text:
    Theodore Delroy AMRINE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30214.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Joe L. Moseley, Asst. Public Defender, Columbia, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

This case reaches this court on Movant’s appeal from denial of his motion to vacate conviction pursuant to Rule 27.26. Affirmed.

Movant was convicted by jury of assault with intent to do great bodily harm with malice aforethought. He was sentenced to seven years confinement. Judgment affirmed. State v. Amrine, 548 S.W.2d 244 (Mo.App.1977).

Movant raises one point on this appeal.

I
“The trial court erred in denying Mov-ant’s motion to vacate judgment and sentence because Movant was denied effective assistance of counsel in that counsel failed to investigate and locate medical records, said records being readily available and if used, would have completely discredited the victim’s testimony, thus prejudicing Movant’s defense of lack of intent and making the trial a mockery of justice.”

There was appointment of counsel, an evidentiary hearing, findings of fact and conclusions of law by the trial court, thus complying with the ruling in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978).

It has become almost commonplace in post conviction proceedings to attack the conduct of defense attorneys; and while the rights of an individual convicted of a criminal act must be ever safeguarded, post conviction relief can only be granted upon the combination of three major factors. The first is that a mere broad assertion of ineffectiveness of counsel is insufficient, and the circumstances of each case determine whether an investigation is necessary and relief is warranted. Floyd v. State, 518 S.W.2d 700 (Mo.App.1975). The second is that there must be the establishment of facts which prove conduct of counsel has been such to fall below the necessary standard of care and third, that the standard of care has been defined as whether counsel was so ineffective by action or inaction as to deprive his client of a fair trial. Thomas v. State, 516 S.W.2d 761 (Mo.App.1974).

The Movant has the burden of proving these three factors and this is as it should be, for society has rights also. It has rights to protect itself from wrongful or anti-social conduct and it has the further right to minimize the costs in dollars and time incurred by frivolous post conviction proceedings.

The Movant herein alleges that defense counsel rendered him ineffective assistance for failure to investigate Movant’s medical records. Movant allegedly had received a broken jaw and his jaws were wired closed at the time of the offense for which he was convicted.

Movant’s attorney interviewed each witness requested by Movant, including the victim. Upon cross examination, the victim surprisingly testified that someone shouted “get him” or “kill him”. These alleged statements could not be attributed by the victim to Movant. Movant’s contention that the medical records would establish his jaws were wired closed cannot, without anything further, produce the conclusion or even the presumption that the Movant could not speak.

Absent these factors, it is even more illogical to conclude that a failure to procure, examine and offer such records as evidence is tantamount to ineffective assistance of counsel. Indeed, consideration of the transcript of the 27.26 hearing discloses Movant requested, no medical testimony at trial and further, Movant and his (then) counsel discussed the condition of his jaws relative to an alleged armed robbery.

Movant has failed to sustain his burden of proof and the action of the trial court is affirmed.

All Concur.


source: Caselaw Access Project

author: ANDREW JACKSON HIGGINS, Special Judge.

license: Public Domain

text:
    Max L. JENNINGS, Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION of Missouri, Division of Employment Security of Missouri, and D. W. Grace & Sons Construction, Inc., Respondents.
    No. 30219.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Stephens & Drake by Jerold L. Drake, Grant City, for appellant.
    Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for Division of Employment Sec. of Missouri.
    D. J. Chatfield, Jefferson City, for Labor and Industrial Relations Commission of Missouri.
    Before HIGGINS, Special Judge, Presiding, and SWOFFORD, C. J., and WEL-BORN, Special Judge.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment in affirmance of denial of unemployment benefits claimed under Section 288.050 RSMo. The question is whether the finding that the employee left his employment voluntarily without good cause attributable to his work or to his employer is supported by competent and substantial evidence upon the whole record. Reversed.

Max Jennings was employed by D. W. Grace & Sons Construction, Inc., from June 1975 to October 28, 1976. His work was in construction and repair of grain elevators and other facilities. He was required to climb and work “in the air” at least fifty per cent of the time. The height of climb varied from 50 to 110 feet. There was no safety equipment unique to the job.

On October 28, 1976, he and the Grace crew were involved in repair of an elevator at Stanberry when his friend and fellow employee, “my former man underneath me,” Charles Hill, was knocked off the top of the elevator and fell 120 feet to his death. “I didn’t actually see him get hit. All I seen was that he was flying through the air.”

