author: JAMES H. KEET, Jr., Special Judge. CHARLES V. BARKER,

text:
    In Re the Marriage of Sharon K. KORN, Appellant, v. Michael B. KORN, Defendant.
    No. 10771.
    Missouri Court of Appeals, Southern District, Division One.
    June 29, 1979.
    L. Thomas Elliston, Elliston & Webster, Webb City, for appellant.
    Phillip A. Glades, Joplin, for respondent.
   JAMES H. KEET, Jr., Special Judge.

Appeal from judgment entered July 27, 1977, transferring custody of the parties’ only child, Travis (age 6 at time of trial on July 26, 1977), from appellant (the mother, Sherry) to respondent (the father, Mike) and awarding her right of reasonable visitation and three months’ summer temporary custody.

Review is under Rule 73.01 as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The parties’ first marriage ended in divorce in 1972, Sherry then being awarded custody. Their second marriage (the record does not show its date) was dissolved August 13, 1975, Sherry being awarded custody and the right to remove Travis to California and Mike being awarded right of reasonable visitation and two months’ summer custody each year.

Shortly thereafter Sherry, with Mike’s agreement, took Travis to California where they saw Mike Mitchell, whom Sherry then married. On September 21, 1975, Sherry went to Saudi Arabia with Mitchell and, again with Mike’s consent, took Travis with her. On November 4, 1975, separated from Mitchell, she returned and moved in with her mother for ten days and then got a job at a poultry processing plant in Monett, where she and Travis lived with a Debbie Garrett and her child.

In February and March, 1976, Sherry and Travis were ill and Sherry was in financial difficulties because she had had to replace certain clothing and housewares and bought a car and Mike had not timely paid the $15 per week child support set by the court. In April 1976, Sherry, giving Mike to believe she was going back to Saudi Arabia, entered the U. S. Army to have the security of a steady job and medical benefits for her and Travis. Her adopted father had been a career military person. She left Travis with her mother until she completed basic training. Several weeks later her mother turned Travis over to Mike, who had remarried in December 1975.

Mike at once filed his motion to modify, asking transfer of custody. Upon Sherry’s return from basic training in May 1976, he filed and served on her a motion for temporary custody and refused to let her have custody of Travis. Travis remained with Mike and his new wife, Lynn (with whom he had lived for three months before their marriage), until December 1976. He then began a stay with Sherry and her new. husband, Sgt. Getty, a career soldier. Travis was with them in South Carolina (where they were stationed) until April 1977.

The trial court found that each party loved Travis and was “capable of providing an adequate home”; that petitioner was a restless, aggressive personality and Mike rather calm and phlegmatic; that Travis had had some nervous problems brought on by unstable conditions under which he had lived since the dissolution; that Sherry had led a “very unstable life” but her enlistment in the Army “was a very positive step” which could lead to a great deal more stability in her life, provided her present marriage is successful; and' that Lynn was a good mother and with Mike was in a position to provide Travis a home where he has a father and mother and a little brother (Lynn’s son by another marriage, named Paul, age 4 at time of trial, with whom Travis got along very well). Concluding that Travis “at the present time is very much in need of a calm, stable environment, and that this can best be provided by the Respondent,” the court ordered Travis placed in Mike’s custody and expressed the hope that by May 1978 “Travis will have matured and settled down enough that he can handle the change [to the summer custody awarded Sherry] without psychological disturbance.”

Respondent had the burden of showing that facts arising since the prior decree had given rise to a change in circumstances of the child or his custodian and that a modification was necessary to serve the best interests of the child. § 452.410. The party originally awarded custody is pri-ma facie capable of having custody. Randle v. Randle, 560 S.W.2d 876 (Mo.App.1977). Compare Commissioners’ Note to § 409, Uniform Marriage and Divorce Act. The trial court’s judgment will not be set aside unless it is against the weight of the evidence or wrongly declares or applies the law. In re the Marriage of B-A-S-, 541 S.W.2d 762 (Mo.App.1976). This court has a duty to reach its own conclusion based on the law and the evidence and enter such judgment as the trial court should have entered. In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975). The trial court’s decision should not be disturbed unless the best interests of the child require a different disposition. In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975).

The respondent urged at trial that he had remarried (such alone is not sufficient — In re Marriage of Cook, 532 S.W.2d 833, 836 (Mo.App.1976) and was able to provide Travis with a stable home life. These changes in his circumstances may be considered even though § 452.410 provides that the court may not modify a prior custody decree unless it finds that a change has occurred in the circumstances of the child or his custodian. Randle, supra, 560 S.W.2d at 878.

Appellant insists that the trial court’s decision was against the weight of the evidence and wrongly applied the law. We disagree.

Stability of the child is an important factor to be considered in deciding custodial issues. L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976); Cook v. Lodes, 560 S.W.2d 64, 67 (Mo.App.1977); In re Marriage of Roedel, 550 S.W.2d 208 (Mo.App.1977); Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975); Commissioners’ Note to § 409 of Uniform Marriage and Divorce Act. The trial judge acted within his discretion in relying primarily on this factor. His conclusion that Travis at trial time very much needed a calm, stable environment and that such could be best provided by respondent is supported by credible evidence, even though there was credible evidence that would support a contrary conclusion. Travis was in the custody of respondent and his wife a majority of the time after Sherry’s mother turned Travis over to respondent. When Travis first came to live with respondent and his wife Travis was insecure and had problems controlling his bowels and was unable to sleep well. These problems cleared up after Travis had lived with respondent and did not recur until subsequent contact with appellant. Travis was doing well in school at Carthage and had the opportunity of visiting with his maternal grandmother and the paternal grandparents. If permanent custody were switched to appellant, Travis would be transferred from respondent’s extensive custody and uprooted from the continuity of the stable environment in which he has been since April 1976.

Appellant relies greatly on Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974), In re Marriage of B-A-S-, supra, and In re Zigler, 529 S.W.2d 909 (Mo.App.1975), characterized in Shannon v. Shannon, 550 S.W.2d 601, 604 (Mo.App.1977) as “an exceptional case.” These cases lend substantial support to appellant’s position. However, they are distinguishable in a number of respects, and do not persuade the court that it should reverse.

We recognize (as ably argued by appellant’s counsel) that the pattern of custody following the dissolution, agreed to by respondent, should not lightly be disregarded (B-A-S-, supra, 541 S.W.2d at 768; Zigler, supra); that interference with visitation rights (there was evidence that Mike interfered when Sherry returned from basic training) is an important factor (Randle, supra, 560 S.W.2d at 879; RLS v. JES, 522 S.W.2d 5 (Mo.App.1975); B-A-S-, supra); that the presumption in favor of the mother is important as a factor to be weighed (R-G-T- v. Y-G-T-, 543 S.W.2d 330, 331 (Mo.App. 1976); Pearson v. Pearson, 575 S.W.2d 934 (Mo.App.1978)); and that appellant, originally awarded custody, is prima facie capable of having custody (Randle, supra; Klaus, supra); and that a parent who turns a child against the other parent may be denied custody (B-A-S-, supra, 541 S.W.2d at 768-769).

We presume, and are persuaded from a close study of the transcript, that the trial court studied all of the evidence and decreed custody in the manner it believed would be best for Travis, L.H.Y. v. J.M.Y., 535 S.W.2d 304, 306 (Mo.App.1976); Kanady v. Kanady, 527 S.W.2d 704, 708 (Mo.App.1975). We give due regard to its opportunity to evaluate intangibles which do not appear in the record (In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975)). We are not convinced that the trial court’s decree was against the weight of the evidence or wrongly applied the law or that the best interests of the child call for a different disposition.

The nature of the case and the considerable evidence in appellant’s favor make our decision “difficult and soul-searching,” as in our In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). Our review, including a consideration of the extent to which we should defer to the trial judge’s findings and decision in this case, persuades us that his action should be affirmed. As stated in Moore v. Moore, 429 S.W.2d 794, 797 (Mo.App.1968):

“In child custody cases the trial judge rarely enjoys the luxury of deciding between a good choice and a bad one. More often he must make a decision between two poor choices or, almost as difficult, between two satisfactory choices. His decision is often influenced by the character of the parties and by their witnesses — factors more apparent to him than to us.”

The judgment is affirmed.

FLANIGAN, C. J. and TITUS, J., concur.

CAMPBELL, Special Judge, concurs.

BARKER, Special Judge, dissents (dissenting opinion filed).

HENRY, Special Judge, concurs.

CHARLES V. BARKER,

Special Judge.

I respectfully dissent. I have no disagreement with the law as declared in the majority opinion, nor do I disagree with the facts recited therein. However, I feel that several additional facts should be considered as will be noted herein. My disagreement is principally with the conclusions reached. Conclusions that I feel are not supported by the evidence or the law.

As noted in the majority opinion these parties have been married and divorced on two occasions, and on both occasions custody of the child was awarded to appellant, apparently with the consent of respondent. That being so, if respondent wanted to obtain a modification of the decree whereby custody of the child was to be transferred to him, it was necessary for him to plead and prove a change of circumstances that would require or justify removing the child from the custody of appellant and placing the custody with him. I feel that respondent has totally failed to either plead or prove such change of circumstances.

The motion to modify alleges the following change of circumstances upon which respondent relies in seeking a modification:

5. That since the entry of the original decree of dissolution in August of 1975, the circumstances of the parties have changed as follows:
a. Petitioner has re-married and can provide the child with a two parent home.
b. Petitioner’s present wife, Lynn L. Korn, desires to and is willing to care for the aforementioned child.
c. Petitioner owns a mobile home suitable for the need, comfort and joy of the said minor child.
d. [Appellant], Sherry K. Korn, has joined the Armed Services of the United States and her current whereabouts are unknown.
e. The said minor child is now living in the care and custody of petitioner Michael B. Korn and desires to reside with him.

