author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Terry Eugene SAVAGE, Appellant.
    No. KCD 26846.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Kenneth K. Simon, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special JJ.
   ROBERT R. WELBORN, Special Judge.

Terry Eugene Savage was charged in the Jackson County Circuit Court with robbery in the first degree and assault with intent to kill, with malice. The charges were consolidated for trial, which resulted in a jury verdict of guilty on each charge. The court, under the Second Offender Act, sentenced the defendant to consecutive 20-year terms.

On December 31, 1970, “a colored fellow” entered Traxler’s Pharmacy in Kansas City and ordered a package of cigarettes from the proprietor, Seymour Trax-ler. When Traxler turned to deliver the cigarettes, the “customer” was holding a gun. He told Traxler to open the cash register. The robber took money from the register, put it in a sack, and began to tape Traxler’s hands. At that time a police officer, Sergeant Thomas H. Ratterman, responding to an alarm tripped by Traxler, entered the store. The robber fired three times at Sergeant Ratterman and the officer returned the fire. Neither man was hit. The robber threw his gun from behind a counter and said “I quit.” The officer placed him under arrest. A pillow case containing currency was found near the cash register.

Savage was charged with robbery from Traxler and with assault with intent to kill with a deadly weapon, with malice, against Ratterman. Traxler, Sergeant Ratterman and another officer who came to the scene testified at the trial of the charges. The officers unequivocally identified appellant as the man arrested at the scene. Traxler was unable to make an identification. No evidence was offered on behalf of defendant.

On this appeal, the first contention is that the trial court erred in failing to grant a new trial because of prejudicial argument by the prosecuting attorney.

In his opening summation, the prosecutor, in recalling Traxler’s testimony, referred to the robber on seven occasions as a “black man.” No objection was made. In his motion for new trial, appellant requested a new trial “on the grounds of over emphasis by the Prosecutor in closing argument of Defendant’s race by reference to ‘that black man’ repeatedly in summing up evidence before the * * * all white jury.”

The lack of objection at trial precludes reliance on this ground for relief in this court. State v. Brogan, 488 S.W.2d 623, 625[1] (Mo.1973); State v. Carter, 478 S.W.2d 358, 361[4] (Mo.1972); State v. Richards, 467 S.W.2d 33, 37[7] (Mo.1971); State v. Davis, 448 S.W.2d 892, 894[2] (Mo.1970). The case of State v. Sheard, 276 S.W.2d 191 (Mo.1955), cited by appellant, demonstrates that any error in the use of language such as that here objected to is correctable upon proper objection to the trial court. Having failed to make objection at the time of the remarks, there is no basis for a finding of error on the part of the trial court.

Appellant does not suggest that the complaint justifies relief under the plain error rule. Rule 27.20(c), V.A.M.R. The remarks, in any event, would not have resulted in “manifest injustice” or a “miscarriage of justice.” The only issue for the jury was the innocence or guilt of appellant. The evidence of guilt was overwhelming. There is no indication of a motive on the part of the prosecutor to derogate appellant because of his race. The prosecutor merely was describing appellant in approximately the language of Traxler to whose testimony he was referring, and who did not, in fact, identify appellant.

Appellant next complains of error in the overruling of his motion to dismiss for failure to afford him . his constitutional right to a speedy trial.

Appellant was arrested at the scene of the crime on December 31, 1970. Informa-tions were filed in the circuit court on January 11, 1971. He was arraigned on January 11, 1971, entered pleas of not guilty, and the charges were set for trial February 15, 1971. On January 14, 1971, he ex-caped from custody in Jackson County. He remained at large until June 7, 1971, when he was arrested in Florida on a federal bank robbery charge. A hold order was sent to federal authorities from Jackson County while appellant was in custody in Florida. He wa| eventually convicted of that offense and incarcerated at a federal penal institution.

On March 16, 1972, while he was in the Medical Center for Federal Prisoners at Springfield, Missouri, appellant was notified of a detainer filed by the Jackson County sheriff on charges of assault with intent to kill and tampering with a motor vehicle.

In November, 1972, while he was at the Federal Reformatory in El Reno, Oklahoma, appellant mailed to the “Office of the Clerk, Criminal Court Building, Kansas City, Missouri” a “Petition Seeking the Withdrawal of the Detainers and the Dismissal of the Charges” against him in the Jackson County Circuit Court. The grounds of the “petition” are not entirely clear. Apparently, however, relief was sought for the reason that no action had been undertaken to bring him to trial within 180 days from the notice of the detainer filed while he was awaiting trial on the bank robbery charge. The clerk’s records showed the filing of the petition, but no copy appeared in the file upon presentation of a later motion. There is likewise no record of the disposition of this petition.

In April, 1973, a formal request, in accordance with the Uniform Agreement on Detainers (§ 222.160, RSMo 1973 Supp.), was made for the disposition of the Missouri charges. They were set for trial on June 18, 1973. On June 12, 1973, defendant filed a motion to dismiss the charges for failure to grant a speedy trial. The motion was presented to the court and overruled.

Although it is not entirely clear that the June 12, 1973 motion was premised on such basis, appellant here contends that his November, 1972 “Petition” was sufficient to place in motion the operation of the Agreement on Detainers and that failure on the part of the state to bring him to trial within 180 days of the filing of that document precluded his being tried. The respondent has joined issue on this ground.

The United States (18 U.S.C.Supp.) and Missouri (§ 222.160, supra) are parties to the Agreement on Detainers (AOD). Article III of the Agreement provides, in part:

“1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

“2. The written notice and request for final disposition referred to in paragraph 1 of this article shall be given or sent by the prisoner to the warden, director of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.”

The November so-called “Petition” does not follow the requirements of AOD. It did not originate in a request by appellant to the warden of the federal institution. It did not contain the requisite certificate of that official. It was not mailed to the appropriate prosecuting official, the Jackson County prosecutor, the officer who would be required to put the machinery of AOD in motion.

By its terms, the petition sought dismissal of the Missouri charges on the grounds of violation of the federal constitutional guaranty of the right of speedy trial. It did refer to a 180-day limit for state action, but sought to apply that limit from the time of the filing of the “hold” order at the time of appellant’s Florida arrest. Appellant’s June, 1973 motion, in effect, concedes that his original “Petition” was not under AOD, because it makes no reference to the “Petition” and states that on April 9, 1973, “ * * * the Defendant made formal request of Missouri for a speedy trial under the INTERSTATE AGREEMENT ON DETAIN-ERS, * *

Appellant relies upon the application of AOD by the Delaware Supreme Court in Pittman v. State, 301 A.2d 509 (1973). In that case Pittman, imprisoned in Maryland, asked the warden of the prison to notify Delaware officials that he wanted final disposition of a Delaware detainer. Maryland and Delaware were parties to AOD. The Maryland official, in May, 1970, erroneously told Pittman that Delaware was not a party to AOD. Pittman wrote a letter, which was delivered to the attorney general of Delaware on July 13, 1970, demanding immediate trial of the Delaware charge. No action in Delaware resulted. In August, 1970, he directed correspondence to judicial officers in Delaware, which was forwarded to the attorney general. In November, 1970, the deputy administrator for AOD in Delaware transmitted to the Maryland attorney general a request for temporary custody of Pittman to clear the Delaware charge. Pittman refused to waive extradition, but was returned to Delaware on May 20, 1971, and tried and convicted on July 26, 1971.

The Supreme Court of Delaware, in holding that the indictment should have been dismissed under the 180-day rule, emphasized that Pittman did what was required of him when he made his request to the Maryland prison official. What occurred thereafter was the fault of that official and neglect on the part of Delaware officials. The court concluded that Pittman should not bear the burden of such errors and that the 180-day period having run, the indictment was required to be dismissed.

In this case, appellant followed a course other than that provided by AOD. He did not do so as a result of mistake or misguidance by any official or either the federal penal system or the State of Missouri. As appellant points out, AOD does call for liberal construction “so as to effectuate its purposes.” Article IX. However, that does not mean that the provisions of the agreement may be wholly ignored by a person seeking its benefits.

In this case, the November, 1972 “Petition” was not sufficient to start the running of the 180-day period set by AOD. See State v. York, 511 S.W.2d 758, 761-762[2] (Mo.1974). Appellant acknowledges that when he did take proper steps to invoke the protection of AOD, he was brought to trial well within the 180-day period. Appellant’s contention that the information should have been dismissed for failure to afford him a speedy trial is without merit.

Judgment affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Verlin K. LESTER, Plaintiff-Respondent, v. DAVIDOW’S DECOR, INC., Defendant-Appellant.
    No. KCD 26840.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      Thomas R. Slaughter, Shockley, Reid & Roger, Kansas City, for defendant-appellant.
    William F. Mauer, Kansas City, for plaintiff-respondent.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action for damages for return of purchase price for allegedly nondelivered goods. On trial to court, judgment was for plaintiff, $3277.84 damages and interest of $991.97.

Plaintiff-respondent, Verlin K. Lester, and Lareita Boyer were planning to marry. On April 26, 1968, they went to Davidow’s, a furniture and interior decorating store owned and operated by defendant-appellant, Davidow’s Decor, Inc., in North Kansas City. There they selected numerous items of furniture for purchase at a price of $2656.73. The sales person prepared a sales ticket in the name of Verlin Lester, with the address shown as 2409 N.E. 53rd St., Kansas City. The sales ticket was marked “Hold.”

