think it clear that such testimony was immaterial to any issue in this cause and was properly excluded by the Chancellor. The testimony in question primarily consisted of the expression of the fears, speculations and apprehensions of the witnesses who appeared to have a fixed opinion that the sale of beer is harmful and immoral per se. Such expressions are not material in a case of this kind. Ewin v. Richardson, 217 Tenn. 534, 399 S.W.2d 318 (1966).

At the hearing, it was shown that the appellee in 1969 was found guilty of “rolling high dice for a Coke” and assessed a fine of $5.00. It was also shown that the appellee, a commercial fisherman, was fined $25.00 in 1970 for “failing to immediately release” 17 bluegill fish. The appellant Board asserts that these two infractions of the law show that the appellee has been convicted of a “crime involving moral turpitude” within the past 10 years which under paragraph 5 of T.C.A. § 57-205 disqualifies him from holding a beer permit. It is unfortunate that the legislature used the language, “crime involving moral turpitude,” for it has no satisfactory definition. The phrase is so inexact in meaning that this Court in State v. Morgan, 541 S.W.2d 385 (1976) abandoned its use as a criterion for determining which convictions may be inquired of a witness in order to affect his credibility. It has been said that the term moral turpitude refers to an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man or to society in general, contrary to the accepted rule of right and duty between man and man. Brooks v. State, 187 Tenn. 67, 213 S.W.2d 7 (1948). In any event, we have no hesitation in holding that neither “rolling high dice for a Coke” nor “failing to immediately release” 17 bluegills constitutes a “crime involving moral turpitude” within the meaning of the beer permit law.

The proposed location of the appellee’s place of business is on Tennessee Highway # 22 approximately 9 miles west of Union City, Tennessee. The surrounding area is rural, although there are two residences nearby and a church about .6 of a mile west of the premises. The building is situated on approximately 3 acres of land which fronts 328 feet on the highway and to which access is gained through a 48 foot driveway. From a point directly in front of the appel-lee’s building, an unobstructed view is afforded for a distance of .9 of a mile toward the west and for .2 of a mile toward the east. Appellee’s building is situated 85 feet back from the near edge of the highway. The appellee testified that he met all of the requirements set forth in T.C.A. § 57-205 for a permit to sell beer outside of the town or city limits.

Sgt. Kilpatrick of the Tennessee Highway Patrol, called as a witness by the appellant Board, testified that in his opinion the sale of beer at appellee’s proposed location would create a traffic hazard. The Chancellor found from all the evidence that the appellee had proven that he met all of the requirements established by T.C.A. § 57-205.

The decree of a trial court granting or denying a beer permit comes to this Court accompanied by a presumption of correctness and the burden is on the appellant to show that the evidence preponderates against the judgment of the trial court. Adams v. Monroe County Quarterly Court, 214 Tenn. 270, 379 S.W.2d 769, 771 (1964); Cantrell v. DeKalb County Beer Board, 213 Tenn. 568, 376 S.W.2d 480 (1964). Having reviewed the record, we are satisfied that the evidence supports the findings and decree of the Chancellor. Appellant places great reliance upon the testimony of Sgt. Kilpatrick that in his opinion appellee’s proposed business would create a traffic hazard, but, in our view, this opinion testimony — although not contradicted by an opposing contrary opinion — is not conclusive. Expert opinions, at least when dealing with highly complicated and scientific matters, are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are purely advisory in character and the trier of facts may place whatever weight it chooses upon such testimony and may reject it, if it finds that it is inconsistent with the facts in the ease or otherwise unreasonable. Even in those instances in which no opposing expert evidence is offered, the trier of facts is still bound to decide the issue upon its own fair judgment, assisted by the expert testimony. Act-O-Lane Gas Service Co. v. Hall, 35 Tenn.App. 500, 248 S.W.2d 398 (1951). In our view, this is especially true when the opinion, as in this case, amounts to no more than prediction and speculation. The record contains other evidence, including photographs of the highway and plaintiff’s proposed place of business, from which the Chancellor could make a finding contrary to the opinion expressed by the Sergeant. Accordingly, the appellant has failed to carry the burden of showing in this Court that the evidence preponderates against the findings and decree of the Chancellor.

The decree of the Chancery Court is affirmed and costs will be paid by the appellants.

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


author: HARBISON, Justice. FONES, Justice, HARBISON, Justice.

text:
    Polly LEE et al., Appellants, v. William T. HALE, Executor, Appellee.
    Supreme Court of Tennessee.
    Jan. 30, 1978.
    Rehearing Denied March 13, 1978.
    Clinton R. Anderson, Anderson & Anderson, Morristown, for appellants.
    H. Scott Reams, Taylor, Tilson, Inman, Reams & Lawson, Morristown, for appellee.
   OPINION

HARBISON, Justice.

This case involves the construction and interpretation of the will of Helen D. Parkinson, deceased.

Administration of the estate was transferred to the Chancery Court of Hamblen County, Tennessee, where, among other things, the Executor sought a construction of language in the will bequeathing personal possessions to the Brookshire and Parkinson families. Specifically the issue was whether cash in bank accounts owned by the decedent passed under this bequest.

The parties on appeal are two nonprofit organizations, beneficiaries under a general residuary clause, and the members of the two families named. The Chancellor held that the bank accounts passed to the members of these families.