There is no allegation that the best interest of the child would be served by granting a modification.

As noted in the majority opinion, that while the fact that respondent had re-married and can provide the child with a two parent home may be considered, it is not sufficient to justify modification. It is to be noted in passing that appellant has also re-married and is able to provide a two parent home.

I know of no authority holding that the claimed change of circumstances set out in sub-paragraphs b and c, if true, is sufficient to modify a decree.

The claimed change alleged in sub-paragraph e, while a matter to be considered, can hardly amount to a change of circumstances justifying a modification, particularly in view of the fact that the child was only six years of age at the time of the trial.

The only claimed change of circumstances that could possibly be interpreted as alleging facts that would justify a modification is sub-paragraph d. The allegation that appellant has joined the armed services alone is hardly sufficient to justify a modification in the absence of further allegations as to how the child could be adversely affected. It is common knowledge that literally thousands of parents are in the armed services and so far as I am aware no court has ever held that this in any manner renders them unfit parents, or that it is detrimental to the best interest of the child.

The allegation that appellant’s current whereabouts is unknown, without further allegations as to how the child is adversely affected or some showing that appellant was deliberately concealing herself or failing to provide care for the child, would likewise, in my opinion, fail to allege any change of circumstances justifying a change of custody.

It is to be noted that the motion to modify fails to allege a single instance where the child has been mistreated, abused, neglected, abandoned or in any manner mistreated or that appellant’s circumstances have in any manner changed so that the best interest of the child require the modification sought.

However, if we assume that the motion was sufficient, it is my opinion that the evidence was wholly insufficient to justify the modification.

As stated in the majority opinion, with which I agree, the law is that the party originally awarded custody is prima facie capable of having custody. This should have even more cogent force in this case where custody was placed in the appellant on two separate occasions, the last time as a result of a joint petition filed by appellant and respondent. The majority opinion also notes that § 452.410 RSMo 1969' requires that the person seeking the modification has the burden of showing facts arising since the prior decree has given rise to a change of circumstances of the child or his custodian and that a modification was necessary to serve the best interest of the child. The courts have also squarely held that in order to modify a custody decree, the court must find.: (1) facts arising since the prior decree have given rise to a change in circumstances of the child, or his custodian and (2) modification is necessary to serve the best interest of the child. Cook v. Lodes, 560 S.W.2d 64 (Mo.App.1977).

In this case the court requested the Missouri Division of Family Services to make a home study of both appellant and respondent. At the beginning of the hearing the parties, through their attorneys, stipulated that each home study reflected a good home and the court, in its findings, concluded that the parties conceded that the homes of both parties are suitable homes.

There is no credible evidence throughout the transcript that appellant did not have a good home for the child, or that she had ever abused, mistreated, or neglected him. Indeed, in response to a direct question, “Do you have any reason to believe Sherry would not be a proper person to have custody of this child?” respondent answered, “To my knowledge, the only reason is reactions that he had had when we have had him and she comes to get him and takes him back.” These reactions were that he appeared mixed up after a visit with his mother and that he resumed messing his pants. Yet, respondent admits that Travis had had this problem for a long time, in fact, since he was old enough to start potty training some time before the divorce and that their doctor had informed them that some children had this problem but would outgrow it.

The transcript is totally barren of any evidence that appellant was any more the cause of this condition than respondent, or that the visits with appellant were more upsetting than having to return to respondent. The majority opinion in fact notes that the evidence is not persuasive that appellant’s conduct caused whatever nervous condition Travis may have had.

The record also reflects that appellant had never denied respondent his visitation rights except during the time he was admittedly living out of wedlock with the person who is now his wife, and, in fact, appellant saw to it that the child not only could visit his father, but also his paternal grandparents.

On the other hand it seems to me that the conduct of respondent had left much to be desired.

He admittedly lived with his present wife, out of wedlock, from the month following the divorce until his marriage some months later. This conduct was in the presence of the small child of respondent’s present wife and, while she may now be providing the proper care for the child, it is understandable how appellant is upset about having the care of her son entrusted to a woman who has participated in such an arrangement. It is further undisputed that respondent and his wife do not attend church and are not providing any religious training for the child.

The evidence further shows that respondent complained about appellant having many debts and that she joined the armed services to escape the debts. This complaint has an exceptionally hollow ring when the facts disclose that respondent did not keep his rather small child support payments current and that appellant, in fact, was compelled to have his wages garnished in order to collect the child support.

But perhaps the most serious misconduct of respondent is that he permitted or participated in conduct detrimental to the rights of the mother. On occasion the mother was denied the right to talk to Travis on the telephone; on at least two occasions the paternal grandmother (who has sued appellant and in turn been sued by appellant) inquired of the child as to with whom he wanted to live. Respondent has denied her visitation with the child. A particularly revealing example is shown by the following testimony of appellant, which was not refuted and stands undisputed.

“Q. Have they ever prevented you from talking to Travis on the phone?
A. On many occasions.
Q. Sherry, there has been some mention and testimony made about Travis not being allowed to kiss you except through a screen door, do you recall that incident?
A. Yes, sir, I do very well.
Q. Would you tell the court about this?
A. I was — on a Wednesday I flew home and I was told, I called Tom’s office because he was making the arrangements for me and they said I could pick up Travis that evening. Okay, I arrived in Carthage at about 5:00 or 6:00, and it was winter and I went over to Mick’s house and I knocked on the door and it took about ten minutes for them to open it and I heard them say, ‘Boys, go in the other room.’ Okay, so Mick came to the door and he opened it. I said, ‘I’m here to pick up Travis.’ He said, ‘You don’t love him. You don’t care for him. Why don’t you just leave?’ I said, T demand to see my son.’ He said, ‘You don’t love him. Just leave.’ I said, T want to see my son.’ And he wouldn’t let me, so I left. I went home. I went to Jeanette’s house. I called my husband and told him what happened. He said go back there and take a witness so he can’t say you weren’t there. So I did exactly that. Jeanette went with me, Jeanette Hodson. I stood to the side of the door. I didn’t feel he would open the door if he saw me there. He opened the door and I stepped in front. He said, ‘What are you here for?’ I said, ‘I’m here for the same reason I was awhile ago, to pick up my son. I was told I could pick him up when I got here and J want him now,’ and he wouldn’t even let me see him. He said, ‘You don’t have any business here. You don’t love him. Why don’t you leave?’ I said, ‘I want to see my son and I am not leaving until I see him,’ and finally Jeanette spoke up and she said, T am a witness to the fact that you are not letting her see him,’ and at that point he said, ‘Well, she can see him’ and he let Travis come to the screen door and I said, ‘Come here,’ and the screen door was locked and he couldn’t even come and kiss me, so then I asked him, I said, ‘Do you want to kiss Momma?’ and he said, ‘Yes.’ I said, ‘Would you unlock the screen so he can kiss me?’ and he said, ‘No, he’s not coming out.’ And so I kissed him through the screen door and I said I loved him and I would come back tomorrow.”

This conduct on the part of the respondent, in my opinion, is sufficient to show that the best interest of the child would not be served by granting the modification and in fact is a compelling reason why custody should be left with appellant.

The trial court found that “respondent’s grounds for modification can be summed up in two general changes, one, that respondent has now re-married and is able to provide the child with a stable home life whereas, two, [appellant] has failed to provide a stable home life for the child.”

The court specifically found that for “some six or eight months after the dissolution the [appellant] led a very unstable life. However, the court regards her enlistment in the Army as a very positive step and, provided her present marriage is successful, it could lead to a great deal more stability in her life.” This is hardly persuasive that appellant’s home, some year and a half later, is now unstable.

There is not one word of testimony that appellant does not now have a stable home where the child could live with his mother and step-father and half-sister.

The trial court, from observation of the parties, arrived at the conclusion that appellant has a restless, aggressive personality whereas respondent appears to be calm and phlegmatic. There is no testimony or evidence in the case upon which this conclusion could be based, and the matter is far too serious for a decision to be based in part on conclusions drawn by observing two people for a short time when both were obviously under stress. Outward appearances are often deceiving and the prevailing party should have something more substantial than who is the better actor or actress, or who can better withstand the stress with an outward appearance of equanimity.

However, if it be assumed that the conclusion is correct, there is no showing that the temperament of the parties have not always been the same and certainly no showing of any change in temperament of appellant.

Whatever the accuracy of the assessment of the situation made by the able and conscientious trial judge, the fact remains that the clear dictates of § 452.410 RSMo and the prior case law have not been met.

It is my opinion that the respondent failed to allege or prove any change of circumstance of the child or of his custodian or that any modification is necessary to serve the best interest of the child. Granting the modification without this showing is not permissible and would, in effect, be allowing the court hearing the motion to modify to substitute its judgment for the judgment of the court granting the original decree.

Upon the record now before us, I would reverse the decision of the trial court, leave custody with the appellant, and order the petition dismissed.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . The record being ample, we do not see fit to remand even though it is possible that substantial and material changes of condition may have occurred since time of trial (Cf. B v. L, 558 S.W.2d 738 (Mo.App.1977); J-G-W- v. J-L-S-, 414 S.W.2d 352 (Mo.App.1967) and the trial court did not order the welfare office or juvenile officer to exercise continuing supervision over the case pursuant to § 452.405 (Cf. J-A-F-v. P-J-F-, 552 S.W.2d 739, 741 (Mo.App.1977).

      . Pursuant to a stipulation for modification made after Sherry married Mitchell granting Sherry the right to remove Travis from Missouri, “to any other state within or without the continental United States” and Mike two months’ summer custody each year, with Sherry to bear the cost of transporting Travis to and from Mike’s residence. The record does not show filing of the stipulation or any court action on it. Mike testified Mitchell “was a very reputable person and I assumed that he would be good to Travis.”