A Security Agreement was also prepared, showing Lester as the buyer and the 53rd Street address. The items purchased were listed in the agreement with a time payment price of $3307.15, payable in 36 monthly installments of $80.72, except that the last payment was to be $81.95. The agreement was signed by Lester and also Ms. Boyer, each as “Buyer.” It was signed on behalf of Davidow’s and bore the date “5-15-68.” It is not clear just when and by whom this date was inserted. The Security Agreement was intended to be assigned to General Electric Credit Corporation and there was evidence that the practice was not to date the agreement until General Electric Credit Corporation had checked the transaction and agreed to accept the assignment.

On May 9, 1968, Davidow’s delivered the furniture to 1413 Elmwood, Lawrence, Kansas. In response to interrogatories, Davidow’s stated that its employee, Donna Rawls, took instructions from Lester to deliver the goods to that address. On her deposition, Ms. Rawls stated that she could not remember being told by Lester to make the delivery to the Kansas address. The delivery ticket bears the signature of Lar-eita Boyer. There is a notation on the ticket “COD $32.00 Irene O.K. to leave.” This meant that the sales person who handled the transaction approved delivery of the order, whether or not the COD charge was paid.

According to Lester, sometime after the purchase had been made and before he made the first payment on the time contract, he was asked to come to Davidow’s and sign a new Security Agreement because the time charge had been erroneously figured on the first. He went to the store and signed a new agreement calling for a time sale price of $3277.84, payable in 36 monthly installments of $79.94. No request was made to Ms. Boyer to join in the new agreement. The new agreement was assigned to General Electric Credit Corporation. A duplicate original offered in evidence at the trial bore the signature of Lester alone as buyer. No date appeared on the document.

According to Lester, when he signed the second agreement, he did not know that the furniture had been delivered. He first learned of the delivery sometime after June 1, when he stopped at Davidow’s to make the first payment on the installment contract. At that time Davidow’s demanded a $50 delivery charge. That was his first knowledge that the furniture had been delivered. The plans of Lester and Ms. Boyer to marry had fallen through and at the time of his learning of the delivery the two were not speaking to each other. Lester never did talk to Ms. Boyer about the delivery of the goods.

When Lester objected to the delivery charge, Davidow’s dropped that item but it could not cancel the note inasmuch as it had been assigned to General Electric Credit Corporation. Lester asked General Electric Credit Corporation to cancel the note or put Ms. Boyer’s name on it. They said they could not do this. Acting on the advice of his attorney, Lester paid the installments as they came due and then brought this lawsuit.

Lester’s case was based upon his testimony, coupled with the admission of the Dav-idow employee who supposedly received direction from Lester for the delivery that she could not recall having done so. Lester was admittedly vague about the date of the various transactions and events. He stated that the second agreement could have been signed after May 15.

For the defendant, Donna Rawls, Davi-dow’s bookkeeper who handled credit transactions, testified that, after the delivery of the furniture on May 9, she sent the first Security Agreement to General Electric Credit Corporation, but it was returned for correction. She called Lester and asked him to come in and sign the new agreement. She did not recall whether she said anything about having Ms. Boyer sign the new agreement. She couldn’t "recall whether she was present when the second agreement was signed.

Julia Slavin, a former employee of Davi-dow, testified that she received several payments on the contract from Lester and that he never complained about the delivery of the goods and complained about the delivery charge only after he had made several payments. According to the witness, Lester was told of the delivery charge before discussion of the second agreement, and therefore knew that the goods had been delivered before he signed the second agreement.

The defendant presented no direct evidence of the origin of the direction which resulted in the May 9, delivery.

The trial court made a general finding in favor of plaintiff. In the absence of specific findings, the fact issues presented to the trial court must “be considered as having been found in accordance with the result reached.” Rule 73.01, subd. 1(b), V.A.M.R. On this appeal, this court reviews the matter on both the law and the evidence “as in suits of an equitable nature,” giving “due regard * * * to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01, subd. 3(a) and (b).

Applying these rules, it seems obvious that the trial court resolved the conflict in the evidence over when Lester learned of the delivery of the furniture in favor of Lester’s version, i. e., sometime after the second Security Agreement was signed. Otherwise, he would, by signing the second agreement with knowledge of what had occurred, have been deemed to have assented to the delivery which had been made.

Appellant does not ask that this factual determination by the trial court be rejected here. Its contention is that, at the time of the delivery of the goods, Lester and Ms. Boyer had obligated themselves jointly as purchasers under a complete contract, evidenced by the Security Agreement signed by both of them, and that the delivery arrangement which had been left open could thereafter be directed by either of the joint purchasers and delivery to either of them at the direction of either was a valid delivery and caused the contract to have been fully executed by appellant, leaving the second agreement only a modification of the first for the benefit of respondent.

Appellant relies on the case of Adler v. Wagner, 47 Mo.App. 25 (1891) as holding that delivery to either of joint purchasers is sufficient as delivery to both. That case does state that principle but the delivery there was in accordance with the directions made at the time the order was placed. The case does not hold that when there are joint purchasers, one of them has the right to-give delivery instructions to the exclusion of his joint purchaser. The rule relied upon by appellant applies only when delivery to one of the joint purchasers was by authority of the other. Cady v. Shepherd, 11 Pick. (28 Mass.) 400, 409 (1831).

More importantly, in this case there was evidence from which the trial court could have concluded that the “Hold” request here made was not a request which left open the delivery directions, but was one which left such directions to respondent. Note the following in respondent’s testimony:

“Q. Did you, in fact, tell them the furniture should not be delivered but should be held?
“A. Should be held until I gave them—
“Q. Was this fact noted on their sales ticket to hold dejivery?
“A. Yes, it was.
“Q. Now, the reason you did this, where were you living at the time of the second contract?
“A. I was living at 102 Northwest 63rd Street.
“Q. Your mother was living there with you, was she not?
“A. Yes, she was.
“Q. Who owns the furniture in the apartment ?
“A. My mother.
“Q. What was your mother planning on doing at that time?
“A. She was going to move back to St. Joe after we were married.
“Q. So you didn’t want the other furniture out there until she had moved out, right?
“A. Right.
“Q. At the time it was noted on the sales ticket that you told them to hold delivery, didn’t you ?
“A. Yes, sir.”

The documentary evidence is consistent with the idea that the delivery was to be at respondent’s direction. Only his name and address appear on the sales tickets. His name and address are shown on the heading of the Security Agreement opposite “Address of Buyer.” Ms. Boyer’s name appears only where she signed as “Buyer.” Respondent testified that Ms. Boyer “went in with me to buy it and she signed the contract, they requested that she sign it and she did sign it. * * * It didn’t enter my mind [that the contract would be binding on her], I was the principal signer of it.” Even the delivery ticket is in the name of respondent, although the Lawrence address then appears for the first time. Further consistent with this entire course of dealing is the fact that when the second Security Agreement was signed, appellant sought and obtained only the signature of respondent.

No one testified on behalf of appellant as to what the understanding of the parties to the contract was with respect to the delivery. The sales person who handled the sale and wrote up the sales ticket, including the “Hold”, was still employed by appellant at the time of the trial, but she did not testify.

In the circumstances of this case the trial court could and presumably did find that the delivery was not in accord with the understanding of the parties at the time of the sale and did not constitute performance of the contract by appellant. Therefore, the judgment as to the principal amount is affirmed.

Appellant complains that the interest allowed by the trial court was excessive. At the start of the trial, respondent was permitted to amend the prayer of his petition to include a request for judgment for interest at the rate of 6% from the date of the contract. The sum of $991.97 awarded respondent is apparently responsive to that prayer. Appellant contends that the right to interest must depend upon the amount paid and demand for its return. Appellant contends that there was no evidence as to the time of the payments made by respondent and that the earliest demand would have been when the petition was amended to ask for interest.

“Interest on a refund of purchase money to which a purchaser has become entitled because of a seller’s failure to perform should be computed from the time of its payment.” 67 Am.Jur.2d Sales, § 669, p. 868 (1973). See Miller v. Andy Burger Motors, Inc., 370 S.W.2d 654, 660[7] (Mo.App.1963). Respondent does not attempt to justify his claim for interest from the date of the contract, but does say that he is entitled to interest from the date of the breach, which occurred upon the nondelivery of the goods purchased. However, this is not an action for damages for breach, but for restitution of the purchase price, and the rule relied upon by respondent (see Prudential Ins. Co. of America v. Goldsmith, 239 Mo.App. 188, 192 S.W.2d 1, 3[2-5]) is not here applicable.

There was no evidence as to the course of the payments by respondent in this case. Absent such evidence, the earliest date at which interest should have been computed was the date of filing suit. That date does not appear in the transcript here so a remand will be necessary on this issue. Upon such remand, respondent, if he chooses, should be permitted to produce evidence of the actual payments made by him and have the interest computed accordingly. Otherwise, interest should be computed only from the date of filing suit.

Judgment affirmed in part; reversed and remanded in part.

All concur.


author: DIXON, Judge.

text:
    STATE of Missouri, Respondent, v. Clarence Willet McCAULEY, Appellant.
    No. KCD 26814.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      William E. Shull, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

The defendant appeals from a jury-tried conviction upon an information charging him with having unlawfully, intentionally and feloniously under his control, marijuana, a controlled substance statutorily defined as Cannabis sativa. The jury assessed defendant’s punishment at a fine and one year’s confinement in the Daviess County jail. The defendant filed a timely motion for new trial and a timely appeal.