The Grace crew did not work any more that week; some of the crew returned to work the middle of the following week. A different crew was hired to finish the Stan-berry job. Mr. Jennings told his employer he would not be at work for awhile, and the employer understood. Mr. Jennings “felt upset and * * * kind of responsible and nervous. * * * just didn’t feel good.” He had no such feelings before the accident. He and his wife discussed their problems following the accident. She felt “it could have been me just as well as it could have been Charlie Hill. * * * We decided I shouldn’t climb anymore.”

Mr. Jennings met with his employer around November 15, 1976, and “told him that under the circumstances and everything that I didn’t want to do any more climbing * * * but, I’d go ahead and go work for him on the ground.” He hoped to be able to climb again, “a little later next spring, maybe. * * * He said he didn’t have any work so I suppose it’s the same thing as being fired or laid off. However you want to put it.” The employer acknowledged Mr. Jennings to be a good employee and encouraged him to seek unemployment benefits. He made such application and also sought, unsuccessfully, new employment.

Mrs. Jennings confirmed her husband’s condition after the accident of October 28, 1976. “ * * * he was very upset, worked up * * * he’d wake up in dreams at nights and dream of what happened. He was very upset, nervous, and they wasn’t nothing I could do or say or anything to calm him * *

Mr. Grace had no way to keep Mr. Jennings on the job “as a supervisor,” and “there is no way that you can work on the ground all the time.” He offered the same kind of work that Mr. Jennings did before the accident, but he did not return to work after the accident.

The appeals tribunal found and decided:

“The claimant worked for the employer in the construction business for about two, years. He last worked on October 28, 1976, when another employee in the crew where the claimant was working making repairs on a grain elevator at Stanberry, Missouri, was killed in a fall. No further work was performed following the accident on that date and the employer’s president later obtained another crew to complete the work. The employer president agreed with the claimant that he should take a few days off because of the death of his friend and fellow worker. After discussing the circumstances with his wife the claimant met with the employer president about two weeks later to inform him that the claimant and his wife had decided that the claimant would not continue working for the employer unless he be provided work that required no climbing. The employer president was unable to provide the claimant further work that required no climbing and the claimant elected to quit his job.
******
“ * * * the claimant became dissatisfied and quit his job after another employee was killed in a fall and the employer could not provide the claimant with further employment that required no climbing. The claimant’s dissatisfaction with his work because it required climbing was not good cause within the meaning of the * * * provisions of the Law for quitting. There was no change in the hiring agreement. The work available to the claimant was the same work he had previously performed. By his refusal to continue his employment the claimant brought about his separation from work and it therefore was voluntary. * * * that the claimant left his work voluntarily on October 28, 1976, without good cause attributable to his work or to his employer.”

Review of the foregoing decision was denied by the Industrial Commission and it became the decision of the Industrial Commission for purposes of judicial review. § 288.200(1) RSMo.

As to questions of fact, review is limited to ascertaining upon the whole record whether the Commission could have made its findings and decision, viewing the evidence in the light most favorable to the award; as to questions of law, the court is not bound by decisions of the Commission; and whether the favorable evidence establishes good cause is a question of law. Belle St. Bank v. Ind. Com’n Div. of Emp. Sec., 547 S.W.2d 841, 844 (Mo.App.1977). See also Union-May-Stern Co. v. Industrial Com’n, 273 S.W.2d 766, 768 (Mo.App.1954); LaPlante v. Industrial Com’n, 367 S.W.2d 24, 27 (Mo.App.1963); Citizens Bank of Shelbyville v. Industrial Com’n, 428 S.W.2d 895 (Mo.App.1968).

The statement demonstrates competent and substantial evidence upon the whole record to support the finding that the employee voluntarily quit his employment. The remainder of the question requires examination of the conditions under which he quit.