      . He alleged only his remarriage; a suitable home; Sherry’s joining the armed forces, her whereabouts being unknown; and Travis’ desire to continue to reside with Mike. The case was tried, in large measure, on his contention, made at trial, that Sherry was not a fit mother and that Travis had lived with her under unstable conditions.

      . A docket entry of December 8, 1976, reflects appearance of the parties and their attorneys and continuance of the hearing on the motion to modify pending home studies ordered that date by the court. The record is not express as to how it happened that Travis went to South Carolina, but it may be inferred that it was by agreement of the parties. Each home study “reflected a good home.”

      . The evidence is not persuasive that Sherry’s conduct caused whatever nervous condition Travis may have had. There is evidence that she was a good, loving, dedicated, and concerned parent. Her mother’s testimony that she was a bad mother to Travis is not persuasive. Mike conceded that Sherry had taken good care of Travis. His only criticism at trial was that she had left Travis alone with her mother while Sherry had gone out at nights and had failed to take care of Travis’ daily needs. Her absence does not establish unfitness where, as here, the child is left with adequate care. (Klaus v. Klaus, 509 S.W.2d 479, 482 (Mo.App.1974); Cook, supra, 532 S.W.2d at 836.)

      . The trial judge expressly noted this at trial but his “Memorandum of Court’s Findings” did not express a finding of facts on it. There was credible evidence that Mike, upon Sherry’s return from basic training, said some things (within the hearing of Travis) that strongly charged Sherry with not loving or wanting Travis.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    Una Singleton VAUGHAN, Respondent, v. Donald L. SINGLETON, Appellant.
    No. KCD 30094.
    Missouri Court of Appeals, Western District.
    June 29, 1979.

      William D. Powell, Columbia, for appellant.
    David V. G. Brydon, Jefferson City, for respondent.
    Before SHANGLER, P. J., and WAS-SERSTROM and CLARK, JJ.
   SHANGLER, Presiding Judge.

The trial court determined that the defendant owed his former wife Five Thousand Dollars under a stipulation for settlement of a third party suit and entered judgment accordingly. The defendant appeals on contentions that he had fully performed the agreement and that the adjudication was based on inadmissible evidence.

The wife brought suit earlier to terminate the marriage and dissolution was adjudged. The property division was taken to this court on appeal. [Singleton v. Singleton, 525 S.W.2d 642 (Mo.App.1975)]. Among the property to be determined was the right to Fifty Thousand Dollars realized from the sale of the residence. That money was placed in escrow with attorneys Lewis and Porter, their respective counsel, the disposition to abide final judgment on review.

The wife had earlier brought suit against another female to recover for the alienation of the affections of her husband. That suit pended at the time the suit for dissolution was commenced. On the day of trial of the alienation of affections suit the wife accepted judgment for One Dollar against the female defendant. As another consideration for the acceptance of that judgment, the husband agreed to pay the wife Five Thousand Dollars from the escrow funds held by counsel. That sum was promptly remitted to the wife from the held fund. The terms of agreement were struck discursively by counsel in the courtroom and dictated to the court reporter for transcription:

MR. PORTER [Counsel for the husband]: We have a stipulation which we will dictate to the Court Reporter. .
MR. BRYDON [Counsel for the wife]: [P]art of the Plaintiff’s claim she alleged that the Defendant in this case alienated the affections of her then husband, Donald Singleton, and that a part of the consideration for the disposition of this case today Donald Singleton — who is also the client of Mr. Porter has agreed to pay to the Plaintiff in this case the sum of $5,000 in cash. The money is to come from the proceeds of the sale of the Plaintiff’s residence and Mr. Singleton’s residence in Columbia, Missouri, the closing of which is to take place on or about May 6th of 1974. Approximately $50,000 equity will be realized from the sale of this house. Mr. Raymond C. Lewis, Columbia, represents the Plaintiff in this case in her divorce case, the appeal of which is now pending in the Court of Appeals, Kansas City District. Mr. Lewis and Mr. Porter have agreed that the $50,000 is to be held by them in escrow until the final disposition of the divorce case. Mr. Singleton will agree that they may immediately release $5,000 thereof to Mrs. Singleton, the Plaintiff herein, and that this settlement that he makes — the promise that he makes in no way will altar [sic], affect or change any of the issues pending in the divorce case and may not be considered in the final disposition of the divorce case. [Emphasis added.]

At the time. of agreement, the circuit court had adjudged dissolution and set aside to each spouse one-half [approximately $25,-000] of the proceeds from the sale of the residence. On appeal, the right to that property was reallocated to the wife solely [Singleton v. Singleton, supra] so that, in effect, the $5,000 dispensed from the escrow fund to the wife was from her own property. The husband refused to replenish $5,000 to the wife. He contends that the final disposition of the entire property to the wife acquits further obligation because the agreement requires only that the wife be paid from the escrow funds, a performance already fully made. The husband contends also that a letter from counsel for the wife which conveyed her understanding of the agreement was improperly received as evidence and effectively added terms to the agreement without new consideration.

The stipulation of agreement was given to the reporter orally for later transcription. The written embodiment of agreement, from all that appears, followed to counsel within days. At the conclusion of the stipulation proceeding, the wife was prompted by concern that should the trial court’s equal allocation of the property be altered on review, the agreement be understood to impose on the husband repayment of the sum paid from the escrow fund. Accordingly, counsel Brydon for her, telephoned counsel Porter to confirm that such was the import of agreement. A day or so later, counsel Brydon confirmed his understanding of the sense of the oral agreement by letter to counsel Porter:

This letter will serve to confirm our settlement of the above case consummated Monday. Mrs. Singleton has expressed some concern about it and I wanted to clear it up so that there would be no misunderstanding.
I understand that Mr. Singleton has agreed to pay $5,000 to Mrs. Singleton in settlement of the above case. As you have advised me that Mr. Singleton has no present funds available, and in order to facilitate it, that $5,000 will come from Mr. Singleton’s share of the proceeds of the sale of the home; to be held in escrow by you and Mr. Raymond C. Lewis, Jr., pending outcome of the divorce case now on appeal in the Court of Appeals, Kansas City District.
I understand the trial court decree awarded one-half of those, funds to Mr. Singleton and one-half to Mrs. Singleton. In the event that a court of competent jurisdiction ultimately awards 100 percent of those funds to Mrs. Singleton, then she would look to Mr. Singleton to repay that $5,000. I understand that if the trial court decree is ultimately affirmed, that this question will be moot, but I did not want any misunderstanding about it later. If you have a different understanding of the matter, please contact me immediately.

The letter went unanswered.

The contentions on appeal present questions of intention to contract. The assent was to an oral contract. The terms of an oral contract may be established by pa-rol, by evidence documentary as well as verbal. Preuitt Construction Co., Inc., v. Doty, 536 S.W.2d 908, 913[2, 3] (Mo.App.1976). The parties do not dispute that the recitals to the court reporter are terms of agreement. The question is only whether the stipulation conveyed the entire intention of the transaction. The judgment rendered by the court for the wife, in any event, can stand on the terms of the oral agreement unaided by other evidence, although the very nature of that extemporaneous expression of agreement imports a fragmentary contract, incomplete as to full intention, detail and meaning. [See, Restatement (First) on Contracts § 233.]

The stipulation of oral contract recites the agreement of the husband to pay the wife $5,000 in cash as part of the consideration for her disposition of the alienation of affections suit against the woman and authorizes the immediate release of that sum from the escrow fund. The expressions of stipulation, although rendered in the presence of the court at the disposition by judgment of the alienation of affections suit, excepted the subject matter of the agreement from the record of that proceeding and required the performance by the husband to pay $5,000, whatever the final disposition of the divorce case. The conduct of the parties, as well as their words of agreement, show the undertaking by the husband, and the expectation of the wife, of an absolute obligation from him to pay her $5,000. Muse v. E. A. Whitney & Son, 227 Mo.App. 640, 56 S.W.2d 848, 849[1-3] (1933). The contract was made to be independent of both the alienation of affections suit, which had been concluded by judgment, and the final adjudication of the dissolution action, still on appeal. The intention was that the performance by the husband to pay the wife $5,000 was an unconditional obligation. It contradicts all practical sense to say that the performance by the husband was only from any interest ultimately adjudged him in the escrow fund. That would mean that the wife agreed to pay herself should the court on review [later the actuality] vest her with the entire interest. Such an hypothesis is absurd both as a matter of ordinary conduct and as a legal proposition, since it would undermine the consideration for the agreement altogether.

The sufficiency of the agreement to support the judgment apart, the husband has no position to contend that the letter from counsel Brydon self-served the wife and so was not competent evidence to show the intended performance by the husband because, in fact, that evidence was submitted to the court for judgment.

The decision of the court was invoked on the basis of a stipulation of evidence composed of (1) the oral recitals of agreement by the husband to pay $5,000 to the wife undertaken at the conclusion of the alienation of affections suit [Exhibit A], and (2) the agreement that, if called, counsel Bry-don

would testify that immediately concluding those [alienation of affections] proceedings, plaintiff [the wife] expressed a concern that if the Kansas City Court of Appeals reversed the case in question, that she wanted it quite clearly understood that the money taken from said escrow fund would have to be repaid by defendant. That immediately thereafter, the said David Brydon telephoned Attorney Terence C. Porter, and related that conversation, and that a letter, a copy of which is marked “Exhibit B" attached hereto and made a part hereof for all purposes, was mailed by regular United States mail to the said Terence C. Porter and received by him, and that thereafter, the said Terence C. Porter made no re sponse to said letter, either orally or in writing. [Emphasis added.]