The defendant was arrested on August 19, 1972, in Daviess County. The arresting highway patrolmen observed the defendant and another man drive onto the farm where the officers were hidden in a barn loft. The defendant, the passenger, and the cohort, the driver, emerged from the car and pulled out a tarpaulin from underneath a nearby tree. The car was placed behind a fence row where it was not readily visible from the road. The two men then proceeded to wrap their thumbs and forefingers in adhesive tape that they had brought with them. They then began to pick up stalks of marijuana which were lying on the ground in the area and strip the leaves from the stalks onto the tarpaulin which they had laid out near their car. The men spent twenty minutes stripping the leaves from the stalks onto the tarpaulin. ' When they had finished, they folded the leaf-filled tarpaulin and placed it underneath the tree. The defendant and his cohort were arrested as they began to drive away.

The defendant’s first point on this appeal is that the trial court erred in failing to grant the defendant’s motion for judgment of acquittal at the close of the State’s evidence and at the close of the case because there was not sufficient evidence that the defendant had the marijuana under his control.

In considering this point, all favorable inferences from the evidence will be drawn to support the verdict. State v. Bryson, 506 S.W.2d 358 (Mo.1974).

In support of his position that the evidence is legally insufficient to establish control by the defendant, the defendant relies on several cases involving the possession of intoxicating liquors during that time in our history when the possession of liquor was prohibited. The gist of those cases is that to sustain a conviction for possession of the liquor, the evidence must show more than a “fleeting and shadowy” control. State v. Lane, 221 Mo.App. 148, 297 S.W. 708 (1927); State v. Lunfrunk, 279 S.W. 733 (Mo.App.1926); State v. Williams, 117 Or. 238, 243 P. 563 (1926). In those cases where the conviction was reversed, the defendant had only had physical possession of the liquor for the limited time and purpose of taking one drink from the bottle before passing it to a friend. There was no evidence in those cases that the defendant assumed any dominion, management, or continuing use over the bottle. In each of those cases, the defendant only physically controlled the prohibited liquor for as long as it took to take a drink from the bottle.

However, in the instant case, the defendant physically controlled the marijuana for at least twenty minutes. The officers’ testimony established that the defendant spent about one minute stripping each stalk of its leaves, but he took twenty minutes in all to strip all the stalks.

The issue of possession need not and should not rest on the length of time in order to sustain the jury’s finding of possession and control. The nature of the possession is also important. The inescapable inference here is that the defendant and his cohort were engaged in preparing the marijuana for consumption. The defendant and his cohort went directly to the dried stalks and began the stripping. They came prepared with adhesive tape to protect their hands. The placing of the stripped leaves in the tarpaulin and their enclosure therein to protect from sight and the elements all demonstrate more than an idle picking up of a noxious weed. The acts in toto give flesh and substance to the possession.

Viewing the totality of the circumstances, the “liquor” case analogy by the defendant is not factually similar enough to support his argument that the control by this defendant was “fleeting and shadowy.”

Indeed, the facts in the cases which the defendant cites in support of his argument are not in his favor. In Lunfrunk, supra, the court said, in finding possession and control by the defendant, “All of the defendants exercised dominion over the whiskey, each one of them drank from the- jar.” Also, the defendant erroneously cites State v. McAllister, 187 N.C. 400, 121 S.E. 739 (1924), in support of his “liquor” case analogy. The only evidence presented to the trial court in McAllister, supra, was that the defendant was seen to take a drink from a bottle of liquor passed to him by a friend, and then the defendant returned the bottle to his friend. The court upheld the conviction for possession of the liquor on that evidence alone.

In State v. Bryson, supra, the only direct evidence of the actual physical possession by the defendant were observations by the arresting officers who saw the defendant open a window in his apartment and throw out the controlled substance, for which he was arrested. On the authority of Bryson, the evidence and the favorable inferences are sufficient to sustain the conviction.

Plaintiff’s second point of appeal is that the court erred in submitting Instruction No. 1, because that instruction allowed the jury to convict the defendant without first finding that the substance in the defendant’s control was actually the drug known as marijuana, and because the defendant failed to negative the statutory exception as to lawful possession.

The defendant did not raise these points in his motion for new trial. They are not, therefore, properly before this court for appellate review. State v. Carr, 499 S.W.2d 788 (Mo.1973).

In any event, the jury could not have been misled as to the nature of the substance possessed, there being no question but what the proof showed that it was Cannabis sativa, “known as marijuana.” Likewise, the burden is on the defendant to prove that the acts of the defendant fall within the exceptions of the statute. Section 195.180 RSMo 1969, V.A.M.S.; State v. Virdure, 371 S.W.2d 196 (Mo.1963); State v. McAllister, 468 S.W.2d 27, 29-30 (Mo.1971).

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    Barbara EULER, Plaintiff-Respondent, v. William E. SCHULTHES, d/b/a Santa Fe Cab Company, Defendant-Appellant, and George R. Betancourt, Defendant.
    No. KCD 26726.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.

      James Horn, Edward Sheppard, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant-appellant.
    Richard W. Mason, St. Joseph, for plaintiff-respondent.
    Before PRITCHARD, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

In this jury tried action for damages resulting from an intersection vehicular collision in Kansas City, Missouri, on May 23, 1972, plaintiff, Barbara Euler, received a verdict in the amount of $3,500.00 against defendant William E. Schulthes, d/b/a Santa Fe Cab Company. The jury returned a verdict in favor of defendant George R. Betancourt. Schulthes appealed. Plaintiff did not appeal from the verdict rendered in favor of Betancourt.

The issue posed by Schulthes on appeal, primal as it may be, is one that does not lend itself to a quick or easy resolution. Did the plaintiff make a submissible lookout case against Schulthes? Parenthetically, plaintiff submitted her case to the jury against both defendants on the sole ground that each “failed to keep a careful lookout”.

Ascertainment of Vhether the evidence in a given situation is sufficient to support a submission of negligence is subject to the established principle that a plaintiff is entitled to the benefit of all favorable evidence and all favorable inferences therefrom, regardless of the introductory source, party-wise, of such evidence. However, there is an equally well established qualification to the principle just mentioned. A plaintiff is not entitled to the benefit of evidence which is at variance with his unequivocal personal testimony as to the matters other than mere estimates or opinions, or which is at war with his own theory of the case. Hecker v. Schwartz, 426 S.W.2d 22 (Mo.1968), and Anthony v. Morrow, 306 S.W.2d 581 (Mo.App.1957). A congruent review of the evidence, interspersed with interpolations of applicable substantive law, discloses the following facts from which submissibility must be determined.

On the evening of May 23, 1972, around “dusk”, plaintiff was a passenger in a cab owned by appellant Schulthes (the driver of the cab did not appear or testify at the trial). The cab was traveling north on Washington Street in Kansas City, Missouri, approaching an intersection formed by Washington Street and Eleventh Street. Washington was a four-lane, “one-way” street limited to northbound traffic. Eleventh was a four-lane, “one-way” street limited to westbound traffic. The intersection was controlled by a “stop and go” traffic signal light. The cab was northbound in the second lane east of the west curbline. The record is silent as to the make, model and vintage of the cab. The other vehicle involved, a 1970 Toyota operated by George R. Betancourt, was westbound on Eleventh Street, in the second lane north of the south curbline and approaching the intersection. Even the most cursory review of plaintiff’s testimony reveals that she was quite adamant, and testified in a positive, unequivocal manner, that the cab had the “green” or “go” light as it approached and entered the intersection, and, as well, at the time the collision occurred. Plaintiff is bound by and irrevocably committed to her positive unequivocal testimony that the “green” or “go” light favored the cab at all time. Hecker v. Schwartz, supra; Burris v. Kansas City Public Service Co., 226 S.W.2d 743 (Mo.App.1950), and Mollman v. St. Louis Public Service Co., 192 S.W.2d 618 (Mo.App.1946).