The relevant sections of the will are as follows:

“SECTION II
I hereby declare that the following specific bequests and devises be made out of my estate:
A. I hereby give devise and bequeath the sum of $1,000.00 unto MRS. POLLY LEE, of Russellville, Tennessee.
B. I hereby give, devise and bequeath the sum of $1,000.00 unto MIKE LEE, of Russellville, Tennessee.
C. I hereby give, devise and bequeath the sum of $1,000.00 unto FRANKLIN DRAPER, of Whitesburg, Tennessee.
D. I hereby give, devise and bequeath the sum of $1,000.00 and my antique bread tray unto JOYCE DRAPER of Whitesburg, Tennessee.
E. I hereby give, devise and bequeath the sum of $500.00 unto AILEEN W. EDWARDS, of Riceville, Tennessee.
F. I hereby give, devise and bequeath the sum of $500.00 unto LOU ELLA McMAHAN, of 1023 Pine Mountain Road, Forest Park, Georgia.
G. I hereby give, devise and bequeath the sum of $500.00 unto MRS. TRASIE CATE and her daughter, HAZEL.
H. I hereby give, devise and bequeath my bedroom suite unto MR. VERNON HAUN and his wife, of Whitesburg, Tennessee.
I. I hereby give, devise and bequeath my organ unto MRS. ERNEST HAMPTON, of Trenton Kentucky.
J. I hereby give, devise and bequeath my clock and coffee mill unto MRS. HARVEY HUGHES, of Trenton, Kentucky.
K.I hereby give, devise and bequeath my dresser unto LANE PARKINSON, of Windswept Lane, Kingston, Tennessee.
After the above specific bequests and devises have been made, the BROOK-SHIRE and PARKINSON families may have any other of my personal possessions which may be left.
SECTION III
If my estate should not contain sufficient monies for the above specific bequests, then I empower my Executor to sell all the real and personal property which I may own at my death in order to obtain such money. However, he shall not have the power to sell those specific items of personality which I have heretofore bequeathed. If there be sufficient monies to permit the the (sic) specific bequests, I empower my Executor to sell all of my remaining property, both personal and real, and to liquidate my estate. (Emphasis supplied.)
Section IV
I hereby, give, devise and bequeath the residue and remainder of my estate to the HAMBLEN COUNTY CHAPTER OF THE AMERICAN RED CROSS and THE HAMBLEN COUNTY RESCUE SQUAD to be divided equally as both organizations are for a worthwhile purpose and are of benefit to a large number of people.”

There were two codicils to the will, one of which changed the bequest of the organ contained in paragraph I to Walter W. Brookshire and the second added five hundred dollars ($500.00) to the bequest to Mrs. Harvey Hughes of Trenton, Kentucky, in addition to the clock and coffee mill given to her. The second codicil also changed the alternate executor, but otherwise confirmed the terms and provisions of the principal will.

A brief stipulation filed by the parties shows that some of the beneficiaries named in the bequests in Section II are members of the Parkinson family and the Brookshire family, but there are other members of these families who are not mentioned in the specific bequests. The relationship of the testatrix to these families does not appear in the record. The members of these two families were permitted to select and have “any other personal possessions” of testatrix. The will says they “may have” these; it does not mandate any distribution but is purely permissive in its terms.

The stipulation says that the estate included real estate and money in bank accounts. The original complaint describes certain real property as consisting of 36.30 acres, and in oral argument the Court was told that the amount in bank accounts held by testatrix at the time of her death was a large sum, consisting of about fifty thousand dollars.

The Chancellor held that it was the intention of the testatrix to include her bank accounts and money in the bequest to the Brookshire and Parkinson families. In his memorandum opinion he stated:

“Her intention appears so evidenced because she made seven bequests of money, and four of other personalty, and then provided ‘ . . . other of my personal possessions to . . . .’ Clearly, she considered her money as personal possessions because she referred to it as such.”

The Chancellor relied heavily on the ease of Travis v. Randolph, 172 Tenn. 396, 112 S.W.2d 835 (1938), where it was held that the word “belongings” included money. The Chancellor felt that the words “personal possessions” in the present will were broader than the word “belongings” in the Travis case.

In Travis, however, the testatrix had no other residuary clause except the one referring to “all other belongings”, and the Court was faced with the alternative of permitting bank accounts to pass under that language or leaving the decedent partially intestate.

There is no such problem in the present case, because the provisions of Section IV are clearly a general residuary clause, disposing of all assets which had not otherwise been bequeathed. Not mentioned by the Chancellor or referred to in the briefs of the parties are the provisions of Section III of the will which deals in some detail with money belonging to the testatrix. This section seems to be important in the testamentary scheme. The first section of the will provided generally for payment of debts and funeral expenses out of the principal of the estate. Section II, as amended by codicils, made specific bequests and then general authorization for the family members to have “any other of my personal possessions which may be left.” Section III then dealt in detail with the bank accounts of the testatrix, and this was followed by a general residuary clause in Section IV leaving the residue of the estate to the named charities. The language of this residuary clause is mandatory, not permissive like the last sentence of Section II.

From this testamentary scheme it appears that the beneficiaries named in Section II were the first but also the specifically limited objects of the bounty of the testatrix. She directed the sale of other personal property than that specifically bequeathed or even of her real estate to pay the monetary bequests contained in Section II if her bank accounts were insufficient. If these accounts were sufficient, however, she then directed that all of the rest of her property could be sold and converted to cash, including her real estate, and all of this remainder passed under Section IV, subject to the family members having any “personal possessions” which they wished.