The argument that the husband objects to the admission of the letter as evidence because “self-serving and irrelevant” was also noted as well as the stipulation that “the Court shall consider said letter as evidence only in the event such objections be by the Court overruled.” The agreed objection was to the letter only [Exhibit B], but not to the testimony by Brydon of the intention of the wife that the husband pay the consideration of the agreement from his own funds, an intention then disclosed to counsel for the husband. That evidence was properly before the court and was competent to support the judgment. The contents of the letter, from what appears from the agreed evidence by Brydon, merely iterate in written form what was fully conveyed by word of mouth to counsel Porter earlier. The letter was merely cumulative and self-served the wife no less than the testimony of Brydon which was rendered competent by the accession of the husband, if for no other reason.

We need not determine whether the Bry-don letter [Exhibit B] — conveyed virtually contemporaneously with the oral agreement while the parties remained in harmony and long before the appeals decision gave rise to contention — merely self-served the wife, or, as res gestae or otherwise, bears relevantly on the intention to contract. [See, Hudson v. Rodgers, 121 Mo.App. 168, 98 S.W. 778, 780[2] (1906)]. There was substantial competent evidence, Exhibit B notwithstanding, to sustain the judgment of the trial court. City of Butler v. Kuecker, 559 S.W.2d 575, 578[4] (Mo.App.1977).

The judgment is affirmed.

All concur.

      . The stipulation agreement was concluded in the presence of the court on April 29, 1974, on the entry of judgment in the alienation of affections action, but not as part of that proceeding. On this appeal, the parties stipulate that Bry-don would testify, if called, that “immediately concluding those proceedings,” the wife expressed the concern which attorney Brydon then communicated to counsel Porter as to the intent of the agreement in the event of reversal of judgment. The letter from Brydon to Porter issued on May 1, 1974. It does not appear whether the stipulation had been rendered into a writing by then.

      . The record does not show when the transcription of the oral agreement was presented to the parties or whether the written embodiment was accepted as the true transaction.

      . “Mr. Singleton [agrees] . . . that his settlement he makes — the promise he makes [to pay the wife $5,000] in no way will altar, affect or change any of the issues pending in the divorce case and may not be considered in the final disposition of the divorce case.”


author: HARBISON, Justice.

text:
    GENESCO, INC., Appellant-Defendant, v. Willie Evelyn CREAMER, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    June 25, 1979.
    David Young Parker, Nashville, for appellant-defendant.
    Robert W. Knolton, Columbia, for appel-lee-plaintiff; Hardin & Knolton, Columbia, of counsel.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the employer appeals from the Chancellor’s award of benefits to the employee for total and permanent disability. The trial record and supporting medical data are extensive. The principal issue at trial was whether or not a painful condition in the employee’s left foot was or was not causally related to her employment, within the coverage of the Workmen’s Compensation Act. Little emphasis has been given by the parties to the fact that the only injury and the only disability established by evidence were to a scheduled member, the left foot, and not to the body as a whole.

After careful examination of the record, which contains highly conflicting medical proof, we are of the opinion that there was material evidence to support the finding of the trial judge that the injury sustained by the employee was work-related and that she is entitled to workmen’s compensation benefits. There is no evidence, however, lay or medical, to take this case out of the schedule contained in the statute, T.C.A. § 50-1007. Accordingly we vacate the award of total permanent disability and remand the case to the trial court for further proceedings.

Appellee had been employed in the appellant’s shoe factory in Hohenwald, Tennessee for some thirty-two years when she sustained an accidental injury to her left foot on January 12, 1977. She was then fifty-three years of age. Although she was illiterate, she had been a diligent and competent employee, having performed many different jobs in the plant over her long period of employment. For several years prior to the date of the accident, she had been working in the packing department. This work involved her pushing movable metal racks from place to place within her work area. Near the end of her shift on the date of the accident, January 12, 1977, she severely stubbed or wrenched her left foot while moving an empty rack. She immediately reported her injury to fellow employees. Appellee never returned to work following the accident. On the trial date in August 1978, she was able to walk only on crutches and had been in that condition for most of the time since her injury.

Appellant concedes that there was ample material evidence to support the finding of the trial judge that the employee did sustain a traumatic injury on the date claimed, but it insists that there is no evidence that there was any causal connection between that incident and a chronic painful condition in her foot of which she has continuously complained since the date of the accident. It is the contention of the employer that the employee’s left foot became painful because of pre-existing disease or illnesses from which appellee suffered, or that it was the result of a “mechanical problem” in the alignment of the bones in her foot, not related to her employment.

There was medical evidence which would have sustained a finding to that effect, had it been accepted by the trial judge. Appel-lee had been under the care of her family physician, Dr. Parker D. Elrod, since 1960. In the years between that time and the date of the accident, she had suffered from rheumatoid arthritis and a mild case of diabetes, as well as other illnesses, any one of which might have been responsible for a painful condition in her foot. She had complained to this doctor of pain in her left foot as late as August 1976.

In November 1976 appellee had been treated by Dr. D. J. Favenesi, and he had performed surgery, removing a neuroma from the foot. Appellee had convalesced from this operation for a period of several weeks during the latter part of 1976 and early 1977. She had returned to work, however, on January 3, 1977 and had worked without pain, difficulty or symptom until she sustained the accidental injury on which the suit is predicated, about eight working days later.

Immediately after the injury, on January 13, 1977, appellee consulted Dr. John G. Shuttleworth. He testified that initially he was not given a history of a traumatic injury on the preceding day, but later testified that appellee did complain of pain of some twenty-four hours duration when he first saw her. He attempted extensive examination and treatment of her left foot, without success. It was his opinion that there was no causal relation or connection between the accident on January 12, 1977 and her subsequent chronic painful and disabling condition.

Because her foot continued to cause extreme pain on weight bearing during the spring and summer of 1977, appellee consulted Dr. Kenneth L. Moore, an orthopedic specialist, in September of that year. He also performed extensive examination and was still treating appellee when the case was tried. Although he did not see the employee for nearly nine months after the accident, it was his professional opinion that there was a causal connection between her injury at work and her subsequent disabling condition. He was cross-examined extensively, and counsel for appellant sought to discredit his testimony. Nevertheless the trial judge concluded that Dr. Moore’s testimony, taken in conjunction with the uncon-tradicted lay evidence in the record, constituted material and substantial evidence to connect the employee’s disability with her injury on the job. We concur in that conclusion.

This Court, on appeal of workmen’s compensation cases, does not review the trial evidence de novo as in most non-jury cases under T.C.A. § 27-303. Rather, review is narrowly prescribed under an appeal in the nature of a writ of error, T.C.A. § 50-1018, and our examination of the record is confined to questions of law, including determination of whether there is any material or substantial evidence to support factual conclusions of the trial judge. This involves our evaluation of the entire record, and not just the record at the conclusion of the plaintiff’s evidence as insisted in appellant’s first assignment of error, which is overruled. Appellant’s second assignment of error, that there is no material evidence to support the compensation award is also overruled.

The third assignment of error made in this Court is that the award of total permanent disability was not justified by the evidence. This assignment is sustained, although on grounds somewhat different from those asserted by appellant. As stated previously, the issue of the degree and extent of disability was obscured in the development of medical proof and in the trial of this case, because of the employer’s strong insistence that there was no causal connection between the incident reported on January 12, 1977 and appellee’s chronically painful condition thereafter.

Both Dr. Moore and Dr. Shuttleworth were of the opinion that the painful condition of appellee’s left foot was permanent in nature. Dr. Moore testified that there was a chronic soreness in the foot, particularly on weight bearing, together with an osteoporosis, or loss of calcium in the bone, which is also painful. He felt that these two conditions were closely related to the point of being practically inseparable, and, as previously stated, expressed the opinion that they were the result of the employee’s accidental injury at work.

Only Dr. Moore undertook to give a disability rating, and he expressed this in terms of ten percent permanent partial disability to the left foot. He declined to translate this into a disability rating to the body as a whole, and his is the only medical rating contained in the record.

There is no evidence of any other injury or job-related disability to any other member of the body. The loss of, or loss of use of, a foot is a specifically scheduled injury under T.C.A. § 50-1007. In 1963 portions of the statute dealing with unscheduled permanent partial disability were amended by the additional provision that:

“The benefits provided by this paragraph shall not be awarded in any case where benefits for a specific loss is otherwise provided in this title.” T.C.A. § 50— 1007(c).

Despite earlier cases to the contrary, this Court in Shores v. Shores, 217 Tenn. 96, 395 S.W.2d 388 (1965), on facts similar to those presented here, noted the 1963 amendment and held that where the only injury is to a scheduled member, the scheduled benefits are exclusive and prohibit an award of permanent partial disability to the body as a whole. In that case an employee had suffered a crushing injury to the toes and the ends of the metatarsal bones of his right foot. The trial court awarded temporary total disability benefits and sixty-five percent permanent partial disability to the body as a whole. This Court reversed the latter award and allowed compensation only for a percentage disability for loss of use of a foot.

The holding in that case was reiterated in Chapman v. Clement Bros., Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968). Again referring to the 1963 amendment and its provision that scheduled benefits are exclusive, the Court said:

“This being true there is nothing that the court has any right to do when the facts show, as they do here that this was a scheduled injury — this was purely a medical question as to what part of the body was injured, which was the right extremity — there is nothing that we under the Act as it now exists can do except allow the disability for the scheduled member as this was the only thing that was injured. The statute relating to scheduled benefits has arbitrarily fixed the amount of compensation to be paid.” 222 Tenn. at 232, 435 S.W.2d at 121.