The driver of the cab, favored as he was with the “green” or “go” light, had the right to assume that Betancourt would obey the traffic signal light and come to a stop before entering the intersection. The driver of the cab had the further right to rely upon this assumption until he knew or by the exercise of the highest degree of care should have known that Betancourt did not intend to obey the traffic light, but instead intended to proceed into and across the intersection without stopping. Coulter v. Bi-State Development Agency of Mo.-Ill. Met. Dist., 434 S.W.2d 793 (Mo.App.1968); Williams v. Funke, 428 S.W.2d 11 (Mo.App.1968); Collier v. St. Louis Public Service Co., 298 S.W.2d 455 (Mo.App.1957). Although plaintiff, absent any indication as to the location of the cab with respect to the intersection or any other fixed reference point, testified that she saw the Betancourt vehicle “before the actual impact” at which time it was “supposedly” stopped, her testimony in this respect was clearly equivocal and therefore nonbinding upon her. Smith v. Siercks, 277 S.W.2d 521 (Mo.1955); Burris v. Kansas City Public Service Co., supra. Consequently, one is relegated to searching the record to ascertain whether evidence exists as to when the cab driver’s right to rely upon the assumption that Betancourt would obey the traffic signal light terminated. The only evidence touching upon this crucial determination is found in Betan-court’s tesimony. He testified that when he was “four or five car lengths” east of the intersection he observed the cab, at which time the cab was approximately “half a block” away or “half ways up the street”. If judicial notice is taken that a city block is approximately three hundred feet in length, Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73[4] (1951); Hamell v. St. Louis Public Service Co., 268 S.W.2d 60[1] (Mo.App.1954), the import of Betancourt’s testimony is that the cab was approximately one hundred fifty feet “up the street” at the time his vehicle was “four or five car lengths” east of the intersection. At this point of time Betancourt variously described his vehicle as traveling approximately ten miles an hour or “going real slow”, and he estimated the speed of the cab at the same point of time as being approximately forty miles per hour. Plaintiff, absent specificity as to point of time or as to the cab’s position regarding either the intersection or the point of impact, or any other fixed reference point, estimated the speed of the cab at approximately twenty-five miles per hour. Betancourt further testified that he watched the cab for a period of time during which interval the cab traveled about “one-third” of the distance spanned by its original position when first observed by him and the intersection. During the same interval Betancourt testified that his vehicle traversed a distance of approximately “two car lengths”. At this latter juncture of time the cab was approximately one hundred feet south of the intersection and the Betancourt vehicle was still approximately two or three car lengths east of the intersection and approaching it “real slow” or at a speed of approximately ten miles per hour. The relative positions of the cab and the Betancourt vehicle with respect to each other, or with respect to any other fixed reference point, are thereafter unaccounted for, until according to the testimony of plaintiff, “we were crossing the intersection and he [Betancourt] came across there like a bat out of Hades”. Regressing to the relative positions of the Betancourt vehicle and the cab when last observed by Betancourt prior to entering the intersection and taking cognizance of the fact that both vehicles were inter-visible at the time, can it be said that the cab driver at that time knew or in the exercise of the highest degree of care should have known that Betancourt was not going to obey the traffic signal light ? This court believes not because the Betancourt vehicle, still approximately two or three car lengths from the intersection, was traveling “real slow” or at a speed of approximately ten miles per hour and there was absolutely nothing regarding Betancourt’s operation of the vehicle, prior to the time it entered the intersection, to indicate that Betancourt was not going to obey the traffic signal light. Risking repetition for the sake of emphasis, the relative positions of the cab and the Betancourt vehicle with respect to each other, or with respect to any fixed reference point whatsoever, are unknown, either (1) as to when the jury could have reasonably found that the cab driver knew or in the exercise of the highest degree of care should have known that Betancourt was not going to obey the traffic light or (2) when the Betancourt vehicle entered the intersection.

Betancourt testified that when he was in the middle of the intersection he heard the “noise of brakes” and glanced to his left and saw the cab, but, due to the accelera-tive nature of the circumstances, was unable to fix the cab’s position at that time. There was also evidence of the existence of skid marks at the scene attributed to the cab, which were described by one witness as being approximately forty-five feet in length and by another witness as being approximately two car lengths long. However, there was no evidence definitively locating the skid marks purportedly made by the cab. The point of contact between the two vehicles was the left front corner of the cab and the left rear side of the Betancourt vehicle. The record is silent as to where in the intersection the point of impact occurred.

The record in this case is notable, not for what it discloses, but for what it fails to disclose. In addition to vital evidentiary voids heretofore noted, the record is silent as to the mechanical condition of the cab, dimensions of either the intersecting streets or of the intersection where the collision occurred, stopping distances, the existence of other traffic on Washington Street ahead of, behind, or to either side of the cab, or as to the distance or length that Betancourt had reference to when he spoke in terms of car lengths.

As previously noted, there is a void in the record as to the relative positions of the cab and the Betancourt vehicle with respect to each other, or with respect to any other fixed reference point, at either of the two critical time periods affecting submissibility, (1) when the Betancourt vehicle entered the intersection or (2) when the cab driver knew or in the exercise of the highest degree of care should have known that the Betancourt vehicle was not going to obey the traffic signal light. The dual void mentioned renders plaintiff’s case fatally defective. Evidence of time, distance, means and ability in this case was mandatory since submissibility predicated on the cab driver’s failure to keep a lookout required evidentiary support from which the jury could find that the cab driver, after he knew or in the exercise of the highest degree of care should have known that there was danger of a collision, had the time, distance, means and ability to have avoided the resultant collision. Such evidentiary support was essential to show that the charged negligence, failure to keep a lookout, constituted the proximate cause of the collision. Proof of failure to keep a lookout, standing alone, was not enough. It had to be coupled with supporting evidence from which the jury could reasonably find that such failure constituted the proximate cause of the accident. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 772 (Mo.1965), and Lovelace v. Reed, 486 S.W.2d 417, 419 (Mo.1972). The cab driver was under no duty to take any evasive action until he knew or in the exercise of the highest degree of care should have known that Betancourt was not going to obey the traffic signal light, but, instead, was going to proceed into the intersection. It was incumbent upon plaintiff to prove, when the cab driver knew or in the exercise of the highest degree of care should have known that Betan-court was not going to obey the traffic signal light, or when the car entered the intersection, that the cab driver had the time, distance, means and ability to avoid the collision. This plaintiff failed to prove, and, having failed to do so, she failed to make a submissible lookout case against appellant Schulthes. Submissibility and speculation are incongruous.

Judgment reversed.

All concur.


text:
    George BURGIN, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 26813.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Willard B. Bunch, Public Defender, Douglas N. Merritt, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

Movant pleaded guilty to a charge of assault with intent to kill with malice and was sentenced to fifteen years imprisonment. He filed this motion under Rule 27.26, V.A.M.R., to vacate that sentence. The court below denied relief without holding an evidentiary hearing. The single issue presented on this record is the propriety of the denial of the evidentiary hearing, and upon that issue, the cause must be reversed.

At the time the movant pleaded guilty, he was twenty years old and had an elementary grade education. The movant testified at the time he pleaded guilty that the victim of his assault owed him some money. He said that both he and his victim were “high off some dope” at the time of the assault. The movant said that when the victim refused to pay the movant the debt, the movant replied, “Okay, we will just fight.” The movant said that he knocked the victim down three times. He said that after the victim fell to his knees he began to kick him “a lot of times.” The assault was stopped after some people pulled the movant away from the victim. The mov-ant said that when the people pulled the movant away from the victim they said, “let him go before you kill him, George.”

Movant pleaded in his motion that he had been promised a sentence of two years by his court-appointed counsel and that he entered his plea in reliance upon that promise. Standing alone, this allegation would not require reversal of the trial court’s order denying an evidentiary hearing. The plea proceedings are a part of the record, and the movant answered negatively when the trial court asked if any promise had been made. Smith v. State, 513 S.W.2d 407 (Mo.banc 1974); Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974).

The motion, however, further pleads in connection with the promise of a two-year sentence as follows:

‘Movant discussed this with his counsel fully, and counsel told movant to say ‘no’ when the court asked whether any deal had been made or movant would not get the two year sentence.”

This further allegation, if true, would taint the voluntary nature of the plea. The withholding from the trial judge of a promise made destroys the purpose prompting the inquiry by the court. The question by the trial court relating to a “promise” is intended to determine that the plea is not “involuntary” in the sense that a “promise” by anyone other than the judge is not binding on the court and that the defendant is not misled by a “promise” of a certain sentence not within the power of the promis-sor to perform. As it is sometimes put, the defendant is either entitled to the benefit of the promise or he should not be held to his part of the “bargain” and should be permitted to withdraw his plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Rose, 440 S.W.2d 441 (Mo.1969). No implication is intended as to the truth of the allegations made. The issue on bare pleadings is, if true, would such facts entitle him to relief.

The Supreme Court en banc has stated the rule of review of the denial of an evidentiary hearing in Smith as follows :

“ . . .A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.”

Under that rule, this movant has stated facts which, if true, would entitle him to relief.

The cause is reversed and remanded to the circuit court for the purpose of holding an evidentiary hearing on this issue and a determination upon that hearing of the factual issue, by appropriate findings of fact and conclusions of law.

All concur.


author: PER CURIAM:

text:
    Russell C. BUNTING, Plaintiff-Appellant, v. McDONNELL AIRCRAFT CORPORATION, now McDonnell-Douglas Corporation, Defendant-Respondent.
    No. 58783.
    Supreme Court of Missouri, En Banc.
    April 14, 1975.

      Mogab, Hughes & Green, Richard L. Hughes, St. Louis, Mo. and James F. Hes-pen, St. Louis, Mo., for plaintiff-appellant.
    Robert G. Brady, Robert F. Scoular, Michael B. McKinnis, St. Louis, Mo., for respondent; Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., of counsel.
   PER CURIAM:

Upon application of defendant-respondent, this cause was transferred to this court from the Court of Appeals, St. Louis District, after the filing of an opinion therein. The same has been re-argued and submitted in this court, and we approve and adopt as our own the opinion heretofore written by Simeone, J., which, without the use of quotation marks, is as follows and identified as Part I hereof.

Part I

This is an appeal by plaintiff-appellant, Russell C. Bunting, from an order of the circuit court of the City of St. Louis entered December 11, 1972, sustaining defendant-respondent’s “motion to dismiss for want of subject matter jurisdiction,” filed October 12, 1972.

This litigation has had a long and complex history. It began by the filing of a petition by Bunting on December 23, 1966, in which he sought damages for an alleged breach of contract. Innumerable sets of interrogatories and answers thereto were filed by both parties, requests for admissions of fact were filed and answered, numerous motions, pleadings, amended petitions and answers thereto were filed. Finally on January 18, 1971, Bunting filed what is denominated his “Third Amended Petition” (actually it is the fifth amended petition) seeking damages for an alleged breach of contract against McDonnell.