While admittedly the provisions of the will are not clear, we do not believe that the testatrix merely intended to devise her real estate to the charities named in Section IV and her entire personal estate to the persons named in Section II as held by the Chancellor and as contended by the members of the two families involved. No such intention appears. The entire estate was to be, or could be, liquidated and converted into cash except those specific items of personalty bequeathed in Section II and “any other of my personal possessions which may be left”, these latter to go to the family members if they wanted them.

Under these circumstances it seems to us that the terms “personal possessions” used in the last portion of Section II had reference to tangible personal belongings of the testatrix, and not to her bank accounts. She gave specific sums of money to eight persons, but otherwise did not refer to money in Section II. She did refer to it in Section III and was quite concerned, apparently, as to whether her funds would be sufficient to meet the specific bequests listed in the previous section. She made special provisions if they were not. If the funds were sufficient, however, it does not appear to us that she intended for the surplus to pass under Section II but rather under the general residuary provisions of Section IV immediately following.

Since the testatrix so carefully spelled out the amount of money which she wished to go to particular members of the Parkinson and Brookshire families, as well as to other named individuals, and since she delineated and gave special treatment to certain items of personal property, then authorized everything else to be sold and converted into cash except “any other of my personal possessions which may be left”, we are of the opinion that the latter phrase had reference to items of tangible personal property in and about the farm and home of the testatrix, and not to her cash in banks.

Accordingly the decree of the Chancellor is reversed and the cause is remanded for further proceedings, at the cost of appel-lees.

COOPER and BROCK, JJ., concur.

FONES, J., and HENRY, C. J., dissent.

FONES, Justice,

dissenting.

I respectfully dissent.

It is elementary that a general residuary clause embraces only those assets of the estate that remain undisposed of by the remainder of the will. See Travis v. Randolph, supra.

Conceding that the residuary clause in Section IV of the will is not restricted to real property sheds no light on the issue presented here, to it, the testatrix’s intent to include cash in bequeathing to the Brook-shire and Parkinson families “any other of my personal possessions which may be left.”

It may also be observed that the residuary clause uses only the words “the residue and remainder of my estate,” and does not expressly designate real and personal property as included therein. If testatrix intended the last section in Section II of her will to be a residuary clause, as I believe she did, disposing all her personal assets remaining after satisfying the specific bequests of cash and furniture in paragraph eight of that section, the language of the residuary clause in Section IV would not preclude such an interpretation.

I agree with the learned Chancellor’s conclusion that Mrs. Parkinson intended to dispose of all of her personal estate, including money “which may be left,” after satisfying the seven specific bequests of cash and the five bequests of specific items of household furnishings.

The entire last paragraph of Section II of the will and each word thereof must be given its usual and natural meaning, rather than focusing only on the words “personal possessions,” as appellant’s advocacy does.

The testatrix said, after payment of the above specific bequests and devises, the Brookshire and Parkinson families may have “any other of my personal possessions which may be left.” The fact that the specific bequests were of both cash and selected items of household furniture places added significance on the words “any other . . which may be left,” to wit: any other money and furniture and similar property left after payment and delivery of specific bequests.

I would affirm the decree of the trial court.

HENRY, C. J., concurs in the dissent.

OPINION ON PETITION TO REHEAR

HARBISON, Justice.

Insofar as the merits of this case are concerned, the majority of the Court adhere to the views expressed in the original opinion, and the petition for rehearing is denied.

The Court is of the opinion, however, that the petition for rehearing does have merit insofar as the taxation of costs is concerned, and upon reconsideration, the petition to rehear will be granted as to that aspect of the case, and all costs will be taxed to the estate of Helen D. Parkinson.

The issue of an award of fees to counsel for appellees has not previously been raised on appeal in this case, but upon remand, the Chancellor may hear such evidence and make such determination with respect thereto as, in his discretion, he deems appropriate.

COOPER and BROCK, JJ., concur.

HENRY, C. J., and FONES, J., dissent.


author: FONES, Justice.

text:
    Joseph R. HYDE, III, Appellant, v. Eleanor Lentz HYDE, Appellee, W. K. West, Jr., Divorce Referee, of Shelby County, Tennessee, Appellant.
    Supreme Court of Tennessee.
    Feb. 13, 1978.

      Lucius E. Burch, Jr., Burch, Porter & Johnson, Memphis, for plaintiff.
    W. K. West, Jr., Memphis, Divorce Referee of Shelby County, Tenn., for appellant.
   OPINION

FONES, Justice.

Appellant, Divorce Referee of Shelby County, appeals from a declaratory judgment validating, “for reasons of equity and comity”, a divorce awarded by a court in the Dominican Republic.

On November 21, 1974, Eleanor Lentz Hyde was awarded a decree of divorce by the Court of First Instance of the Judicial District of Santo Domingo, Dominican Republic. She appeared in person and was represented by an attorney. Joseph R. Hyde, III, was not personally present but was represented by his attorney in fact, by virtue of a power of attorney filed with the Court. These appearances fully satisfied the laws of the Dominican Republic with respect to jurisdiction of divorce actions. The divorce was granted on the ground of incompatibility of temperaments, making life together unbearable. Both parties to the marriage are residents of Memphis, and were residents of Memphis at the time of the divorce.