While this Court, in the more recent case of Continental Ins. Cos. v. Pruitt, 541 S.W.2d 594 (Tenn.1976), limited the Chapman case to its facts insofar as the definition of an “extremity” was concerned, it did not overrule Chapman or modify its holding that injuries to scheduled members are limited to the benefits set out in the statute.

The Chapman case was applied and followed in the cases of Industrial Coated Products of America Inc. v. Buchanan, 224 Tenn. 69, 450 S.W.2d 566 (1970) and Washington County Board of Education v. Hartley, 517 S.W.2d 749 (Tenn.1974).

Since the only medical rating given to appellee was ten percent disability of the left foot, the trial judge was not justified in making an award of permanent disability to the body as a whole. On the other hand, in view of the award which he did make, we do not believe that we would be justified in limiting the recovery to the medical rating. Accordingly we remand the case to the trial court for determination of permanent partial disability, not to exceed that provided for total loss of use of a foot, and for consideration of whether any award for temporary disability, total or partial, would be appropriate. No such allowance was made at the trial.

The cause is remanded to the trial court for further proceedings consistent herewith, and for the entry of such further orders as may be necessary or proper. In our discretion we tax all costs incident to the appeal against appellant. Costs in the trial court will be adjudged there.

HENRY, C. J., PONES and BROCK, JJ., and TODD, Special Judge, concur.

      . Although the employer originally raised an issue of notice in its pleadings, this was abandoned at trial.


author: FONES, Justice.

text:
    Gloria Patricia BOYKINS, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    July 2, 1979.

      Leslie I. Ballin, Memphis, for petitioner.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

FONES, Justice.

Gloria Patricia Boykins, a twenty-six year old woman with a seven-year old child, was sentenced to a six-month jail sentence upon a plea of guilty for attempt to commit the felony of grand larceny. Her application for suspended sentence and probation was denied, and she appealed to the Court of Criminal Appeals, where, with one member dissenting, that Court affirmed the trial court’s denial of her petition. We granted certiorari to reverse the intermediate court’s holding and find that the trial judge abused his discretion in refusing probation.

Boykins was employed as a sales clerk at a Sears, Roebuck and Company store in Memphis and was apprehended by a store security guard while attempting to steal $200 from a cash register. She testified at her probation hearing that she had acted “on the spur of the moment” in pocketing the money and that at the time of the offense she had been under pressure to finance $275 worth of dental work for her young son.

A probation report was prepared pursuant to T.C.A. § 40-2904 which revealed that Boykins was a high school graduate and currently was attending community college on a part-time basis. She had no prior police record and had secured a position at another Memphis department store within two months of discharge from the Sears store. Although the presentence report did not make a specific recommendation, the overall import of the report was that Boy-kins would be a good, if not excellent, candidate for probation. According to the report, Boykins “displayed a cooperative, positive attitude” with the pre-trial services counsellor, and he wrote that if probation were granted, “the defendant would benefit from medium community supervision and continued employment [and she] should be encouraged to continue her education at [the community college where she was enrolled].” (Emphasis supplied.) The assistant district attorney who handled the case told the trial court that he thought Boykins had engaged in “an impulsive act” and indicated that he did not oppose probation.

The only blemish on Boykins’ fitness for probation, which appears to have persuaded the trial judge to deny probation, was a request made to her pre-trial counsellor that her current employer not be notified of the reason why she was discharged by Sears. Although it is apparent that she did not disclose the details of her termination to her present employer, it is not evident from the record that she was asked why she was terminated by Sears or that she gave false information to her employer. She was under a legal obligation to disclose fully all material details to both the pre-trial coun-sellor and the trial judge, and the record reveals that she did this with full candor. As the dissenting member of the Court of Criminal Appeals recognized, “An admonition from the court to the defendant on the virtues of candor in the employment process might well be appropriate under these circumstances; a six month penalty for lapse of judgment in this regard seems unduly harsh . . . .” It certainly would have been an unfavorable circumstance if Boy-kins had been unemployed at the time of the hearing, and it appears irrational to penalize the defendant, who has a legal obligation to support her child, because she managed to secure another job and improve her chances for her rehabilitation.

In addition to his finding that Boykins was not candid with the court, the trial judge found that she displayed an “apparent lack of remorse” and “no apparent need for the money she took,” which we find unsubstantiated in the record. It is clear that Boykins took the money because she needed it to pay for emergency dental expenses for her son. The record amply demonstrates Boykins’ remorse. At one point she even told the prosecutor that she was glad she was caught because “I’d hate to think that, you know, in the future it would lead to, you know, more stealing.”

Finally, the trial judge believed that Boy-kins was not a proper candidate for probation because she had not really suffered any punishment as a result of her crime and that the jail term would serve as a deterrent for her in the future. In Moten v. State, 559 S.W.2d 770 (Tenn.1977), we held that deterrence was not a proper factor in a determination of a defendant’s entitlement to probation. However, the Legislature subsequently amended T.C.A. § 40-2904 to include deterrence as a factor by enactment of ch. 911, 1978 Tenn.Pub.Acts, which became effective on May 5, 1978.

By enactment of ch. 911, the Legislature added a standard that allows the trial judge to deny probation. The offense was committed on June 24, 1977, almost one year prior to the change in the probation standards. In our view an application of this new standard in order to deny Boykins’ probation for an offense committed prior to the passage of ch. 911 would amount to prohibited ex post facto legislation. See Stinson v. State, 208 Tenn. 159, 344 S.W.2d 369 (1961); Davis v. Beeler, 185 Tenn. 638, 207 S.W.2d 343 (1947).

In State v. Grear, 568 S.W.2d 285, 286 (Tenn.1978), we held that in order to justify reversal based on an abuse of discretion, an appellate court must,

“demonstrate that the record contains no substantial evidence to support the conclusion of the trial court that the defendant is not entitled to probation or suspended sentence, giving due consideration to the criteria set out in the statute and decisions of this Court . . .”

We are satisfied that the standard of review enunciated in Grear leads to the inescapable conclusion that the trial judge abused his discretion and that Boykins was an ideal candidate for probation. There simply is no evidence to support the trial judge’s conclusion that Boykins was less than candid with the court or her pre-trial counsellor, that she displayed an apparent lack of remorse or that she had no apparent need for the money she took. The action of the trial judge in insisting that Boykins’ new employer be informed of her prior crime appears to be contrary to the policy of using rehabilitation as an affirmative correctional approach. See, e. g. Moten v. State, supra; Stiller v. State, 516 S.W.2d 617 (Tenn.1974); Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976). We fail to see what social interests are advanced by placing a first-time offender with custody of a young child in jail for six months, or by depriving her of an-opportunity to rehabilitate herself through new employment and thus forcing her and her child on the public dole, at the taxpayers’ expense. The fallacy of such a result is intensified by the fact that Boykins had attempted through schooling and new employment to improve her lot in life and thus avoid the situation which led to the criminal impulse in the first instance.

The case is reversed and remanded to the trial court “for the entry of an order of probation to include ‘such conditions of probation as the trial judge shall deem fit and proper.’ ” Moten v. State, supra, 559 S.W.2d at 773.

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


text:
    MEMPHIS SHOPPERS NEWS, INC., Appellant, v. Jayne Ann WOODS, Commissioner, Department of Revenue, State of Tennessee, Appellee. TOWERY PRESS, INC., Appellant, v. Jayne Ann WOODS, Commissioner, Department of Revenue, State of Tennessee, Appellee.
    Supreme Court of Tennessee.
    July 2, 1979.

      Edward A. Kizer, Goff, Canale, Walsh & Kizer, Memphis, F. P. Cribbs, Jr., Houston, Tex., for appellants.
    William M. Leech, Jr., Atty. Gen., David S. Weed, Senior Asst. Atty. Gen., Nashville, for appellee.
   OPINION

FONES, Justice.

Appellants, Towery Press, Inc. and Memphis Shoppers News, Inc., brought suits for refunds of use tax plus interest paid under protest. T.C.A. § 67-2301 et seq. Both are Tennessee corporations with their principal place of business in Memphis and are engaged in printing and publishing a series of advertising handbills in a newspaper format for free distribution under the names “Whi-tehaven Press” and “East Memphis Shoppers News.”

Appellants predicated their claims for refunds on the grounds that (1) their publications qualified for exemption from the use tax as “newspapers” and if not that, (2) estoppel and due process prevented assessment of a use tax because prior audits of their operations found their publications exempt.

The learned trial judge denied relief, relying upon our decision in Shoppers Guide Publishing Co. v. Woods, 547 S.W.2d 561 (Tenn.1977), wherein we held a similar publication distributed in Chattanooga did not qualify as an exempt newspaper under T.C.A. § 67-3012 and Tennessee Revenue Ruling 1320-5-1-46. The trial court did not address the estoppel and due process issues.

The sole assignment of error on behalf of appellants in this Court is that they have been denied due process of law because the Department of Revenue changed its interpretation of the law and taxed appellants for a period of time when they paid no tax in reliance upon the Department’s prior interpretation of the law.

Appellants insist that their factual situation is analogous to that of the taxpayers in Gallagher v. Butler, 214 Tenn. 129, 378 S.W.2d 161 (1964), and New England Mut. Life Ins. Co. v. Reece, 169 Tenn. 84, 83 S.W.2d 238 (1935), where they insist this Court held that the Due Process Clause prevents retroactive collection of taxes following a changed interpretation of the law. We think those cases are distinguishable.

I.

In early 1970 the Department of Revenue conducted a sales and use tax audit of the books and records of Memphis Shoppers News, and the field auditors allegedly advised J. Roy Dance, vice president and general manager of the publication, that no additional tax liability was due and that Memphis Shoppers News qualified as an exempt newspaper. On March 16, 1970, the chief of the field audit section in Nashville sent a letter to Dance that read:

“The audit made by this Department covering your Sales Tax liability for the period January 1, 1966 through December 31, 1969 has been reviewed. We are pleased to advise that based on the information contained in the audit report, no additional liability has been discovered. While this does not preclude some later assessment based on discovery of additional information, we do wish to congratulate you on the apparent excellent manner in which you complied with existing laws and regulations covering Sales and Use Taxes.”