The evidence was not that the employee was “dissatisfied,” which is to say he was “offended,” “vexed,” or “annoyed” with his job. Roget’s Thesaurus of the English language in Dictionary Form, Maw-som, Rev. Ed. 1936. It shows rather that plaintiff’s decision to return to work on the ground and not to work further at the heights previously involved stemmed from his nervous, upset condition, fear of heights, and fear of the fate of his friend following the death of his friend. There was thus a causal connection between the work and the employee’s reason for avoiding the climbing involved; and the reason was one “which reasonably would motivate the average able-bodied and qualified worker in a similar situation to terminate his or her employment.” Belle St. Bank v. Ind. Com’n, supra, 547 S.W.2d l. c. 846.

The case is similar to Bussman Mfg. Co. v. Industrial Com’n of Missouri, 327 S.W.2d 487 (Mo.App.1959), where claimant took leave of absence from employer’s factory for one month because of sickness and, when she returned, the only job offered her was her same work on a solder cutting machine which she refused because it made her nervous and she was to avoid work which made her nervous. The court held she quit work with good cause attributable to her employment within the meaning of the statute. Similarly, in Wilson v. Labor & Indus. Rel. Com’n, 573 S.W.2d 118 (Mo.App.1978), the record was insufficient to support finding that claimant left his employment without good cause attributable to his employment where claimant, primarily employed as a truck driver, also performed other work which required him to lean over and into a box resulting in injury to his back. He refused to resume the secondary work the following day because of the injury and injury-producing condition.

The legal deficiency in the Commission’s decision is the failure to consider the whole record. “[A]n administrative agency may not arbitrarily disregard or ignore the testimony of a witness not shown to have been disbelieved or impeached by the agency. * * * Only if the agency makes a specific finding that the undisputed or unim-peached evidence is not entitled to credibility and is unworthy of belief may it be said that the evidence may be disregarded.” Wilson v. Labor & Indus. Rel. Com’n, supra, 573 S.W.2d l. c. 121. Both Mr. and Mrs. Jennings testified that Mr. Jennings was upset, nervous, and afraid following the accident, and that he would not resume his work if it involved climbing. Such testimony was not found incredible or unworthy of belief. It stands unimpeached and uncon-tradicted, and the employee’s problem was understood by the employer. Accordingly, the finding that the employee left without good cause is without evidentiary support by competent and substantial evidence on the whole record because of this failure of a factual or testimonial basis to refute the employee’s assertion that he did not return to work because of his nerves, fears, and upset condition.

Judgment reversed and cause remanded with direction to remand the case to the Division of Employment Security for determination of benefits which may be due the employee.

All concur.


author: PER CURIAM.

text:
    Randall L. KIENE, Respondent-Appellant, v. Charlene R. KIENE, Appellant-Respondent.
    No. KCD 30272.
    Missouri Court of Appeals, Western District.
    April 2, 1979.
    Max W. Foust, E. Wayne Taff, Kansas City, for respondent-appellant.
    Robert C. Paden and Michael J. Albano, Independence, for appellant-respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   PER CURIAM.

This is an action for dissolution of marriage wherein both parties appealed from the judgment and decree entered by the court below. The transcript on appeal, consisting of 490 pages, was filed in this Court on December 21, 1978, but the briefing schedule was suspended pending a settlement conference before the Honorable J. Donald Murphy. On March 1, 1979, the parties to this action filed their joint motion requesting that this Court consider this cause upon the record proper without the submission of briefs, and further requested this Court to reverse and remand this cause to the court below with directions that the order, judgment and decree entered below on May 19, 1978, from which this appeal was taken, be modified to correct errors therein, in accordance with the stipulation of the parties, attached to their joint motion. The modifications requested relate only to three items of the decree below pertaining to the division of marital property. The request of the parties is within the authority of this Court upon this appeal and serves to promote judicial economy, and will, if granted, save time and expense of the parties and of the courts, and is authorized by Koone v. Montgomery et al., 114 S.W.2d 71B[1] (Mo.App.1938).

The stipulation of the parties filed here is as follows:

“STIPULATION

Come now the parties, by and through their attorneys of record, and stipulate as follows:

1. The above appeal should be submitted upon the record alone, without submission of briefs;

2. The order of the Court below dated May 19, 1978, was in error in the following respects:

a. The Court erred in setting aside to Charlene Kiene as her separate property three-fourths (3/4ths) of the stock in Platte County Communication Co.;
b. The Court erred in setting aside to Charlene Kiene as her separate property one-half (V2) of the stock in Clay-Platte Home Theatre; and,
c. The Court erred in setting aside to Charlene Kiene as her separate property the amount of Two Thousand Dollars ($2,000.00) in cash, which amount should have been Twenty-Two Thousand Dollars ($22,000.00).