The “Third Amended Petition” was in three counts. The petition alleged in the first count that Bunting was employed by McDonnell on or about March 1, 1955, and that as a condition of his employment, signed an “employment contract” which provided any invention made by him would “become the property of MAC.” That as a part of the employment contract, Bunting had the benefit of a “patent compensation plan” which provided that “[a] 11 inventions conceived by me . . . during the term of my employment and within six months thereafter . . . shall be disclosed to and become the property of the company, and I shall assist in vesting good title in McDonnell Aircraft Corporation in obtaining patents. . . .” One of the provisions of the compensation plan provided for compensation to the employee from the “sale or licensing” by MAC. The compensation plan provided that initially all gross revenue derived from “sale or licensing of assigned patents” shall first be applied to reimburse MAC for its costs in connection with the invention, and thereafter the employee “will be granted a percentage of the remaining net income on the following scale: ... in excess of $2,000. 10%.” The plan also provided that if “MAC does not sell or license the patent, so that there is no ascertainable net income: An award up to $1,000 . may be granted on approval by the President of MAC” and “A larger award may be granted on approval of the Board of Directors.”

Bunting alleged that under the plan he “was to receive ten percent (10%) of all net income received by the defendant in excess of Two Thousand Dollars ($2,000. 00) from the use, slae [sale?] or licensing of said patents.”

On or about April, 1960, while employed by McDonnell, Bunting conceived and reduced to practice “an optical viewing system with polarized beam-splitting element” used in high range data recording cameras and direct radar scope cameras which is standard equipment in. airplanes manufactured by McDonnell. Application for patent on the invention was filed with the United States Patent Office on August 14, 1961, and a patent, No. 3,252,375, was issued to “Russell C. Bunting . . . assignor to McDonnell Aircraft Corporation. . ” on May 24, 1966.

On July 28, 1961, prior to the issuance of the patent, Bunting assigned and transferred “unto the said McDonnell Aircraft Corporation the whole right, title and interest in and to the said invention .” and, “I do hereby authorize and request the Commissioner of Patents to issue the said Letters Patent to the said McDonnell Aircraft Corporation as the as-signee of my entire right, title and interest in and to the same, for the sole use and be-hoof [sic] of the said McDonnell Aircraft Corporation.”

The petition filed by Bunting alleged that “although plaintiff has performed all of the conditions precedent [sic]” McDonnell has breached the contract with plaintiff by manufacturing, using and “allowing” Conductron Corporation of Missouri (a division of McDonnell) among others, to use, practice and sell the invention without charging a reasonable licensing fee and without paying Bunting ten percent of such reasonable licensing fee. McDonnell, it is alleged, refuses to pay all or any part of any reasonable licensing fee; that a reasonable value of license fees amounts to $1,400,000.00, and that Bunting is entitled to ten percent thereof.

Count II alleged at the time Bunting assigned his invention to McDonnell in July, 1961, a contract existed between McDonnell and the United States wherein McDonnell allegedly agreed to allow the Government to use and practice the invention without payment of a license fee which McDonnell asserts as a bar to Bunting’s right to receive income. Although McDonnell was aware of the existence of this contract with the United States, and allegedly had a duty to disclose the existence of such contract to Bunting, it failed to do so and its failure “in this regard was fraudulent and done with the intent to deceive plaintiff. . . . ”

Bunting alleged therefore that as a result of McDonnell’s failure to disclose the pre-existence of its agreement with the United States, the United States has not paid any fee for the use of the patent all to the damage of Bunting.

Count III alleged unjust enrichment on the part of McDonnell at the expense of Bunting by the use of the patent without paying or receiving a reasonable licensing fee.

The gist of Bunting’s petition therefore is that while Bunting is entitled to ten percent of a reasonable licensing fee for the use of his invention under the “Patent Compensation Plan,” and although McDonnell under its agreement with the United States that the Government may use the invention without fee, and although no sale or license fees have been received by McDonnell for the practice of the invention, nevertheless Bunting is entitled to ten percent of a reasonable license fee.

After answer to this petition was filed generally denying the allegations, McDonnell, on October 12, 1972, filed its motion to dismiss for want of subject matter jurisdiction. This motion alleged that “pursuant to Rule 55.31 [55.27], Missouri Rules of Civil Procedure [V.A.M.R.], defendant respectfully moves that the Court dismiss this action on the ground that this Court has no jurisdiction over the subject matter of the action because exclusive jurisdiction is in the Court of Claims pursuant to 28 U.S.C. § 1498.” On December 11, 1972, the court sustained this motion to dismiss. Bunting then filed his motion to vacate and set aside the order of dismissal and his alternative motion for leave to file an amended petition. This motion was overruled on March 1, 1973, and Bunting duly and properly appealed to this court.

Appellant Bunting, in his brief and in oral argument, urges three points: (1) that the court erred in holding that the dispute was cognizable in the Court of Claims since that court has jurisdiction only where ownership interests in patents are disputed; (2) the court erred in “directing a verdict” [sic] because the Court of Claims does not have jurisdiction since Bunting has never been the owner of any interest in the patent, and (3) Bunting is entitled to a “directed verdict”' on the issue that under the Patent Compensation Plan Bunting is entitled to receive a percentage of “a Licensing Fee.”

McDonnell, on the other hand, urges that the trial court correctly found that it did not possess jurisdiction over the subject matter of this action because exclusive jurisdiction is vested in the Court of Claims pursuant to 28 U.S.C. § 1498, and because this cause of action is actually a suit against the United States which is authorized by § 1498; and (2) Bunting is not entitled to a “directed verdict” on the issue that he is entitled to receive a percentage of a licensing fee because that question was not presented to the trial court.

At the outset it would be helpful to determine what is and what is not before us. While the parties have raised a number of oblique issues, we believe that in the present posture of this appeal there is only one issue that must be determined. McDonnell filed its motion to dismiss the petition for want of subject-matter jurisdiction ; the trial court sustained that motion; therefore, the sole issue for our determination is whether the circuit court has jurisdiction to determine this action filed by Bunting or whether it lacks jurisdiction because exclusive jurisdiction lies in the United States Court of Claims. The parties have raised other issues: (1) whether the petition states a claim for relief under the facts alleged for breach of contract although McDonnell receives no- licensing fees for the use of the invention, (2) whether the contract entered into between McDonnell and the United States in 1959, 60-0134-r, and the granting of a royalty-free license to the United States is a defense to the action filed for the alleged breach of contract so that a reasonable license fee is due Bunting regardless whether McDonnell received compensation from the sale or licensing of the patent, (3) whether McDonnell owed a duty to disclose the provisions of the contract with the United States and the confirmatory license when such contract was entered into prior to the assignment on July 28, 1961, by Bunting to McDonnell.

These are issues that are not properly before us and have not been determined by the trial court, and are not a part of this appeal.

Hence, we must determine only whether the trial court erred in dismissing the petition after McDonnell filed its motion to dismiss “for want of subject-matter jurisdiction.” §§ 478.070, 482.090, RSMo 1969, V.A.M.S.

McDonnell strongly urges that the court was correct because 28 U.S.C. § 1498 vests exclusive jurisdiction of this cause filed by Bunting in the Court of Claims and because the action is in reality a suit against the United States which “unless permitted by 28 U.S.C. § 1498 is prohibited by the Doctrine of Sovereign Immunity.”,

This is not a patent infringement action. Taking the allegations of the petition as true, as we must on a motion to dismiss, the action is one for an alleged breach of the “Patent Compensation Plan” incorporated by reference in Bunting’s employment contract which he signed in March, 1955. Viewing the petition in that light, we must determine whether 28 U.S. C. § 1498 precludes the State of Missouri from entertaining jurisdiction of the cause. McDonnell insists that Bunting’s sole remedy is against the United States “for the recovery of his reasonable and entire compensation for such use and manufacture.” 28 U.S.C. § 1498(a).

Resolution of the sole issue presented hinges upon the interpretation and application of 28 U.S.C. § 1498. That section provides :

“(a) Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy shall be by action against the United States in the Court of Claims for the recovery of his. reasonable and entire compensation for such use and manufacture.” (Emphasis supplied.)

This section has a long and involved history. It was passed as an amendment in 1918. The Supreme Court had held that a government contractor was not protected from liability from infringement when it used an invention for the United States, Cramp & Sons Ship & Engine Bldg. Co. v. International Curtis Marine Turbine Co., 246 U.S. 28, 42, 38 S.Ct. 271, 62 L.Ed. 560 (1918), and “as a result of that decision, contractors were hesitant to enter into broad procurement contracts for the government, with the possibility of being sued for patent infringement, and wartime procurement was being hindered. The Navy Department thereupon requested that the Act of 1910 be broadened so as to protect government contractors against such [infringement] suits.” Bereslavsky v. Esso Standard Oil Co., 175 F.2d 148, 149 (4th Cir. 1949) ; Irving Air Chute Co. v. United States, 93 F.Supp. 633, 635, 117 Ct.Cl. 799 (1950). The history of the amendment is fully set forth in Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed. 303 (1928). Its primary purpose was to protect and relieve contractors from any liability for infringement by the owner when an invention was used by or manufactured for the United States. Bereslavsky, supra. The United States in such situations consented to be responsible to the owner and consented to be sued for any possible infringement in the Court of Claims. “The purpose of the amendment was to relieve the contractor entirely from liability of every kind for the infringement of patents in manufacturing anything for the government, and to limit the owner of the patent and his assigns . to suit against the United States in the Court of Claims for his reasonable and entire compensation for such use and manufacture.” Richmond Screw Anchor Co. v. United States, supra, 275 U.S. at 343, 48 S.Ct. at 197. See also discussion in 60 Am.Jur.2d, Patents, §§ 498-504 (1972) and 32 Am.Jur.2d, Federal Practice and Procedure, § 438 (1967).