In March 1977, the Department of Revenue auditors again examined the books and records of Memphis Shoppers News, at which time Davis was informed that the publication did not qualify as an exempt newspaper. Consequently, the Department of Revenue assessed taxes, interest and adjustments against Memphis Shoppers News in the amount of $36,791.96 on August 16, 1977 for the period from March 1, 1974, through May 28, 1977.

Towery Press likewise was audited by the Department of Revenue in early 1967, and the field auditor stated at that time in his report that the publication Whitehaven Press was an exempt newspaper. Another audit report filed in 1969 also reached the same conclusion. However, as a result of a February 1977 audit, the Department of Revenue assessed a tax deficiency of $43,-629.96 for the period between August 1, 1973 and October 31, 1976.

The chief of field audit for the sales and newspaper division of the Department of Revenue testified that his division consistently adhered to a policy that “treated any kind of advertising circular or publication as taxable.” A Memphis field audit supervisor with twenty-six years experience also testified that appellants’ publications always had been treated as advertising media. They attributed the failure to tax appellants at the time of the earlier audits to individual error on the part of the field men involved.

II.

In New England Mut. Life Ins. Co. v. Reece, supra, it was undisputed that for a period of thirty-five years each successive commissioner of insurance had construed the term “gross premium receipts” to exclude dividends credited by foreign life insurance companies to their policyholders in Tennessee in computing an annual tax on gross premium receipts. In 1932 the commissioner reversed that ruling. The Court first discussed in great depth the merits of the long-adhered-to interpretation versus the interpretation first adopted in 1932 and concluded with the following:

“We have the impression that the weight of the decided cases rather favors the insurance company. Such is the impression of the law writers.” 169 Tenn. at 91, 83 S.W.2d at 240.

The Court thereafter fortified its conclusion already reached that the former interpretation was correct by pointing out that during the thirty-five year period,

“[T]he Legislature could not have escaped knowledge of the fact that the office of the insurance commissioner was construing ‘gross premium receipts’ to exclude dividends credited. Notwithstanding the foregoing, the Legislature time after time enacted revenue bills taxing insurance companies upon ‘gross premium receipts’ without change of phraseology. Under such circumstances we feel obligated to respect the ruling of the commissioner made in 1897 and adhered to for thirty-five years.” 169 Tenn. at 93, 83 S.W.2d at 241.

Thereafter the Court devoted much attention to the principle that administrative or legislative constructions of statutes long-adhered to would be given great weight by the courts, except where the statute in question was plain, its meaning clear and the administrative or legislative construction was patently erroneous. This phase of the opinion was culminated by the following paragraph:

“We feel obliged, therefore, to hold that ‘gross premium receipts’ as those words are used in our revenue statutes do not include dividends of policyholders credited on their premiums. This is an application of the principles of stare deci-sis. These principles must obtain in any orderly government. To ignore these principles, to permit the tax laws to be changed by a precipitate ruling of a single administrative officer, savors of caprice and tyranny and lacks of due process.” 169 Tenn. at 95-96, 83 S.W.2d at 242.

This Court has no hesitancy in finding (1) that the New England Court, having adjudicated that the former interpretation of gross premium receipts was legally correct, the remainder of the opinion was dicta and (2) neither principle espoused in dicta rests upon the denial of constitutional due process.

Gallagher v. Butler, supra, involved a number of taxpayers similarly situated and the issue common to all was whether, upon the liquidation of a corporation and distribution of its assets to shareholders or upon redemption for the purpose of retiring stock held by shareholders, the shareholder was taxable on that portion of the distribution that exceeded his original investment.

As in New England, the Court first dealt with the merits of that issue and reached the conclusion that such distributions were not taxable. Thereafter, the Court noted that for a period of about thirty years the Department of Revenue had not taxed such corporate distributions and that, “Members of the bar, the accounting profession, and the general public have relied upon [those] ruling as being correct.” 378 S.W.2d at 166. Again, to fortify its judicial construction of the tax statute, the Court invoked “a familiar rule of statutory construction” that where a statute is of doubtful meaning, administrative interpretations unchallenged over a long period of time are accorded persuasive weight by the Court and usually will be followed unless palpably erroneous. 378 S.W.2d at 166. Numerous cases were cited, including New England Mut. Life Ins. Co. v. Reece, supra. The Gallagher Court affirmatively stated that the thirty-year rule of the Department was “not palpably erroneous,” which was rather obvious, the opinion having already judicially construed the distribution in question as non-taxable.

Thus in both New England and Gallagher the Court arrived at a judicial construction of the tax statutes in question identical to that of the administrative interpretation long adhered to by the Department of Revenue, and quite obviously those administrative interpretations were not “palpably erroneous.” Also, the interpretations were, beyond question, uniformly applied by the Department of Revenue to all taxpayers similarly situated. Finally, the rule giving weight to administrative interpretations is merely an aid to judicial construction of doubtful tax statutes. It is not predicated upon estoppel or due process.

In the instant case, the underlying legal issue is whether or not these “shopper publications,” which are distributed free, qualify for the exemption granted a “newspaper.” An examination of the publications exhibited with this record reveals that they do not contain “even a modicum of local news.” In Shoppers Guide Publishing Co. v. Woods, supra, we held that Rule 46 of the State Sales and Use Tax Rules and Regulations required that to qualify for the newspaper exemption a publication must contain “ ‘general news of the day, information of current events, [or] news of importance and of current interest to the general public.’ ” 547 S.W.2d at 563.

While we are not impressed with the probative value of the testimony of the witnesses presented by appellee, appellants’ proof with respect to the audits conducted fails to establish that the Department of Revenue followed a statewide policy of exempting publications similar to theirs. We can judicially notice that the Department of Revenue audited Shoppers Guide Publishing Company in 1975 and found that its “Shoppers Guide” failed to qualify for the “newspaper” exemption. 547 S.W.2d at 562. Appellants' publications are indistinguishable from the “Shoppers Guide.”

But assuming that their proof was of the same effect as that adduced in New England and Gallagher, to wit, that the newspaper exemption was uniformly extended to every Tennessee taxpayer similarly situated, for a long period of time, we could not grant appellants the relief they seek, because that interpretation of the statutes and rule would have been palpably erroneous. There is not one scintilla of factual support in this record upon which to contend that these publications contained “ ‘general news of the day, information, of current events, [or] news of importance and of current interest to the general public.’ ” 547 S.W.2d at 563.

The evidence reveals that the publications have not changed since the early audits, and Rule 46 was unchanged throughout the periods relevant to these eases.

III.

Unfortunately, no relief is available to appellants under the doctrine of estoppel as a result of the failure of tax officials to collect the tax, because of misinterpretation of the law, or for whatever reason.

It is well settled in Tennessee that the doctrine of estoppel does not operate against the State with respect to the collection of its revenue. See, e. g., Tennessee Blacktop, Inc. v. Benson, 494 S.W.2d 760 (Tenn.1973); John Ownbey Co. v. Butler, 211 Tenn. 366, 365 S.W.2d 33 (1963); Esso Standard Oil Co. v. Evans, 194 Tenn. 377, 250 S.W.2d 569 (1952); Murfreesboro Bank & Trust Co. v. Evans, 193 Tenn. 34, 241 S.W.2d 862 (1951); Gilman Paint & Varnish Co. v. Carson, 190 Tenn. 256, 229 S.W.2d 330 (1950); American Bemberg Corp. v. Carson, 188 Tenn. 263, 219 S.W.2d 169 (1949). Appropriately, no penalties were assessed against appellants.

Affirmed. Costs are adjudged against appellants.

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

      . Subsequent to the decision in Shoppers Guide Publishing Co., the Legislature passed chapter 487 of the Public Acts of 1977, effective May 28, 1977, which exempted “shoppers advertisers” from the sales and use tax.


text:
    Robert R. WIMBERLY and Evelyn M. Wimberly, Petitioners, v. AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA (CNA) Group and New Hampshire Insurance Co., Respondents.
    Supreme Court of Tennessee.
    July 2, 1979.

      Thomas F. Johnston, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, David P. Jaqua, Armstrong, Allen, Braden, Goodman, McBride & Prewitt, Memphis, for petitioners.
    Leo Bearman, Sr., Leo Bearman, Jr., Memphis, for respondents.
   OPINION

FONES, Justice.

The Wimberly’s restaurant was destroyed by fire, and they sustained an undisputed loss of $44,619.10. The fire was caused by Shelia McLemore’s driving her automobile into the restaurant. Her insurance carrier paid the policy limits of $25,000. The Wim-berlys had a total of $15,000 fire insurance coverage with defendant insurance companies.

The single question for determination is what are the subrogation rights of the two fire insurance companies when the total recovery of the insured from the tortfeasor and the fire insurance policies is less than the casualty loss.

The chancellor ruled that the insureds must be paid in full for their loss before subrogation rights arose in favor of their insurance carriers. The Court of Appeals reversed and held that the insureds and the insurers were entitled to an equal distribution of the proceeds received from the tort-feasor’s insurance company. Although this is a case of first impression in Tennessee and authority exists to support the result reached by the Court of Appeals, we are persuaded that the better-reasoned cases hold that an insured must be made whole before an insurer is entitled to subrogation against a tortfeasor.

The fire insurance policies that the Wim-berlys had with American Casualty and New Hampshire Casualty both contained the standard subrogation clause, which read:

“This company may require from the insured an assignment of all rights to property against any party for loss to the extent that payment therefor is made by this company.”