Joseph Hyde filed this suit in the Chancery Court of Shelby County on November 4, 1976, seeking a declaratory judgment that the Dominican Republic decree was valid, or in the alternative, seeking a divorce. He alleged that prior to October, 1974, the parties were preparing to file suit against each other in the courts of Shelby County, Tennessee, but they effected an agreement settling their property rights and providing for the support of their minor child; that they were then confronted by the prospect of an extensive delay before a divorce could be obtained due to the backlog of divorce cases in Shelby County. Being desirous of returning to the status of unmarried people, after an investigation, both parties submitted to the jurisdiction of the Dominican Republic court and obtained a no fault divorce, believed in good faith to be valid.

Eleanor Lentz Hyde answered, admitting those allegations and insisting that comity be granted the foreign decree, but in the alternative, also counterclaiming for divorce. Thus, in the Tennessee courts, both parties assert the validity of the foreign decree, neither raises any question as to the jurisdiction of the Dominican Republic court over the parties or the subject matter for the purpose of the 1974 proceeding, and they continue to assert that each is bound by the 1974 property settlement agreement. The Divorce Referee appeared in the action to contest the validity of the Dominican Republic decree. The Chancellor granted summary judgment for plaintiff in the declaratory judgment action, and the Divorce Referee perfected a direct appeal to this Court.

Because the decree for which recognition is sought is that of a foreign nation, the sole question here is whether Tennessee will grant comity to the divorce. We have not found any case in which Tennessee courts have considered the question of what effect, should be given a judicial decree from a foreign nation, but the courts of this state have recognized the doctrine of comity in cases where the rights of parties under the laws of other states were at issue, and recognition was not obligatory under the Full Faith and Credit Clause. See Paper Products Co. v. Doggrell, 195 Tenn. 581, 261 S.W.2d 127 (1953); Phillips v. Johns-Man- ville Sales Corp., 183 Tenn. 266, 191 S.W.2d 554 (1946); Finley v. Brown, 122 Tenn. 316, 123 S.W. 359 (1909); Lewis v. Woodfolk, 61 Tenn. 25 (1872); Lisenbee v. Holt, 33 Tenn. 42 (1853).

The rule of comity to be gleaned from these cases is that, where the law of another jurisdiction is applicable, Tennessee will enforce the substantive rights which litigants have under the laws of the other jurisdiction if such rights are not contrary to the policy of Tennessee. Id.

Resting as it does on the non-obligatory discretion of the forum, comity defies both precise definition and uniform rules of practice. The oft-cited case of Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895), which contains a thorough examination of the basic principles of comity, defines it as follows:

“ ‘Comity,’ in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.
[SJpeaking of the difficulty of applying the positive rules laid down by the Continental jurists, . . . [Mr. Justice Story] says that ‘there is indeed, great truth’ in these remarks of Mr. Justice Porter, speaking for the supreme court of Louisiana: ‘They have attempted to go too far, to define and fix that which cannot, in the nature of things, be defined and fixed. They seem to have forgotten that they wrote on a question which touched the comity of nations, and that that comity is, and ever must be, uncertain; that it must necessarily depend on a variety of circumstances which cannot be reduced to any certain rule; that no nation will suffer the laws of another to interfere with her own to the injury of her citizens’ that whether they do or not must depend on the condition of the country in which the foreign law is sought to be enforced, the particular nature of her legislation, her policy, and the character of her institutions; that in the conflict of laws it must often be a matter of doubt which should prevail . . ’” (citation omitted). 159 U.S. at 163-165, 16 S.Ct. at 143, 40 L.Ed. at 108-09.

Thus, comity is a discretionary doctrine and may be granted or withheld depending on the particular facts, laws and policies present in an individual case.

In this case, the public policy of this state as reflected by its grounds and jurisdictional requirements for divorce are the issues to be examined in determining the propriety of granting comity.

The majority of states do not grant comity to divorces rendered in foreign jurisdictions where neither spouse was actually domiciled, even where both parties voluntarily submitted to the jurisdiction of the rendering court. See Annotation, 13 A.L.R.3d 1419 (1967).

New York, on the other hand, recognizes foreign divorce decrees valid under the laws of the nation rendering them where the plaintiff spouse appeared personally and the defendant spouse voluntarily appeared through attorney, even though neither party was domiciled there in the Anglo-American legal sense, and the grounds on which the foreign divorce was granted were not recognized in New York. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965). Granting comity in the instant case will not require that we go as far from the majority rule as the New York courts have gone.

The public policy of a state is to be found in its constitution, its statutes, and the decisions of its courts. Primarily, it is for the legislature to determine the public policy of the state, and if there is a statute that addresses the subject in question, the policy reflected therein must prevail. United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897); Thome v. Macken, 58 Cal.App.2d 76, 136 P.2d 116 (1943); see Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S.Ct. 476, 75 L.Ed. 1112 (1931).

The Tennessee legislature has authorized the granting of divorces on the ground of irreconcilable differences if the parties have, by written agreement, made provisions for the custody and maintenance of any children of the marriage and an equitable settlement of their property rights. Public Acts 1977, Chapter 107. The record in this case reflects compliance with these conditions and the incorporation of the settlement agreement of October 31,1974, into the decree of divorce. Appellant suggests no distinction between the ground of irreconcilable differences and that of incompatibility of temperaments making life together unbearable, and in our opinion they are substantially equivalent. Thus, the grounds upon which the Dominican Republic decree was awarded cannot be said to be offensive to the public policy of Tennessee.