This was the purpose of the statute. It was to protect a contractor from liability for infringement of a patent when the contractor manufactured anything for the United States. In such instance the owner’s sole remedy was against the United States and the United States consented to be sued for any such infringement. In the course of interpreting the statute, “owner” was given a broad meaning. Owner means a person who has an interest in the patent as without the statute would support a suit against a defendant other than the United States and does not necessarily mean the owner of the entire rights in the patent. It means a person who has at least such an interest in the patent as without the statute would support a suit against a defendant other than the United States. E. W. Bliss Co. v. United States, 253 U.S. 187, 191-192, 40 S.Ct. 455, 64 L.Ed. 852 (1920). Therefore, it has been held that an exclusive licensee is an owner in the sense that the word is used in § 1498. Wing Engineering Corporation v. United States, 151 F.Supp. 314, 138 Ct.Cl. 260 (1957). And where an entity was not the owner of record of the patent, but only a claimant thereto, the plaintiff was precluded from maintaining suit for infringement in the Court of Claims. N. V. Montan Export-Metaal etc. v. United States, 102 F.Supp. 1016, 122 Ct.Cl. 42 (1952).

Viewing the purposes of the statute relied upon and the interpretations given to it, we do not believe it to be applicable to the facts of this cause. We do not believe that the statute was designed to cover this situation which involves an action for an alleged breach of contract brought by the patentee against his as-signee. In 1961 Bunting assigned all of his rights, title and interest to the patent to McDonnell. This he had the right and power to do. Title 35, U.S.C. § 261 provides, “Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing . An assignment . . . shall be void . unless it is recorded in the Patent Office. . . .” When such an assignment is made, it “ ‘divests the inventor of his rights as though the invention were a chattel [and] he is bound to leave the as-signee free to deal with the invention as he wills.’ ” New Era Electric Range Co. v. Serrell, 252 N.Y. 107, 169 N.E. 105, 106 (1929). “If a patentee assigns his patent, title vests in the assignee; and title carries with it the right to sue infringers.” Sweetwater Rug Corp. v. J. & C. Bedspread Company, Inc., 198 F.Supp. 941 (S.D.N.Y.1961).

Patents and invention rights have the attributes of personal property and are assignable in writing. A written agreement which conveys to the transferee the exclusive right to make, use and sell the invention is an assignment of all interests therein. Kenyon v. Automatic Instrument Co., 160 F.2d 878, 882 (6th Cir. 1947); Doherty Research Co. v. Vickers Petroleum Co., 80 F.2d 809, 812 (10th Cir. 1936); Universal Winding Co. v. Gibbs Machine Co., 179 F.Supp. 394, 398 (M.D.N.C.1959). Such an assignment has been described as a transfer of “all substantial rights of value in the patent.” Bell Intercontinental Corp. v. United States, 381 F.2d 1004, 1010, 180 Ct.Cl. 1071 (1967). Such a transfer of rights to a patent is valid even if the invention is assigned before the patent issues. Lamar v. Granger, 99 F.Supp. 17, 36 (W.D.Pa.1951). After such transfer the assignor is without capacity to bring an infringement action against anyone. Green v. LeClair, 24 F.2d 74, 77 (7th Cir. 1928).

Upon the assignment, Bunting divested himself of all interest and title to the invention and McDonnell became the “owner.” The assignment conveyed the exclusive right to make, use, and vend the entire invention, and therefore we hold McDonnell became the “owner” within the meaning of § 1498.

The instant action is not one against a contractor using an invention in manufacturing items for the United States for infringement of a patent in which case the sole remedy would be in the Court of Claims, but is an action for an alleged breach of contract brought by the paten-tee-assignor against his assignee.

Not every case involving a patent is within the exclusive jurisdiction of the federal system. The general rule is that where a suit is brought upon a contract of which a patent is the subject matter, the case arises on the contract and not under the patent laws, and the fact that the subject matter of the agreement involved patents does not sustain federal jurisdiction. 28 U.S.C. § 1338; Tjaarda v. Briggs Mfg. Co., 121 F.Supp. 189 (E.D.Mich.1954); Reddi-Wip, Inc. v. Lemay Valve Co., 354 S.W.2d 913, 919 (Mo.App.1962); see Wade v. Lawder, 165 U.S. 624, 627, 17 S.Ct. 425, 41 L.Ed. 851 (1897).

McDonnell contends that Bunting’s suit must be against the Government pursuant to § 1498, and while nominally the suit is against McDonnell, it is in reality against the United States. This would be true if Bunting’s claim as owner was for infringement of the patent by a contractor. But his claim is based on allegations of an alleged breach of contract by the assignee, and we do not see how, under the allegations of the petition his suit is against the United States. McDonnell places strong reliance on Evans v. McDonnell Aircraft Company, 270 F.Supp. 778 (E.D.Mo.1967) vacated on other grounds, 395 F.2d 359 (8th Cir. 1968). But that decision is not controlling. There the .patentee-owner sued for infringement of a patent where the material was being used for the United States. The court properly held, under the facts of that case, the sole jurisdiction lay in the Court of Claims. That is not the situation here.

Bunting requests this court to grant him a directed verdict on the issue that under the Patent Compensation Plan he was to receive a percentage of a licensing fee. He contends the issues are clear, the amount of sales is clear, the damages are clear, and hence he is entitled to a directed verdict. This we cannot do. This was not presented to or determined by the trial court. A point not raised in the trial court may not be raised on appeal, and a party cannot request relief on appeal not sought in the trial court. Rule 79.03; State v. Keiter, 394 S.W.2d 399, 401 (Mo.1965).

While there are many complex and involved issues in this protracted litigation, we are confronted with and rule on the only one before us — that the circuit court erred in dismissing the petition for want of subject matter jurisdiction.

Part II

In this court, defendant filed an additional brief wherein it is now contended that (1) the United States is á “necessary and indispensable party” and (2) that such a “fatal defect in plaintiff’s action cannot be cured by reason of the doctrine of sovereign immunity.” The Court of Appeals did not have an opportunity to consider the two points as now posed, for the argument in that court was premised on the idea that “. . . this is actually a suit against the United States . . .” That court, as noted in Part I, properly ruled that plaintiff’s cause of action is one solely against the defendant, i.e., a breach of contract suit between plaintiff as patent assignor/employee and defendant as patent assignee/employer. Can the same be litigated and resolved between the only parties to the contract?

Rule 55.27 (g)(2), in part, provides: “. . . a defense of failure to join a party indispensable under Rule 52.04 . . . may be made ... on appeal” for the first time; and, we consider whether or not the United States is an indispensable party to this litigation. If it is not, any question as to sovereign immunity becomes moot.

The pertinent provisions of Rule 52.04 follow:

(a) Persons to be Joined as Feasible. A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a) (1) — (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.

As the rule is written, part (b) is not activated unless a potential party to the suit fits the requirements of part (a).

Case law contains considerable discussion about what is a necessary and indispensable party, but two examples should suffice. In Ray v. Wooster, 270 S.W.2d 743 (Mo.1954), l.c. 753, the court announced the rule to be that: “[i]n an action on a contract by one of the parties thereto, the only parties defendant who may be necessary are the other parties to the contract sued on, and those who have an interest in the dispute which will be affected by the action.” In State ex rel. Knight Oil Co. v. Vardeman, 409 S.W.2d 672, 677 (Mo. banc 1966), the court said: “We next consider whether the presence of Associates was essential to a ‘complete determination of the controversy.’ We note, first, that ‘the controversy’ means the suit between the relator and the Bank, not some other controversy between one of the parties and an outsider. While the intervention cases are not specifically in point, their definitions of an ‘interest’ which compels intervention are persuasive. In State ex rel. State Farm Mutual Auto Ins. Co. v. Craig, Mo.App., 364 S.W.2d 343, 95 A.L.R.2d 1321, the court said, loe. cit. 346: ‘The petitioner for intervention must have an “interest” in the subject matter of the action. Such interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the interve-nor will either gain or lose by direct operation of the judgment to be rendered. . ’ ” The results reached in the cases cited by defendant are consistent with the two cases noted.

This is a lawsuit on a contract between the only two parties who executed the same. The United States need not participate in the resolution of the dispute which has arisen as to the rights of the parties therein. This is true, even though it might become necessary for the court to decide what, if any, effect the provisions of the earlier contract between defendant and the government had on the contract between the instant parties. Any interest of the United States in this litigation is such a remote possibility, that Rule 52.04 does not call for compulsory joinder.

The judgment is reversed and the cause is remanded.

All concur.