On February 18, 1975, the Wimberlys signed a proof of loss and subrogation receipt, by which they subrogated their insurers “to all of the rights, claims and interests which the undersigned may have against any person or corporation liable for the loss” and agreed to cooperate with their insurers in litigating or compromising their claims. On February 27, the insurers issued checks to the Wimberlys for $7,000 and $8,000, the full amount of the respective policies, for a total of $15,000. On April 16, 1975, Hartford Insurance Company, the insurer of McLemore, issued a check for $25,-000, payable to Robert R. and Evelyn M. Wimberly, American Casualty Company and New Hampshire Insurance Company. In late May all of the payees of the $25,000 check executed a joint release of McLemore in consideration of the settlement with her insurer.

The American Casualty Company received $3,921.53 and the New Hampshire Insurance Company received $4,482.94, for a total of $8,404.47 as a pro rata share, and the Wimberlys received $16,595.53 of the settlement payment. Subsequently, since they had to bear an uninsured loss of $13,-023.57, the Wimberlys sued to recover the $8,404.47 received by their insurers, with interest from April 16, 1975 and attorney’s fees.

The Court of Appeals reversed the trial court judgment in favor of the plaintiffs and held that both the insured and the insurers were entitled to a pro rata share of the sum recovered from the third-party tortfeasor. The intermediate court relied upon a Florida decision, which we find to be inapposite to the facts and issues presented in this case. The Court of Appeals appears to have bottomed its decision on its conclusion that “[b]oth the plaintiffs and defendants were legally entitled to recover all of their loss from the tortfeasor but were prevented from making a complete recovery due to the inadequacy of funds received from tortfeasor. All had an equal right to recovery, and the standing of one was not greater than the other.”

Defendants contended at trial that under the stipulated facts and applicable law, they are entitled to priority because of their subrogation rights against the recovery from the third-party tortfeasor. In support of this position, defendants relied on cases from other jurisdictions which have allowed the insurer to be first indemnified out of the proceeds recovered from the third-party tortfeasor when the insured had assigned to his insurer all rights of recovery against the tortfeasor to the extent of payment, even when the insured suffered a fire loss only partially covered by his policy. See Peterson v. Ohio Farmers Ins. Co., 175 Ohio St. 34, 191 N.E.2d 157 (1963); accord, Ervin v. Garner, 25 Ohio St.2d 231, 267 N.E.2d 769 (1971); Travelers Indemnity Co. v. Ingebretsen, 38 Cal.App.3d 858, 113 Cal.Rptr. 679 (1974); Shifrin v. McGuire & Hester Constr. Co., 239 Cal.App.2d 420, 48 Cal.Rptr. 799 (1966).

In Peterson v. Ohio Farmers Ins. Co., supra, the Ohio Supreme Court considered a factually similar case, in which the insured also executed an assignment of all of the insured’s rights of recovery against the third-party tortfeasor to the extent of the insurer’s payment to the insured. The Court held that the outcome of the case was determined by the subrogation provisions of the insurance policy and the subrogation receipt signed by the insured upon settlement of the claim for loss, both of which had language identical to that found in the Wimberly’s policy and subrogation receipt. The Court reasoned:

“The insured’s conveyance of all right of recovery up to a certain limit, viz., the extent of the insurer’s payment in settlement of the insured’s claim, can mean only that the assignee is the owner of all the insured’s rights of recovery until he is paid. The assignee, being the owner of all of the insured’s right of recovery, must have priority in payment out of the funds recovered. Otherwise, the words ‘all right of recovery’ are without meaning.” Id., 191 N.E.2d at 159.

Although the Ohio Court gave weight to the fact that the insurer had cooperated and assisted in proceedings against the wrongdoer, the clear holding of the case was that the specific subrogation provision and the assignment of “all right of recovery” was interpreted to give the insurer priority to the proceeds received in the judgment recovery from the third party tortfeasor. In a subsequent case, Ervin v. Garner, supra, moreover, the Ohio Court indicated that it would not concede that cooperation and assistance are prerequisites under the Peterson rule. Id., 267 N.E.2d at 773. Rather, as in Peterson, the Ohio Court found, “we fail to see how the insured can specifically assign each and all claims and demands to the insurer concerning the single causé of action, limited only by the monetary amount which the insured has paid, and yet still retain any part of his claim or demand.” Id. at 774.

We disagree with the position taken by the Ohio Court and find the results of these cases at odds with the principles of equitable subrogation. “ ‘Subrogation is a right which is founded upon equity and justice and accrues when one person for the protection of his own interests, pays a debt for which another is primarily liable.’ ” Amos v. Central Coal Co., 38 Tenn.App. 626, 277 S.W.2d 457 (1954). The question for decision in this case, however, is whether the equitable operation of subrogation is modified by the terms of the underlying contract, so-called conventional subrogation.

In Castleman Constr. Co. v. Pennington, 222 Tenn. 82, 432 S.W.2d 669 (1968), this Court, speaking through Chief Justice Burnett, rejected the contention made by an insurance company that conventional subro-gation is not governed by the same tests applied to find subrogation which arises by operation of law. The Court quoted with approval from Couch on Insurance 2d § 61:20 (1966):

“ ‘The doctrine of subrogation in insurance does not arise from, nor is it dependent upon, statute or custom or any of the terms of the contract; it has its origin in general principles of equity and in the nature of the insurance contract as one of indemnity. The right of subrogation rests not upon a contract, but upon the principles of natural justice.’ ” Id., 432 S.W.2d at 675.

The Court viewed the distinction between legal and conventional subrogation only dis-positive of “whether there is a right of subrogation in the first instance, rather than in the enforcement of such right.” Id. at 675.

In Knaffl v. Knoxville Banking & Trust Co., 133 Tenn. 655, 182 S.W. 232 (1916), a surety sought to defeat the creditor’s claim to the full amount of the debt- or’s partial payment by virtue of the terms of the bond agreement, which stated that in the event of default and payment of a claim “the said surety shall be forthwith subro-gated to all the rights of the creditor.” (Emphasis added.) The Court stated the well-established principle that the right of subrogation cannot be enforced until the whole debt is paid. The Court reasoned,

“A pro tanto assignment or subrogation will not be allowed. The reason is that subrogation is a creature of equity and will never be allowed to the prejudice of the creditor. [Citations omitted.]” Id. at 658, 182 S.W. at 233.

Consequently, we believe our resolution of this case must be guided by general principles of equity, to wit, that the insured must be made whole before subrogation rights arise in favor of the insurers.

The purpose of insurance subrogation is to prevent either the unjust enrichment of the insured through a double recovery or a windfall benefit to the principal tortfeasor by allowing the insurer to stand in the shoes of the insured once the insurer has fully indemnified the insured. Skauge v. Mountain States Tel. & Tel. Co., 565 P.2d 628 (Mont.1977); 16 Couch, supra, § 61:18; 11 Appleman, Insurance Law and Practice § 6502 (1944). It is obvious that the insureds will not be unjustly enriched by recovering from their insurers on their fire policies as well as from the tortfeasor’s insurer because the total indemnity of $40,-000 will not cover the casualty loss of $44,-619.10. The principal tortfeasor has not reaped a windfall, but rather has been released by the parties in consideration of a $25,000 settlement with her insurer. Finally, although defendant insurers must pay the full limits of their policies without reimbursement by way of subrogation, the insured loss was a risk that the insureds paid for them to assume. Had the tortfeasor been judgment-proof and uninsured, defendants would still have been required to bear the loss to the full extent of the policies.

In Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512, 516 (1977), the Supreme Court of Wisconsin refused to follow the Peterson rationale and held that “we regard the differentiation between subrogation and assignment in this situation as purely procedural.” The Court correctly isolated the pivotal question, not considered by the Ohio Court in Peterson, whether the insurance contract had changed the rule that the surety’s right of subrogation does not arise ordinarily until the debt is paid in full, and held that “because the contract here contains no language to the contrary, the normal rule of subrogation applies and the subrogee has no right to share in the funds recovered from the tortfeasor until the subrogor is made whole.” Id., 253 N.W.2d at 516. The Court simply recognized that the assignee under the subrogation receipt is a subrogee, and nothing more. As a subrogee, the insurer does not acquire the rights of its insured until the latter is made whole. “The assignment adds nothing to the rights vested in the surety by the doctrine of subrogation.” Id. at 516, quoting from Couch, supra, § 61.105.

We believe that the rule followed in Garrity comports with the doctrine of sub-rogation as applied under Tennessee law and represents the approach followed in a plurality of jurisdictions. See, e. g., Skauge v. Mountain States Tel. & Tel. Co., supra; Lyon v. Hartford Accident & Indemn. Co., 25 Utah 2d 311, 480 P.2d 739 (1971); St. Paul Fire & Marine Ins. Co. v. W. P. Rose Supply Co., 19 N.C.App. 302, 198 S.E.2d 482, cert. denied, 284 N.C. 254, 200 S.E.2d 655 (1973); Washtenaw Mut. Fire Ins. Co. v. Budd, 208 Mich. 483, 175 N.W. 231 (1919); Home Ins. Co. v. Hartshorn, 128 Miss. 282, 91 So. 1 (1922); Propeck v. Farmers’ Mut. Ins. Ass’n, 65 S.W.2d 390 (Tex.Civ.App. 1933); Shawnee Fire Ins. Co. v. Cosgrove, 85 Kan. 296, 116 P. 819 (1911).

The judgment of the Court of Appeals is reversed and that of the trial court reinstated. Costs are adjudged against appellees.