3. The order and judgment of the Court below dated May 19, 1978 was in all other respects correct and without error.

4. The judgment and order of the Court below dated May 19, 1978, should be reversed and remanded with instructions that judgment be entered below as follows:

a. That Charlene Kiene have set apart as her separate property the cash amount of Twenty-Two Thousand Dollars ($22,000.00), and that portion of the order and judgment awarding her Two Thousand Dollars ($2,000.00) in cash should be modified;
b. Randall L. Kiene should have set apart as his separate property all of the stock in Platte County Communication Co., and that part of the order and judgment dividing such stock between the parties should be modified;
c. Randall L. Kiene should have set apart as his separate property all of the stock in Clay-Platte Home Thea-tre, and that portion of the order ánd judgment dividing said stock between the parties should be modified; and
d. All other portions of the order and judgment of the Court dated May 19, 1978 should be affirmed and remain as ordered and adjudged by the Court below on May 19, 1978.

PADEN, WELCH, MARTIN & ALBANO, P.C.

By s/ Michael J. Albano_ Michael J. Albano

By s/ Robert C. Paden_ Robert C. Paden

Law Building

311 West Kansas

Independence, Missouri 64050

(816) 836-8000

Attorneys for Appellant-Respondent

MORRIS & FOUST

Bv s/ Max W. Foust_ Max W. Foust

By s/ E. Wavne Taff_ E. Wayne Taff

1700 Home Savings Bldg.

1006 Grand Avenue

Kansas City, Mo. 64106

(816) 474-6050

Attorneys for Respondent-Appellant”

Upon consideration of the record proper together with the foregoing stipulation of the parties, it is the view of this Court that the decree below should be amended and modified in the limited respects requested.

The judgment and decree of the court below of May 19, 1978 is therefore reversed and the cause remanded with directions that the same be amended and modified in the respects stipulated to by the parties, as contained in paragraphs 17, 18 and 21 of said judgment, and that said judgment in all other respects remain as originally entered by the court below. The costs of this appeal are assessed equally against each of the parties hereto.


author: TURNAGE, Judge.

text:
    SHERWOOD ESTATES HOMES ASSOCIATION, INC., Plaintiff-Appellant, v. John H. WATT and Donna R. Watt, Defendants-Respondents.
    No. KCD 30307.
    Missouri Court of Appeals, Western District.
    April 2, 1979.

      Michael P. Keleher, Duggan, Keleher & Svetlic, Kansas City, for plaintiff-appellant.
    William E. Shull, Gettig, Coulson & Shull, Kansas City, for defendants-respondents.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   TURNAGE, Judge.

Sherwood Estates Homes Association brought an action to enjoin John and Donna Watt from maintaining a kennel-storage shed on a lot owned by them in Sherwood Estates. The court sustained a motion to dismiss Sherwood’s petition because it was barred by § 516.095, RSMo 1969, and Sherwood appeals.

On this appeal Sherwood contends its action was not barred by § 516.095 because the facts in this case do not fall within the purview of that section, that the Watts through their predecessor in title agreed not to rely on any statute of limitations, and that § 516.095 is unconstitutional. Affirmed.

The Watts are the owners of a lot in Sherwood Estates, an addition in Kansas City, Clay County, Missouri. A declaration of restrictions covering Sherwood Estates was recorded by the developer of that addition in 1955. The Sherwood Estates Homes Association, Inc., a not for profit corporation, was organized for the purpose of enforcing the building restrictions and to perform certain duties of repair and maintenance of the common areas in the addition.

The restriction sought to be enforced is as follows:

“No outbuilding shall be permitted on any lot in the district.”
Outbuilding is defined as:
“An enclosed covered structure not directly attached to the dwelling which it serves.”

In response to Sherwood’s petition, the Watts filed an answer affirmatively pleading the bar of § 516.095. With the motion to dismiss the Watts filed affidavits from Frank M. Cimino and Vincie Cimino stating they, as former owners of the lot, had caused a building to be constructed on it in the summer of 1966 to be used as a dog kennel, and such building, which was subsequently used for storage, had been in continuous visible existence on the same lot since 1966.