In addition to New York, a court in Connecticut has granted comity to a Mexican divorce obtained under factual circumstances legally indistinguishable from the instant case. On the question of the public policy considerations arising from Connecticut’s grounds for divorce as compared to that of Mexico, a Superior Court of Connecticut said:

“In other words, an internationally foreign decree will be accorded treatment similar to a judgment of one of our sister states, unless it is found to be repugnant to some basic public policy of the state.
No such repugnancy is found here. The divorce in the instant case was granted on grounds which, at the time of the rendition of the decree, would not have been considered proper under the Connecticut statute; that is, incompatibility of temperaments. Today, however, is the point in time from which we should evaluate the state’s public policy regarding permissible grounds for divorce. Since the passage of Public Act 73-373, these grounds have included the irretrievable breakdown of the marriage. The grounds on which the Mexican divorce was granted do not differ so greatly from our current divorce law as to be considered repugnant.” Yoder v. Yoder, 31 Conn.Supp. 345, 330 A.2d 825, 827 (1974).

Appellant relies on the principle that a bona fide domicile in the divorce forum is essential to confer jurisdiction of the subject matter.

We note that, in the proper case, the domiciliary requirement may serve an important function; requiring domicile in the rendering jurisdiction as a prerequisite to granting comity may effectively prevent a jurisdiction with no legitimate interest in a particular controversy from fixing or altering legal relationships against the laws and policies of the jurisdiction which does have a legitimate interest in the parties, by virtue of their domiciliary status.

We would, of course, deny comity to a foreign nation decree if its lack of jurisdictional requirements equivalent to our own resulted in prejudice to any citizens of this State. It is clear that in this case the difference between Tennessee’s jurisdictional requirements and those of the Dominican Republic have in no sense prejudiced the immediate parties. To the contrary, they contend that they have relied upon the validity of the Dominican Republic decree since its rendition more than three (3) years ago and will be prejudiced if we withhold comity.

Appellant contends that it is against public policy for the state as a third party to the marriage contract to “surrender its sovereignty” to a foreign nation whose laws evince no interest in maintaining the stability of marriage as an institution.

We recently had occasion to recognize and affirm that public policy. There is, however, another public policy consideration that is applicable in the aftermath of a hopelessly broken marriage, that was enunciated by this Court many years ago, a policy that also undergirds the legislative enactment allowing divorce on the ground of irreconcilable differences. In Farrar v. Farrar, 553 S.W.2d 741 (Tenn.1977), Mr. Justice Henry, writing for the Court said:

“We fully recognize that considerations of public policy demand that the institution of marriage be sheltered and safeguarded. But there is an obverse side to the coin of public policy and consideration must be given to the fact that society is illserved by a legally commanded continuance of a marriage which exists in name only. We quote from the opinion of the late Chief Justice Grafton Green, in Lingner v. Lingner, 165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933): As pointed out by another court, we must take into consideration ‘the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried.’ (Citation omitted.) Society is not interested in perpetuating a status out of which no good can come and from which harm may result.” 553 S.W.2d at 744, 745.

Appellant argues that Hamm v. Hamm, 30 Tenn.App. 122, 204 S.W.2d 113 (1947), is dispositive of this case because it held that a divorce granted by a jurisdiction in which neither party is domiciled is invalid for lack of subject matter jurisdiction. The case involved the validity of an Arkansas divorce. Plaintiff had fraudulently alleged in the Arkansas action that he was a domiciliary of Arkansas, and the Tennessee court held the divorce void because, under Arkansas law, the granting court had no subject matter jurisdiction. Thus, with respect to requiring domicile in the rendering forum of at least one of the parties to a divorce, Hamm is silent.

The case at bar is readily distinguishable from Hamm because the Dominican Republic divorce was granted in accord with that nation’s domiciliary requirements for subject matter jurisdiction.

Appellant argues that summary judgment was inappropriate in this case because appellees were not entitled to judgment “as a matter of law” as required by Rule 56.03, Tennessee Rules of Civil Procedure. This contention is without merit. Throughout the proceedings in the trial court and in this Court, there has been no hint that there was any issue as to any material fact. While Tennessee is not, as a matter of law, required to grant comity to any foreign decree, the decision to grant comity in a given situation is nevertheless purely a question of Tennessee law.

The judgment of the Chancery Court of Shelby County declaring the decree of the Court of First Instance, Santa Domingo, Dominican Republic, valid and enforceable is affirmed. Costs are adjudged against Joseph R. Hyde, III.

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


text:
    John D. MADDOX et al., Appellants, v. WEBB CONSTRUCTION COMPANY, Appellee.
    Supreme Court of Tennessee.
    Feb. 27, 1978.

      Thomas N. Bateman, Clarksville, for appellants.
    Albert P. Marks, Marks, Fleming & Marks, Clarksville, for appellees.
   OPINION

FONES, Justice.

Webb Construction Company sued J. D. Maddox for $7,762.80, the alleged balance due on a construction contract to remodel a Goodyear store owned by Maddox. The issue is the balance due plaintiff, if any.

Webb, although admitting he had originally made a bid to perform the work under a fixed price contract, asserted that the contract under which the work was actually performed simply provided that he was to perform alterations on a building at 740 Franklin Street, Clarksville, Tennessee, according to the specifications of the Goodyear Tire and Rubber Company on the basis of cost plus ten (10%) percent.