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


author: SUMMERS, Judge.

text:
    MOTORS INSURANCE CORPORATION Plaintiff-Appellant v. Jessie J. BLAKEMORE and Lewis K. Garrison, Defendants-Appellants, and Leola Curtis and Cotton Belt Insurance Co., Inc., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Sept. 19, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.

      Robert L. Dobbs, Terry D. Smart, Memphis, for plaintiff-appellant.
    Lewis K. Garrison, Memphis, for defendants-appellants.
    J.Harold Ellis, Memphis, for defendants-appellees.
   SUMMERS, Judge.

This cause is before this court on the appeal of the plaintiff, Motors Insurance Corporation, and the cross appeal of the defendants, Jessie J. Blakemore and Lewis K.Garrison. In the trial court the plaintiff sought to recover from Blakemore the sum of $1,112.87 or in the alternative recover of Garrison, Leola Curtis or Cotton Belt Insurance Company, Inc., the same sum.

On December 4, 1970, Curtis and Blake-more were involved in an automobile accident in the City of Memphis. Blakemore was stopped at a traffic light when Curtis struck the rear of his automobile causing damage to his automobile and personal injuries to him. Blakemore carried a property damage policy with Motors, and Curtis was covered by a liability insurance policy issued by Cotton Belt. Motors paid to have Blakemore’s automobile repaired at a cost of $1,112.87. Blakemore then signed a sub-rogation agreement vesting in Motors all rights and causes of action against Curtis for his property damage.

On February 15, 1971, Motors mailed a letter to Garrison, attorney for Blakemore, stating that, “Any legal action for property damage that you find it necessary to initiate on behalf of your client should be limited to his collision deductible. Please let us know if it becomes necessary to file suit.”

On March 26, 1971, Robert L. Dobbs, attorney for Motors, wrote a letter to Garrison stating:

I understand you are representing the insured for his personal injury claim, and would appreciate you advising as to my intervention in this matter to the extent of the property damages.

On November 12,1971, Garrison filed suit in the Circuit Court, of Shelby County in which the following allegations, statement of the claim and demand for judgment were incorporated:

Complainant further alleges that as a result of the negligence of the Defendant as heretofore described, his 1970 Pontiac was damaged and reduced in value and that the Complainant herein has been caused to expend a sum of money for the repairs to the vehicle.
Complainant alleges that the damages to his said vehicle was a result of the negligence of the Defendant as heretofore mentioned.
WHEREFORE, Complainant sues the Defendant for the total sum of Seventy-Two Thousand Dollars ($72,000.00) for damages, actual, compensatory and punitive, and demands a jury to try the cause when the issues are joined. [Emphasis added]

Rule 8.01 of the Tennessee Rules of Civil Procedure states as follows:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

In Farmers State Bank v. Jones, 34 Tenn.App. 57, 232 S.W.2d 658 (1949), the court stated: “. . . Even in law cases a pleading is sufficient (1) When it conveys a reasonable certainty of meaning; (2). When, by a fair and natural construction, it shows a substantial cause of action or defense. . ” In Lazarov v. Nunnally, 188 Tenn. 145, 217 S.W.2d 11 (1949), it is stated: “. . . any bill of complaint is regarded as sufficient if it conveys a reasonable certainty of meaning and by natural construction shows a substantial ground for suit, .” Also see: Ferguson v. Moore, 209 Tenn. 122, 348 S.W.2d 496 (1961); U. S. Fidelity and Guaranty Co. v. Elam, 198 Tenn. 194, 278 S.W.2d 693 (1955); Commerce-Union Bank v. Haiman, 4 Tenn.App. 669 (1927); Grace v. Curley, 3 Tenn.App. 1 (1926); and many more.

The Chancellor found, and rightfully so, that the lawsuit filed against Curtis, who was insured by Cotton Belt, was a claim for both property damages and personal injuries.

On April 27, 1972, a consent judgment, signed by the trial judge and approved by the attorneys for Blakemore and Curtis, was entered. This consent judgment extinguished all claims and causes of action between the parties and consequently extinguished the claim or any subrogation rights of Motors; as a result of this Motors brought suit against the defendants herein.

The instant case was heard before Chancellor Lewis without a jury. The chancellor found that Motors had taken the necessary steps to preserve its subrogation claim and should prevail in the lawsuit. The chancellor further found that the plaintiff had benefited from the services of Lewis K. Garrison and that Garrison was entitled to a forty-five per cent attorney’s fee. Therefore, the chancellor entered a judgment for fifty-five per cent of the amount sued for in favor of the plaintiff against Garrison and Blakemore.

The plaintiff appealed the ruling of the chancellor and assigned as error:

I. The Court erred in not entering a judgment in favor of the plaintiff against Leola Curtis and Cotton Belt Insurance Co., Inc.
II. The Court erred in allowing Lewis K. Garrison credit on the judgment against him for forty-five (45%) per cent of the judgment for an attorney fee for representing Motors Insurance Corporation’s subrogation interest in Circuit Court case number 54059.

The defendants, Blakemore and Garrison, also appealed the chancellor’s ruling and assigned as error:

The trial court erred in entering a judgment in favor of plaintiff against Defendants, Lewis K. Garrison and Jessie J. Blakemore.

We find that the plaintiff’s first assignment of error is without merit. James Causey, the attorney for Cotton Belt, the insuror of Curtis, negotiated with Garrison to settle the lawsuit filed by Blakemore. Garrison was the only attorney of record in the cause; the attorney for Motors had not intervened in the law suit. When the case was settled, Causey wanted to extinguish all causes of action and claims against his clients. He delivered the check in the sum of $8,850.00 to the clerk of the court and filed the consent judgment which concluded the matter as far as his clients were concerned. Causey was under no obligation to protect anyone’s interest but his clients. We find that there was no error in the procedures he followed.

Therefore, the first assignment of error of the plaintiff is overruled.

We find that the assignment of error of the defendants, Blakemore and Garrison, is also without merit. The consent judgment which was signed by Garrison on behalf of Blakemore extinguished all claims against Curtis and Cotton Belt. Garrison and Blakemore were both aware that the plaintiff had expended money for the repair of Blakemore’s automobile and was subro-gated to the claim of Blakemore to the extent of the sum it paid. Blakemore and Garrison did nothing to protect the claim of the subrogee. The consent judgment did not state that the sum of money paid into court was only for personal injuries; as the complaint sued for both personal injuries and property damage, we must conclude that the settlement was for personal injuries and property damage.

Therefore, we rule that Blakemore and Garrison settled to the detriment of Motors and should be held responsible for their actions. We do not think that Blakemore should be entitled to collect twice for his property damage or that Garrison should be absolved for his part in attempting to keep Motors from collecting the sum due it under the subrogation agreement. The assignment of error of Blakemore and Garrison is overruled.

The remaining single question for this court to decide is whether Garrison is entitled to an attorney’s fee.

Tennessee Farmers Mutual Insurance Company v. Pritchett, 54 Tenn.App. 410, 391 S.W.2d 671 (1964), held that the plaintiff’s collision carrier did not take action to protect or enforce its subrogation rights until after the plaintiff and the defendant’s liability carrier settled the matter. The court found that the suit was an action in equity to enforce a subrogation right and that the rule is the result must be equitable. That court granted the collision carrier its subrogation rights but ruled that plaintiff’s attorney was entitled to an attorney’s fee. That court said that the insurance carrier should bear its pro rata portion of the insured’s expense in securing the recovery as it sat idly by and acquiesced in the action of the insured’s attorney in its behalf.

However, the more recent case of Travelers Insurance Company v. Williams, Tenn., 541 S.W.2d 587 (1976), clearly sets forth criteria to determine if an attorney for the insured can collect its pro rata share of the recovery due the collision carrier. The facts in Travelers are on point with the facts of the case at bar in that both insurance companies gave notice that they would handle their own subrogation claims. In Travelers, Justice Brock defined the differences in the Travelers and the Tennessee Farmers cases and held:

It follows that whether or not an attorney is entitled to collect from the insurer a fee with respect to a subrogation claim depends upon whether an express or implied contract or a quasi contractual relation exists between them.
In the instant case, we find no evidence that an express or implied contract existed between the insurer and the insured’s attorney. On the contrary, unlike the subrogee in the Pritchett case, the insurer here expressly stated to the insured that it would handle its own subrogation claim and that the insured was not to protect the same. A promise cannot be implied in fact in the face of a declaration to the contrary by the party to be charged. Any authority which the insured might otherwise have had to direct his attorney to prosecute the subrogation claim was expressly revoked.
Neither do we find evidence of unjust enrichment of the insurer from the services of the insured’s attorney upon which a quasi or constructive contractual duty could be based. In our view, one is not unjustly enriched by a benefit “forced upon” him as the result of services voluntarily and officiously performed by another who has been expressly informed by the alleged promisor that his services are not desired.

Garrison and Blakemore were put on notice by a letter from Motors on February 15, 1971, that it would handle the subrogation claim itself. On March 26, 1971, the attorney for Motors, asked that Garrison advise him if he should intervene in the matter to the extent of the property damages. This court cannot say that Motors sat idly by and acquiesced in the handling of the claim.

By following the ruling in Travelers, this court must determine that there was no contract between Motors and Garrison, either expressed, implied or quasi, and that Garrison acted as a volunteer. Therefore, the plaintiff’s second assignment of error must be sustained.

We affirm the chancellor in his finding that the plaintiff had taken the necessary steps to preserve its subrogation claim and that judgment should be rendered only against the defendants, Blakemore and Garrison, in the sum of $1,112.87. We reverse and dismiss that portion of the judgment of the chancellor in which an attorney’s fee was awarded to Garrison. The costs of this cause are assessed against the defendants, Jessie J. Blakemore and Lewis K. Garrison.

MATHERINE and EWELL, JJ., concur.