The petition to enjoin the maintenance of the building was filed on October 5, 1977. The parties stipulated to the facts stated in the affidavits filed by the Ciminos, so there was no dispute that the building was constructed in the summer of 1966 and the action was filed in October, 1977. Section 516.095, enacted in 1963, so far as applicable here, provides:

“No action for breach of a covenant restricting use of land caused or resulting from the size, height, cost or location of buildings or other visible improvements on the premises in violation of the covenant, including a proceeding to compel the removal of buildings or visible improvements on the land because of the violation of the terms of the covenant, shall be commenced after two years from the date this section takes effect or from the date when the right of action accrues, whichever is the later.”

Since the court considered matters outside the pleadings, under Rule 55.27(a) the motion to dismiss should have been treated as a motion for summary judgment and disposed of as provided in Rule 74.04. Kelley v. Schnebelen, 545 S.W.2d 332, 334[1] (Mo.App.1977).

Sherwood’s first point contends that § 516.095 does not bar this action because that section relates only to covenants restricting the “size, height, cost or location of buildings or visible improvements,” and thus should not apply since the restriction sought to be enforced here is the outright prohibition of the existence of any outbuilding.

Sherwood’s contention must be rejected since the restriction in this case prohibited an outbuilding not directly attached to the dwelling which it served, thus the prohibition rests on whether the building is attached to the dwelling. Therefore, the question in this case is solely one of location — whether the outbuilding is located so as to be connected to the dwelling — and as such, is within the purview of § 516.095. Furthermore, § 516.095 covers actions for the removal of buildings, which is clearly the object of this suit. Since the gist of the restriction is the location of a type of building and this case seeks removal of a building, it falls squarely within the provisions of § 516.095, so the two-year bar imposed by that statute is applicable.

Sherwood next contends the Watts entered into a valid agreement not to raise an affirmative defense based on any statute of limitations because the restrictions involved contained the following provision:

“ . . . and failure of the Company or owner or owners of any other lot or lots shown on this plat to enforce any of the restrictions herein set forth at the time of its violation shall in no event, be deemed to be a waiver of a right to do so thereafter.”

It should first be noted that the provision relied on by Sherwood does not relate to any defense, but rather relates to the bringing of actions. For that reason, nothing in the provision applies to the raising of an affirmative defense. Further, Sherwood contends this provision demonstrates a waiver. It is well settled a waiver is the intentional relinquishment of a known right. Greenberg v. Koslow, 475 S.W.2d 434, 438[7, 8] (Mo.App.1972). There is nothing in the provision to indicate an intention on the part of Watts or their predecessor in title to relinquish any right to rely on the statute of limitations. There is no merit in Sherwood’s contention.

Sherwood finally contends § 516.-095 impairs the obligation of the restrictions in violation of Art. 1, § 13, of the Missouri Constitution. Sherwood contends the restrictions constitute a contract and the operation of a statute of limitations which bars an action to enforce the restrictions impairs the obligation of this contract. Sherwood’s contention has been squarely ruled against it by the Supreme Court of the United States in City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) and in Kreyling v. O’Reilly, 97 Mo.App. 384, 71 S.W. 372, 374 (1902). In Kreyling a statute of limitations was passed which barred the foreclosure of mortgages more than two years after the notes secured thereby had been barred. The argument was made that this imper-missibly impaired the obligation of contracts. The court held the statute did not operate to impair the obligation of contracts because a reasonable time was allowed for the bringing of actions. Sherwood has cited no case holding that a statute of limitations which allows a reasonable time to bring an action is unconstitutional as an impairment of contracts. In fact, all of the authorities are to the contrary. 16A C.J.S. Constitutional Law, § 394, pp. 79-80. No contention is made that § 516.095 does not allow a reasonable time within which to bring an action.

The Watts have filed a motion for damages for the taking of a frivolous appeal. While the issues raised by Sherwood have been easily resolved, this court recognizes that no cases have been decided under § 516.095 up to this time with reference to the first point. Except for that fact, this appeal would be frivolous and damages would be assessed under Rule 84.19.

The judgment should be modified to reflect the motion to dismiss is treated as a motion for summary judgment. As modified, the judgment is affirmed.

All concur.