Maddox’s first answer to the complaint admitted the contract as asserted by Webb, admitted making payments thereon for labor and materials furnished, and admitted that Webb had billed for a balance due in the sum of $7,762.80. Maddox denied that the amount asserted by Webb was correct and asserted:

“. . . that it contains charges not contemplated by the contract executed on October 2, 1972; includes labor charges not contemplated by said contract; includes labor charges not expended on said job; and includes overhead and other cost items not expended on said job.”

There were amendments to both the complaint and the answer prior to a hearing on March 4, 1974, before former Chancellor Regan, as well as a cross-complaint by Maddox, none of which are now material. At the time of the hearing in March, 1974, the only issues made by the pleadings were the correctness of the charges that could fairly be said to be embraced in the above quote from Maddox’s answer.

The hearing on March 4,1974, resulted in an order of reference to the Master of ten (10) specific issues. The order reflects that proof was heard and that based upon the pleadings, the proof and the argument of counsel, the Chancellor formulated the ten (10) issues, and directed the Master to take proof thereon and report his findings to the Court.

The Technical Record contains a document entitled “Motion” filed May 9, 1974. Therein Maddox moved the Court for leave to amend his answer “. . . so as to cause said answer to conform to the evidence adduced at the hearing in this cause. .” The motion continues by alleging that Maddox and Webb entered into a written contract on September 5, 1972, wherein Webb agreed to perform the contemplated construction work for $39,631, which included $7,000 for a roof and miscellaneous items that were actually performed by others; that the cost plus contract dated November 7, 1972, was induced by Webb’s assurances that it would cost Maddox less money than the fixed price contract. The motion continued by asserting that Maddox had already paid plaintiff $34,078.95; that as a result of Webb’s inducements, and others having performed $7,000 of the original contract figure, it was asserted that defendant’s obligation was limited to the sum of $32,631 and therefore plaintiff was not entitled to any recovery.

The Technical Record does not reveal that any action was taken on Maddox’s motion filed May 9, 1974. At the time this motion to amend was submitted it was necessary that Maddox secure leave of Court. T.R.C.P. 15.01. No such leave was granted. However, it appears that Webb raised no objection to Maddox’s right to make said contentions based upon his failure to plead same, so that under Rule 15.02 Maddox’s contention may be treated as if well plead.

On September 17, 1974, the Master filed his report. In summary he found that Webb’s final billing of $7,762.80 had overcharged Maddox a total of $2,927.75. The result of the Master’s report was that Maddox owed Webb a balance, on the cost plus contract of $4,835.05.

A significant period of time passed during which Chancellor Regan was replaced by Chancellor Hall and Chancellor Hall was killed in a tragic accident. On motion of plaintiff, an order of confirmation was entered on the 15th day of March, 1976, reciting that since no exceptions had been filed to the report of the Clerk and Master dated September 17, 1974, it was in all things confirmed.

On May 3, 1976, a hearing was held before Chancellor Leech, who had signed the order of confirmation in March. The only evidence adduced at the time was the very brief oral testimony of Maddox and Webb. That testimony and an extended colloquy between Court and counsel is in the bill of exceptions. The testimony adduced before the Master was not made a part of the record on appeal.

The learned Chancellor filed a memorandum opinion on September 11, 1976, and a final decree was entered October 7, 1976. He dismissed the plaintiff Webb’s complaint. He found that the work was performed under the cost plus ten (10%) percent contract, but that:

“Under this short agreement upon a cost plus basis, plaintiff had a duty to keep a separate account with invoices and time sheets, which it did not do. A reference to the Master was had and from his report, which is unexcepted to, it is evident that this final bill contained many items which were not properly chargeable to this project. At the time this suit was filed the defendant had already paid plaintiff a total of $34,078.95 or $1,447.95 more than plaintiff had agreed to prior to the written cost plus agreement. From the Master’s report, the Master had to resort to speculation, this is especially true of the charges for Workmen’s Compensation Insurance; State Unemployment tax; and Social Security. It was the duty of the plaintiff to keep accurate accounts of these charges.”

The Court of Appeals held that the decree confirming the report of the Clerk and Master was conclusive of all the issues in the lawsuit and awarded a judgment in favor of plaintiff in the sum of $4,835.05. We affirm that decision.

At the May 3, 1976, hearing, counsel for Maddox attempted to convince the Court that two issues remained for adjudication in spite of confirmation of the Master’s report, to which Maddox had filed no exceptions. First, it was insisted that Webb had told Maddox the cost plus contract would save the owner money, which counsel urged to be the equivalent of limiting the amount that Maddox would be obligated to pay to a maximum of $32,631. Second, that included in the labor charged to defendant in the Master’s report, $13,668.03 was a sum attributable to Robert Webb, the president of Webb Construction Company, and that said sum represented his salary as president for which he performed work other than on the Maddox contract.

On the first issue, Maddox testified that after the fixed price contract was entered into, Webb said, “that he could save me some money by entering into a cost plus— cause I had done the building on a cost plus — I have had a little experience in the past in the cost plus and had no problems.”

Webb denied that he had made that statement to Maddox. He testified that Goodyear wanted bids on the work; that he and another contractor entered bids, but that they had an understanding with Maddox that the work would be performed under a cost plus contract; that subsequent to the bidding, at Maddox’s request, he executed the cost plus contract which Maddox had typed.