      . The pertinent provision stated, “In consideration of the adoption by McDonnell Aircraft Corporation (MAC) of a patent compensation plan for the benefit of MAC personnel, I agree that all inventions relating directly or indirectly to the business or research of MAC as existing at the date of conception or first actual reduction to practice thereof, including ajjparatus, machinery, and manufacturing processes usable in connection therewith, conceived or first actually reduced to practice, solely or jointly by me during my employment and within six months thereafter, shall be disclosed to and become the property of MAO, and I shall assist in vesting good title in MAO and in obtaining patents, renewals, reissues and extensions thereon. I have not made any such inventions prior to the date of my employment at MAO except the following, a complete disclosure of which is attached hereto (if none, so indicate) . . . NONE X.”

      . McDonnell asserts that the beam-splitting device was invented in connection with contract No. 60-0134-r entered into in 1959 and with the development of aircraft for the Government. Under Government regulations relating to Government contracts McDonnell is required to “grant to the Government an irrevocable, nonexclusive, nontransferable, and royalty-free license to practice, and cause to be practiced by or for the United States Government, throughout the world, each Subject Invention in the manufacture, use and disposition according to law, of any article or material, and in the use of any method.”
      On March 5, 1963, two years after Bunting assigned his invention to McDonnell, McDonnell granted a “Confirmatory License” to the United States. The License granted a “non-exclusive, irrevocable, non-transferable, royalty-free license to practice, and cause to be practiced for the GOVERNMENT, throughout the world, in the manufacture, use, and disposition according to law, of any article or material, and in the use of any method, each invention disclosed in the following : Title: Beam Splitting Device.

      . Bunting cites this decision as being “exactly the situation here.” It is not since the plaintiff in Montan was the assignee attempting to bring suit in the Court of Claims and was not the record owner of the patent because his assignment was not recorded in the patent office.


author: BROCK, Justice.

text:
    Pauline REAMS, Appellant, v. TROSTEL MECHANICAL INDUSTRIES, INC., Appellee.
    Supreme Court of Tennessee.
    April 7, 1975.
    L. L. Harrell, Jr., Harrell & Harrell, Trenton, for appellant.
    Red Collins, Flippin & Collins, Milan, for appellee.
   OPINION

BROCK, Justice.

This is a proceeding under the workmen’s compensation act.

The injured employee filed her complaint on May 21, 1971, alleging that on July 2, 1970, she received injuries by accident arising out of and in the course of her employment and that such injuries caused her to suffer disabilities for which she was entitled to recover benefits under the workmen’s compensation act. Thereafter, on August 12, 1971, the employer filed its answer. When the case came on for trial on October 3, 1972, the parties announced to the court that they had entered into a compromise settlement agreement, which they wished to submit to the court for approval, whereby the employer agreed to pay and the employee agreed to accept in full compromise and settlement of her claim a lump sum payment in the amount of $12,267.00, consisting of $9,400.00, representing benefits for 200 weeks at the rate of $47.00 per week for 50 percent permanent partial disability of the body as a whole, and the sum of $2,867.00, representing benefits for 61 weeks of temporary total disability at the rate of $47.00 per week. Thereupon, the court conducted a hearing, and determined that the proposed compromise settlement was fair and reasonable, and entered a decree adopting and approving the same. Said decree, in pertinent part, provides:

“THIS CAUSE CAME ON TO BE HEARD on this the 3 day of October, 1972, upon the Complaint and Answer heretofore filed when the parties appeared by and through their Attorneys of Record and advised the Court that all facts and matters in controversy had been fully compromised and settled between themselves, subject to the approval of this Honorable Court.
“This cause then came on further to be heard on the medical depositions, being depositions from Dr. David Sisk of Campbell’s Clinic, Dr. Joseph P. Rowland of Semmes-Murphy Clinic and Dr. Robert J. Barnett, and testimony heard in open Court and from all of which it satisfactorily appeared to the Court that the compromised settlement of this matter heretofore entered into between the parties under which the employee will be paid permanent partial benefits to be based on SO percent permanent disability to the body as a whole is fair and reasonable and should be approved.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“THEREFORE BE IT ORDERED AND ADJUDGED that the compromised settlement of all matters and (sic) controversy in this cause which was heretofore entered into by the parties and subject to the approval of this Honorable Court, is hereby confirmed, ratified and approved and upon the Defendant paying to the Plaintiff, the employee, the sum of $12,267.00, same being permanent partial benefits in the amount of $9,400.00 and temporary total benefits and (sic) the amount of $2,867.00, and the medical expenses referred to herein, the defendant will fully discharge its responsibilities to the Plaintiff for the injuries complained of in this cause under the Workmen’s Compensation Act of the State of Tennessee.”

In due course the defendant paid the amounts stipulated in said judgment.

On June 6, 1973, the employee filed another complaint alleging that since the settlement and compromise judgment entered on October 3, 1972, she had suffered an increase in her incapacity and disability resulting from the injury so that she now suffers permanent and total disability and praying that the decree entered on October 3, 1972, be modified and that she be awarded additional benefits for her increased incapacity equal to 50 percent permanent disability of her body as a whole. The defendant responded with its answer and a motion to dismiss and a motion for a judgment on the pleadings. After a hearing on the motion for a judgment on the pleadings, the court granted said motion and dismissed the complaint seeking modification, holding that “this workmen’s compensation case cannot be reopened for modification of the award and the complaint heretofore filed by Pauline Reams on June 6, 1973, should be dismissed and the court hereby awards the defendant a judgment on the pleadings.” The employee has appealed to this Court asserting that the trial court erred in dismissing her complaint seeking to reopen and modify the decree entered October 3, 1972.

The controlling statutory provisions are found in T.C.A. §§ 50-1006 and 50-1025. In summary, T.C.A. § 50-1006 provides that the parties shall have the right to settle all matters of compensation between themselves, but that before such settlements shall become binding on either party, they shall be reduced to writing and approved by the trial court; that, upon presentation of a proposed settlement, the trial court shall examine the same to determine whether under its provisions the employee is receiving, substantially, the benefits provided by the workmen’s compensation law; that to this end the court may call and examine witnesses; that upon approval by the court judgment shall be rendered ratifying such settlement; that within ten days after entry of said judgment all the papers in the case, including the judgment, shall be forwarded to the Division of Workmen’s Compensation of the Department of Labor by the employer; and that in the event said court approved settlement does not secure to the employee in a substantial manner the benefits of the workmen’s compensation law, the same may, in the discretion of the trial judge, be set aside at any time within 30 days after receipt of such papers by the Division of Workmen’s Compensation upon application of either the employee or the superintendent of the Division of Workmen’s Compensation of the Department of Labor.

T.C.A. § 50-1025 provides:

“All amounts paid by employer and received by the employee or his dependents, by lump sum payments, shall be final, but the amount of any award payable periodically for more than six (6) months may be modified as follows:
(a) At any time by agreement of the parties and approved by the court.
(b) If the parties cannot agree, then at any time after six (6) months from the date of the award an application may be made to the courts by either party, on the ground of increase or decrease of incapacity due solely to the injury. In such cases the same procedure shall be followed as in § 50-1018 in case of disputed claim for compensation.”

The employee relies upon subparagraph (b) of T.C.A. § 50-1025 as authority for reopening and modifying the decree entered October 3, 1972, approving and adopting the lump sum settlement agreement of the parties.

The employer relies upon the provision in T.C.A. § 50-1025 that:

“All amounts paid by employer and received by the employee or his dependents, by lump sum payments, shall be final, . .

The employee contends that the provision of T.C.A. § 50-1025 that all amounts paid by the employer and received by the employee by lump sum payments shall be final has been repealed by implication by the later enacted provisions of T.C.A. § 50-1006, hereinabove summarized.

In support of this contention, the employee relies upon the decision of this Court in Bledsoe County Highway Department v. Pendergrass, 205 Tenn. 697, 330 S.W.2d 313 (1959), wherein it is said that T.C.A. § 50-1006 “is clearly a repeal by implication of [T.C.A. § 50-1025] with reference to the first part of same providing that lump sum payments shall be final.” We think the reliance upon Bledsoe County Highway Department is misplaced. A question quite different from the one here presented was decided in that case, and it does not stand for the proposition that the provision of T.C.A. § 50-1025 that lump sum payments of compensation benefits shall be final is completely repealed by implication by the later enactment of the provisions of T.C.A. § 50-1006, hereinabove summarized. It does hold, and correctly so, that T.C.A. § 50-1025 was repealed by implication insofar, only, as its provisions would prohibit the setting aside of judgments approving compromise lump sum settlements of compensation benefits upon the terms and pursuant to the procedures set out in T.C.A. § 50-1006, hereinabove summarized.

In the Bledsoe County Highway Department case the widow of the deceased employee and the employer had entered into a compromise settlement, which was approved by the trial court, whereby she received the total sum of $1,351.60 for the death of her husband. The settlement was disapproved by the Division of Workmen’s Compensation, Department of Labor, and the widow was so informed on October 10, 1958. Within 30 days of such disapproval, the widow filed her petition seeking to set aside the court approved lump sum settlement under the provisions of T. C.A. § 50-1006. The employer defended her application upon the ground that the lump sum settlement was rendered final by T.C.A. § 50-1025. The trial court, after an evidentiary hearing, set aside the lump sum settlement as being inadequate and made an award of the death benefits provided by the workmen’s compensation act. Upon appeal, this Court affirmed the trial court. In its opinion the Court stated:

“The widow in this case proceeded exactly in accordance with the provisions of T.C.A. § 50-1006.”