      . Although not raised by the parties, it should be noted Sherwood’s action would also be barred by § 516.010, RSMo 1969, under the holding in McLaughlin v. Neiger, 286 S.W.2d 380, 384[5] (Mo.App.1956) in which it was held that a covenant imposing restrictions within a given area creates an easement in the owner of each lot in all of the lots affected by the restrictions. The court held this easement constitutes a hereditament so an action for the breach of the restrictive covenants is an action to restore the easement and thus comes within § 516.010 which bars actions to recover hereditaments after ten years.

      . Art. 5, § 3, of the Constitution, effective January 2, 1979, vests exclusive jurisdiction in the Supreme Court of questions involving the validity of a state statute; however, that section as amended in August, 1970, did not so provide. The notice of appeal was filed prior to January 2, 1979, and the construction of the Federal or State Constitution is not involved. The attack made on this section is not that it is unconstitutional but it is invalid only if it is construed to result in an impairment of the obligation of contracts. This does not in fact raise a constitutional issue. Forbis v. Associated Wholesale Grocers, Inc., 513 S.W.2d 760, 767[10, 12] (Mo.App.1974).


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Ferrell KYLES, Appellant.
    No. 40123.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.
    Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Burglary second degree.

The jury found defendant guilty. The court sentenced him to four years under the Second Offender Act.

Defendant complains about the court’s comment to the jury, immediately after giving the MAI-CR 1.10 (hammer) instruction: “I will give this to the foreman. Would you retire and decide this case.” He says this additionally instructed the jury, erroneously, as to the necessity of reaching a verdict in language not authorized by the pattern instruction. We disagree.

The jury deliberated for approximately four hours before the “hammer” was given. The instruction was read to, and given to, the jury. The court’s additional comment was not coercive in nature and was not prejudicial to the defendant. State v. Raspberry, 452 S.W.2d 169 (Mo.1970). The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: GUNN, Judge.

text:
    Larry CHAPMAN; Appellant, v. STATE of Missouri, Respondent.
    No. 40632.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 3, 1979.
    Joseph V. Neill, St. Louis, for appellant.
    Paul Robert Otto, Asst. Atty. Gen., John D. Ashcroft, Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant’s rule 27.26 motion to set aside and vacate his conviction and sentence for first degree robbery was denied without evidentiary hearing. His appeal from that denial raises two points: that the trial court erred in failing to appoint counsel to assist him in the preparation of his motion; that a question of fact existed as to whether ineffective assistance of counsel caused his guilty plea to be involuntary. We affirm.

The underlying theory of movant’s rule 27.26 motion for relief is inadequate assistance of counsel: He contends that his trial court counsel failed to make a proper investigation to determine the strength of the state’s case and argues that he needed aid of counsel to adequately express his plight in his rule 27.26 motion. Movant looks to Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), for succor for his contention that he is entitled to assistance of a lawyer in the preparation of this motion. True, Fields did bring about a rule 27.26 change requiring appointment of counsel after an indigent files a pro se motion under the rule. But the application of Fields was specifically designated to be prospective from November 6, 1978. Movant’s motion was filed January 5,1978, so Fields does not apply insofar as movant’s request for .the aid of counsel in the preparation of his motion. Johnson v. State, 574 S.W.2d 957 (Mo.App.1978).

While movant contends that the record does not conclusively support the volun-tariness of his guilty plea, the record absolutely refutes that contention, and denial of the motion without evidentiary hearing was proper. Hartrum v. State, 575 S.W.2d 2 (Mo.App.1978); Edwards v. State, 569 S.W.2d 779 (Mo.App.1978); Breeland v. State, 568 S.W.2d 564 (Mo.App.1978). We see no need to detail the testimony of mov-ant’s guilty plea except to observe that movant specifically acknowledged his participation in the armed robbery; that he fully understood consequences of his plea and freely admitted his guilt of the charges against him; that he was satisfied with his counsel’s advice and consultation; that he was familiar with the range of punishment and no promises had been made regarding his sentence in exchange for his plea; that he was “pleading guilty of [his] own free will because [he was] guilty of” the charges against him.