If this dispute could be said to create a material fact issue, in view of the parol evidence rule, the Chancellor made no express finding thereon. We construe his dismissal of the complaint as resting upon dissatisfaction with the quantum and quality of the contractor’s records, as reflected by the evidence adduced before the Master. We do not think that the statement that defendant had paid $1,447.95 more than the earlier agreement called for was intended to be an acceptance of Maddox’s meager testimony and the theory of counsel based thereon. But, if we concede that to be the ease, and further, that the Chancellor’s finding be entitled to a presumption of correctness, as is contended by an assignment of error here, the Court of Appeals expressly found to the contrary.

Maddox did not claim at any point in his testimony that he and Webb had agreed that the cost plus contract would be limited by the figure in the fixed price contract. He did not even testify that Webb’s alleged statement that the cost plus contract would save him money was construed by him to mean that Webb could not charge him more than $32,631. That was counsel’s interpretation. In short, the preponderance of the evidence was clearly against Maddox on this issue, and we affirm the Court of Appeals finding thereon.

It is equally clear that Maddox’s contention violated the parol evidence rule, in that it sought to alter the terms of the written cost plus ten (10%) percent contract. The parol evidence rule in Tennessee is not a rule of evidence merely, but is a rule of substantive law and no exception nor assignment of error is necessary to ensure its application. Lazarov v. Klyce, 195 Tenn. 27, 255 S.W.2d 11 (1953); Heaver v. J. C. Mahan Motor Co., 163 Tenn. 429, 43 S.W.2d 199 (1931).

With respect to the second issue, it is clear that it was embraced within the issues referred to the Master. At the May 3,1976, hearing, although the Chancellor reminded counsel repeatedly that the Master’s report had been confirmed and, inferentially, was binding on the parties and the Court, he did direct that a stipulation be filed agreeing upon the specific sum paid to Webb “for his labor.” The stipulation was filed and the figure stipulated was $2,395.80. No mention of this stipulation was made in the Chancellor’s memorandum opinion or decree. Apparently the Chancellor deemed it unnecessary in view of the dismissal of plaintiff’s complaint.

Defendant Maddox acknowledges that the Master’s report was binding on the parties at the time of the May 3, 1976, hearing, as to those matters referred to the Master, but insists that the reference did not include a determination of “the propriety of the charges.” We are provided no reason why the propriety of the charges was not the underlying purpose of the reference. Question six in the order of reference was: What amount did plaintiff pay for labor expended on defendant’s job? The Master’s report found: “It appears, based upon defendant’s calculations, that plaintiff paid approximately $13,668.03 for labor.”

In our opinion, that finding was conclusive of defendant’s contention that included therein was a sum paid Webb by the corporation for work not performed on the Maddox contract. The issue was expressly limited to labor expended on defendant’s job. The Master expressly stated that the sum found was based on defendant’s own calculations.

But, if we concede that defendant was not foreclosed, the stipulation, being the only evidence on the issue, does not resolve the matter in favor of defendant. The stipulation was to the effect that if the Court found “that the labor performed by Robert Webb, Sr., is not a legitimate charge,” the plaintiff’s recovery would be reduced by $2,395.80. The Chancellor made no finding that the labor performed by Webb was not a legitimate charge, and there was no evidence whatever adduced before the Chancellor at the May 3, 1976, hearing upon which he could have made such a finding.

We affirm the judgment of the Court of Appeals. The cause is remanded to the trial court for the entry and enforcement of the judgment. Costs of this appeal to this Court are adjudged against defendant Maddox.

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


author: HARBISON, Justice.

text:
    COMBUSTION ENGINEERING, INC., Appellant-Defendant, v. James H. KENNEDY, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Feb. 27, 1978.
    Paul Campbell, Jr., Chattanooga, for appellant-defendant.
    Jeffrey D. Boehm, Chattanooga, for ap-pellee-plaintiff.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the trial court awarded benefits to the employee for loss of sight in both eyes, finding a causal connection between the industrial blindness of the employee and an accident which had occurred in the scope and course of his employment. On appeal the principal contention of the employer is that there is no material evidence of such causal connection.

The underlying facts of the case are essentially undisputed. The employee was a welder, approximately forty-eight years of age, and had been employed by Combustion Engineering, Inc. for about twenty-five years at the time of the accident on January 27, 1976. While attempting to extinguish a fire, he struck his head on a metal pipe, sustaining lacerations above his right eyebrow and on the lower right eyelid. The force of impact was such that the employee was thrown suddenly to the floor, and his safety glasses were dislodged. When he got up, he found that blood was flowing from the cuts around his eye, and he was sent to the office of a general surgeon, where the lacerations were sutured. Five days later these sutures were removed. In the interim the employee had reported for work but did not engage in welding; he could not wear his safety helmet because of swelling in the injured area of his face. He did not resume welding until two weeks after the accident. Thereafter he began to suffer from rather severe headaches but was able to continue working with the aid of aspirin.

On Sunday, February 28, 1976 the employee awoke and noticed that vision in his right eye was impaired. On the next morning he notified the employer and was then seen and examined by Dr. Jemison Bowers, an ophthalmologist. Dr. Bowers immediately advised hospitalization of the employee, finding on examination that visual acuity in the left eye was normal but that in the right eye was sharply diminished. Dr. Bowers called a neurosurgeon, Dr. Ralph McGraw, for consultation, and the two doctors saw the employee each day for the next seventeen days while he was in the hospital. Plaintiff lost the vision in his right eye entirely after being hospitalized, and three days later suddenly lost vision in his left eye.