In dealing with the employer’s insistence that the lump sum settlement to the widow was rendered final by T.C.A. § 50-1025 and, therefore, could not be set aside, the Court held that the trial court was vested with authority to set aside said lump sum settlement by provisions of T.C.A. § 50-1006 and that these provisions constituted a repeal by implication of T.C.A. § 50-1025 “with reference to the first part of same providing that lump sum settlements shall be final.” The statement in the opinion regarding the repeal by implication of T. C.A. § 50-1025 must not be lifted out of context and given a broader meaning which was clearly not intended. We construe the opinion to mean that the provision of T.C.A. § 50-1025 that all lump sum payments of compensation shall be final is repealed by implication to the extent, only, that it conflicts with the later enacted provisions of T.C.A. § 50-1006 allowing a lump sum settlement to be set aside if application is made to the trial court within 30 days after receipt by the Division of Workmen’s Compensation of the judgment approving the compromise settlement and the other papers in the case, and if a showing is made that the settlement does not secure to the employee in a substantial manner the benefits of the workmen’s compensation law. As thus understood, we reaffirm the decision in the Bledsoe County Highway Department case. Repeals by implication are not favored and a later act, if repugnant and irreconcilable on a particular point with a prior act, will operate as a repeal by implication of such prior act only to the extent of such repugnancy and conflict. Southern Construction Co. v. Halliburton, 149 Tenn. 319, 258 S.W. 409 (1924). Therefore, we hold that the provision of T.C.A. § 50-1025 that “all amounts paid by employer and received by the employee or his dependents, by lump sum payments, shall be final, . . . ” was impliedly repealed by T.C.A. § 50-1006 only to the extent that it is in conflict with the latter section and that it in all other respects remains in full force and effect.

In the case at bar, it is obvious that the employee does not present a case coming within the provisions of T.C.A. § 50-1006. Her complaint seeking to set aside and modify the decree of October 3, 1972, which approved the lump sum settlement of $12,267.00, was not filed within the 30 day period prescribed by T.C.A. § 50-1006 but was filed more than eight months after the entry of said compromise judgment. It is also clear that her complaint is not authorized by T.C.A. § 50-1025 (b) because the decree which she seeks to set aside is not an “award payable periodically for more than six months . . . .” What she seeks to set aside is a “lump sum payment” which T.C.A. § 50-1025 declares shall be final.

Since the employee’s complaint does not fall within the provisions of either T.C.A. § 50-1006 or T.C.A. § 50-1025(b), it necessarily follows that her attempt to set aside the lump sum settlement approved by the decree of October 3, 1972, is prohibited by the finality provision of T.C.A. § 50-1025. See: Hay v. Woosley, et al., 175 Tenn. 475, 135 S.W.2d 933 (1940).

The decree of the trial court sustaining the motion of the employer for a judgment on the pleadings is affirmed and the complaint dismissed with all costs incident to the appeal adjudged against the appellant.

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


text:
    EMPLOYERS INSURANCE OF WAUSAU and Ivers and Pond Piano Co., Appellants, v. Lillie E. CARTER, Appellee.
    Supreme Court of Tennessee.
    March 31, 1975.

      James F. Russell, Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Fred E. Ivy, Jr., Memphis, for appellants.
    Louis P. Chiozza, Jr., Memphis, for ap-pellee.
   OPINION

BROCK, Justice.

This is an action under the workmen’s compensation act brought by the employer and its insurance carrier against the employee to determine the rights of the parties respecting a claim by the employee for workmen’s compensation benefits.

It is undisputed that the employee suffered an injury by accident arising out of and in the course of her employment with the employer. The trial court found the disputed issues in favor of the employee and awarded to her benefits for temporary total disability for a period of six weeks and one day and medical expenses in the sum of $1,500.62.

Appellants contend that the trial court erred in allowing the employee to recover certain medical expenses alleged to have been “incurred by her outside the scope of T.C.A. § 50-1004.” The argument is that there is no liability because appellants did not authorize the appellee-employee to seek the services of Dr. H. B. Blumenfeld, Dr. D. E. Snyder, Dr. John D. Huffman, Dr. R. A. Utterback, the Duckworth Pathology Group, and Methodist Hospital. Liability for the sum of $57.43 spent for drugs and medicine is also denied upon the same theory.

When appellee reported her injury and requested medical care, the employer sent her for treatment to the “company doctor,” Dr. Horton G. DuBard. Appellee was suffering much pain and both her arms were swollen due to tendinitis and muscle sprain in each arm. Appellee’s experience as a patient of Dr. DuBard was very unsatisfactory to her. Thus, the trial court found:

“It does appear that Dr. DuBard did not regard defendant’s complaint as of any great consequence, having spent only about five minutes with her, according to his testimony. It further appears that it was only under the more extensive treatment administered by the other specialists that she obtained relief and was able to return to work.”

We concur in that finding. Dr. DuBard prescribed a muscle relaxant which caused appellee to suffer nausea. Being dissatisfied with Dr. DuBard, appellee reported her dissatisfaction to her superintendent, Mr. Brasher, and requested that the employer refer her to another physician of its choice. Her request was refused, and she then sought the services of her family physician, Dr. Leon Bourland, who, in turn, referred her to Dr. Snyder, a neurosurgeon. Appellee testified as follows:

“Q. But you told them you needed further medical help ?
“A. That’s right, I did.
“Q. Why were you seeking another doctor, Mrs. Carter? You had just been to Dr. DuBard.
“A. Well, because Dr. DuBard didn’t examine me, and he didn’t help me any, and the medicine he give me made me nauseated.”

We are of the opinion that there is adequate evidence to support the finding of the trial court that the appellants are liable for the medical expenses in issue. T.C.A. § 50-1004 provides:

“. . . the employer . . . shall furnish free of charge to the employee such medical and surgical treatment, medicine, . . . and hospitalization, . as may be reasonably required. . The injured employee shall accept the medical benefits afforded hereunder; provided, that the employer shall designate a group of three (3) or more reputable physicians or surgeons from which the injured employee shall have the privilege of selecting the operating surgeon or the attending physician; . . . .”

This statute authorizes the employer to choose a panel of three physicians, but the employee is given the privilege to make the final choice of the attending physician from the panel of three. The employer did not furnish the employee with a panel of three or more physicians from which she could choose one. We need not attempt to decide whether in every conceivable instance the failure of the employer to furnish the panel of three physicians to the employee will operate to render the employer liable for expenses of physicians chosen by the employee, but certainly an employer who thus fails to follow the statute runs that risk. Referring the employee to a single physician does not comply with the statute; it is an usurpation of the privilege of the employee to choose the ultimate treating physician. See: Holston Valley Community Hospital v. Dykes, 205 Tenn. 336, 326 S.W.2d 486 (1959). An employer who would claim the benefits of the statute should, himself, be required to comply with it. Likewise, the employee must comply with this statute if he is to be entitled to receive its benefits. The trial court has found that the employee did comply; and we concur. She reported to the employer and requested proper medical care. She even submitted to treatment by the company physician although she was given no choice of three physicians from which to choose. This company physician proved unsatisfactory, as found by the trial court from adequate evidence. She again consulted the employer and requested further medical care which was obviously necessary, but she was refused. Considering all of the circumstances, we hold that, thereafter, she was justified in seeking medical care of her own choosing for which the non-complying employer is liable. See: Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S.W.2d 13 (1956); Atlas Powder Co. v. Grant, 200 Tenn. 617, 293 S.W.2d 180 (1956).

The decree of the trial court awarding the sum of $168.50 as a reimbursement for payments made to Dr. H. B. Blumenfeld should be reduced to the sum of $93.50 because $75.00 of the awarded amount was paid to the doctor for his services in rendering a medical report and in giving a deposition. The statute does not burden the employer with liability for such expenses. American Casualty Ins. Co. v. White, 207 Tenn. 294, 339 S.W.2d 15 (1960).

The trial court did not err in permitting, over the objections of appellants, Dr. Snyder to testify regarding the necessity for treatment by Dr. Utterback, Dr. Huffman, the Duckworth Pathology Group, and Methodist Hospital and regarding the reasonableness of their charges. As a physician who was familiar with the extent and nature of the treatment rendered to the appellee by said physicians and hospital, Dr. Snyder was a competent witness to testify regarding the necessity for such treatment and the reasonableness of the charges made therefor. See: Wheeler v. Crain, 62 Tenn.App. 126, 459 S.W.2d 618 (1970). Such testimony does not violate the hearsay evidence rule.

The final insistence of the appellants is that the trial court erred in deciding the case without allowing counsel for appellants the opportunity of presenting oral argument at the conclusion of all the proof. The conclusion which we draw from the record is that the trial judge, at the conclusion of the introduction of evidence, proposed to take the case under advisement, read certain depositions and then notify counsel of a time at which they could present oral arguments. Apparently the trial judge forgot to notify counsel of a time for hearing arguments and proceeded to decide the case without argument. The record does not show that counsel called this oversight to the attention of the trial judge; therefore, we conclude that the right to make oral argument was waived. Rules of the Supreme Court of Tennessee, Rule 14(4); Moran Towing and Transportation Company v. Conners-Standard Marine Corporation, 285 F.2d 368, 86 A.L.R.2d 1227 (2d Cir. 1961); Boucher v. Roberts, 187 Kan. 675, 359 P.2d 830 (1961).

The decree of the trial court will be modified by reducing the amount awarded for Dr. Blumenfeld’s bill from $168.50 to $93.50; in all other respects the decree of the trial court is affirmed. All costs are adjudged against the appellants.

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