Each of the points raised in mov-ant’s motion is either disproved by the record or contains no factual allegations requiring relief. Movant’s claim that his counsel failed to file a motion to suppress certain evidence is not pertinent as such a motion would relate to the matter of strategy, which is not relevant in this 27.26 proceeding. Lewis v. State, 513 S.W.2d 772 (Mo.App.1974); State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). The allegation that his plea was based on the false hope of probation affords no basis for relief. McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978). His charge relating to his counsel’s failure to fully investigate the case before the guilty plea was made is not self proving and in this case did not interfere with his obvious voluntary and intelligent choice to plead guilty. Barber v. State, 564 S.W.2d 914 (Mo.App.1978); Chapman v. State, 564 S.W.2d 264 (Mo.App.1978). And his assertion that he did not fully agree with the prosecutor’s recitation of the facts of the crime is immaterial, as in his own recitation of the facts movant fully inculpated himself in the crime with which he was charged.

Effective assistance of counsel goes only to the issue of whether the guilty plea was voluntary and knowingly made, and the record here firmly establishes the requisite knowledge and voluntariness of the plea. Jackson v. State, 572 S.W.2d 181 (Mo.App.1978); Keller v. State, 566 S.W.2d 260 (Mo.App.1978).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.


author: FONES, Justice. FONES, Justice.

text:
    GENERAL SMELTING AND REFINING, INC., an Aetna Life and Casualty Insurance Company, Appellants, v. Terry Richard WHITEFIELD, Appellee.
    Supreme Court of Tennessee.
    Feb. 12, 1979.
    W. A. Moody, Nashville, for appellants.
    Thomas L. Reed, Jr., Murfreesboro, for appellee.
   OPINION

FONES, Justice.

This workmen’s compensation case arises out of devastating second and third-degree burn injuries plaintiff, Terry Whitefield, a twenty-five year old manual laborer, received in the course of his employment with General Smelting and Refining. The learned trial judge found plaintiff retained permanent impairment to four scheduled members, assessed his disability at fifty percent to the body as a whole and ordered defendant to pay plaintiff the sum of $85.00 per week for 200 weeks and $360.00 for medical-related transportation expenses incurred by plaintiff.

On appeal, the employer and its insurance carrier, Aetna Life and Casualty Insurance Company, challenge the award, asserting there was no material evidence to support either the finding of disability to the individual members or the verdict granting fifty percent permanent disability to the body as a whole.

On February 6, 1976, plaintiff was working on a furnace when a problem developed with a pump, requiring plaintiff and another worker to use buckets to catch the overflowing molten lead, which maintained a constant temperature of 2000 to 2500 degrees Fahrenheit. While attempting to pull away a bucket, plaintiff slipped and fell on top of the overflowing hot liquid. Plaintiff testified he fell into the liquid in a “pushup” stance but was pulled out by his collar by his co-worker. Plaintiff was rushed to Williamson County Hospital and then was transferred to Vanderbilt Hospital, where he received treatment for second and third-degree burns to twelve percent of his body from February 6 until April 3. After he was released, however, plaintiff continued to receive out-patient therapy treatment at Vanderbilt Hospital, which necessitated his travelling sixty miles round-trip from plaintiff’s home in Franklin. On July 11, 1976, plaintiff was again hospitalized for four days to have the fingers on his right hand straightened. At trial, plaintiff testified as to the nature of his present disabilities, showed his injuries to the trial judge and provided a numerical estimate on the “practical disability” to his four extremities — fifteen percent to left arm, fifty percent to right arm, twenty-five percent to left leg and thirty percent to right leg. He also complained of general discomfort and poor circulation in his arms and legs. Plaintiff’s mother testified concerning the extent of his disabilities, as she observed in their home.

The only medical evidence introduced was the deposition of Dr. David G. Bowers, Jr., a plastic surgeon on the staff of Vanderbilt Hospital. Doctor Bowers deposed that he treated plaintiff during the periods in question, describing the nature of the reconstructive surgery and skin grafts that he performed. Based upon the American Medical Association rating book, Dr. Bowers assessed a thirty-six percent impairment to plaintiff’s right hand because of the limited flexibility in four fingers, which translated into a thirty-two percent rateable impairment to his right upper extremity. Doctor Bowers also stated that there were scars on plaintiff’s left hand and feet as a result of the burn injuries and skin grafts. However, though Dr. Bowers assessed no rateable impairment to plaintiff’s feet and left arm, “Technically,” he said, “we have to state that it is not as durable as normal skin and it is more susceptible to injury and disease.” The context of the doctor’s testimony leaves no doubt but that plaintiff’s •increased exposure to injury and disease is of permanent duration.