There is general agreement among the medical witnesses that the loss of vision resulted from optic neuritis, an inflammation of the optic nerve. The condition was serious, causing the optic nerve to wither or die, and resulted in severe loss of vision in each eye. The employee can distinguish light from dark and has other limited visual perception. However, there is no question but that he was suffering from total blindness at the date of the trial, within the meaning of the workmen’s compensation law.

Numerous tests and examinations were performed upon the employee, both during his hospitalization and thereafter, and there is a wide diversity of expert opinion as to the cause of his optic neuritis. He himself attributed it to the industrial accident which occurred on January 27, 1976. Neither Dr. Bowers nor Dr. McGraw could find any causal nexus between the accident and the subsequent blindness of the employee, nor could other specialists who were called as expert witnesses on behalf of the employer. Several of the witnesses testified that such neuritis is usually the result of multiple sclerosis or some other disease or inflammation of the brain tissues, but there is no evidence that the employee has or has ever had multiple sclerosis, and there is no such diagnosis in the present case.

The employee was examined by another ophthalmologist, Dr. Bruce Dahrling, who gave a professional opinion that the optic neuritis from which the plaintiff was suffering was secondary to and resulted from the accident of January 27, 1976.

It is insisted by the employer that Dr. Dahrling’s testimony is speculative, and that since he was only an examining physician and not a treating one, his testimony either should not be considered at all or should not be given the weight accorded to that of the examining and treating physicians.

With respect to the admissibility of Dr. Dahrling’s testimony, notice must be taken of the provisions of T.C.A. § 24-718 as follows:

“In the trial of any civil suit, there shall be received in evidence if offered on behalf of any party thereto, opinions as to medical findings as a result of treatment or examination of the party, whether such opinions are based on subjective or objective findings, provided such opinions are those of persons otherwise qualified as medical experts. It is declared to be the intent of this section that medical opinions based on subjective findings are no longer to be excluded from evidence whether the opinion is from the treating expert or an expert called in for purposes of examination and evaluation.”

Earlier cases in this state holding to the contrary and relied upon by the employer, are, of course, modified or superseded by these statutory provisions, which have been in force since 1967.

None of the expert witnesses who testified could express anything more than a professional opinion as to the cause of the blindness suffered by the employee, and obviously the trial court was presented with an obscure, complex and difficult medical problem. The greater number of witnesses who testified in the case were of the opinion that there was no causal connection between the accident of January 27, 1976 and the subsequent optic neuritis, but most of them were unable to attribute it to any other known cause. The employee had previously suffered from a viral infection, which he described as influenza, and at least one physician felt that this was the most probable cause of the inflammation of the optic nerve.

The matter, at best, was one for medical and expert opinion, and the trial judge had to choose from conflicting opinions expressed by highly qualified and conscientious expert witnesses. There is no question but that the employee did sustain an industrial accident which resulted in external injuries in the area of his right eye, and that considerable force was involved, to the extent that several sutures were required and the employee was thrown heavily to the floor. The trial judge concluded that the opinion of Dr. Dahrling should be accepted over those of the other expert witnesses and that it contained the most probable explanation in view of the known facts.

We can find no basis for the assertion in the employer’s assignments of error that the trial judge failed to weigh the conflicting evidence which was before him. On the contrary he apparently weighed it very carefully. The only basis upon which his decision could be reversed in this Court would be for the Court to conclude that the testimony of Dr. Dahrling was entitled to no weight or consideration whatever and amounted to no material evidence. This we simply are unable to do, because he was a well-qualified witness, acquainted with the history of the case, and competent to express an expert opinion on the critical issue of causation. This materially distinguishes the instant case from American Enka Corp. v. Sutton, 216 Tenn. 228, 391 S.W.2d 643 (1965), which is heavily relied upon by the employer. There the testimony found to have no probative value on the issue of causation was that of an optometrist, not an ophthalmologist.

This Court is not permitted under the controlling statute, T.C.A. § 50-1018, to engage in the weighing of testimony or evaluating its preponderance, since judgments of trial courts in workmen’s compensation cases are equated to jury verdicts and are reviewed as such. The statute provides that such appeals “shall be heard and determined in accordance with practice governing other appeals in the nature of a writ of error in civil causes.” Since the enactment of the workmen’s compensation statutes, these provisions have uniformly been construed to mean that the appellate court reviews the record only with respect to questions of law or to determine whether factual conclusions of the trial court are supported by any material and competent evidence.

We have considered the other assignments of error of the employer and do not find them to have sufficient merit to warrant reversal.

Finding that there is material evidence to support the conclusions of the trial court, we affirm the judgment. We are not able to sustain the motion filed on behalf of the employee, however, that the appeal should be regarded as frivolous, entitling him to expenses and counsel fees under T.C.A. § 27-124. We have already noted that the issues in the case were quite obscure. Viewed objectively, the evidence in favor of the employer was as competent and persuasive as that offered by the employee. Despite the fact that the “material evidence rule” is well settled and axiomatic in workmen’s compensation cases, we cannot say that the appeal in this case was so utterly devoid of merit as to justify imposition of a penalty against an employer who has diligently and in good faith sought appellate resolution of the issues.

The judgment of the trial court is affirmed at the cost of appellant, and the cause is remanded to it for entry of such further orders as may from time to time be appropriate.

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