Appellants assign as error that there was no material evidence to support the trial judge’s finding that plaintiff sustained “impairment or disability” of fifty percent to his right arm, twenty percent to his left hand, twenty-five percent to his right foot and fifty percent to his left leg. They contend that at most Dr. Bowers’ deposition only supports a finding of a thirty-two percent impairment to plaintiff’s right upper extremity.

It is well established that the decision of the trial judge will not be disturbed if any material evidence supports it. E. g., Davis v. Gulf Ins. Group, 546 S.W.2d 583, 585 (Tenn.1977). However, the causation or permanency of an injury must be established by expert medical testimony. E. g., Floyd v. Tennessee Dickel Distilling Co., 225 Tenn. 65, 68, 463 S.W.2d 684, 686 (1971). In the case at bar, Dr. Bowers’ deposition establishes not only that plaintiff had a rateable impairment to his right upper extremity, but also that the injuries to his other members would be more susceptible to injury and disease in the future; therefore, the permanency of plaintiff’s injuries has been established by expert medical testimony. Where medical testimony establishes the permanency of an injury, lay testimony becomes admissible and relevant on the issue of the extent of the work disability. Smith v. Hale, 528 S.W.2d 543, 545 (Tenn.1975). In assessing the extent of the disability, the trial judge may consider “many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts.” Employers Ins. Co. v. Heath, 536 S.W.2d 341, 343 (Tenn.1976); accord, Trane Co. v. Morrison, 566 S.W.2d 849, 851 (Tenn.1978).

The trial judge saw the injuries plaintiff retained as the result of his serious burns and heard testimony from plaintiff and his mother concerning the extent of his disability. We feel that this was competent material evidence to support the award. It is not the province of this Court to determine if the evidence preponderates in favor of the award, but only whether there was material evidence to support the trial judge’s findings. Id.

Finally, appellants contend that the trial judge was precluded from awarding permanent partial disability to the body as a whole because he assessed individual disabilities to four scheduled members. In Tennlite, Inc. v. Lassiter, 561 S.W.2d 157, 159 (Tenn.1978), however, this Court held that “multiple injuries of three or more members are not scheduled injuries under § 50—1007(c).” As we expressed in Lassiter, “By providing specific formulas for combined injuries to certain members the legislature has recognized the virtually uncon-trovertible fact that a combination of injuries to members of the body has a greater disabling effect than the mere arithmetical sum of individual scheduled awards would reflect.” Id. at 158. T.C.A. § 50-1007 specifically provides, “All other eases of permanent partial disability not above enumerated shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.” Thus, since under Lassiter plaintiff’s injuries to four members were not injuries to scheduled members under T.C.A. § 50— 1007(c), the trial judge did not err in awarding permanent partial disability to the body as a whole.

Affirmed. Costs are adjudged against appellants.

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

OPINION ON PETITION TO REHEAR

FONES, Justice.

First, the petition reargues facts thoroughly considered in rendering the opinion in this case.

Second, the petition suggests that the decision in this case is contrary to the principles announced in Owens Illinois, Inc. v. Lane, 576 S.W.2d 348 (1978). We disagree.

The expert- medical testimony in this case affirmatively stated that the burned skin was not as durable as normal skin and was more susceptible to injury and disease in a context leaving no doubt that that condition was of permanent duration, whereas in Owens Illinois, supra, the medical testimony was that the odds were 40% that the injury would be permanent and 60% that it would not.

The petition to rehear is denied.

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


author: EWELL, Judge.

text:
    CITY OF HUMBOLDT, Tennessee, Plaintiff-Appellant, v. Guy MORRIS (Barbara Palmer), Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 25, 1978.
    Certiorari Denied by Supreme Court Nov. 20, 1978.
    G. Griffin Boyte, Humboldt, for plaintiff-appellant.
    Hal Holmes, Trenton, for defendant-ap-pellee.
   EWELL, Judge.

On January 27,1977, the Quarterly County Court of Gibson County, Tennessee, authorized the issuance and sale of school bonds in the total principal amount of $7,500,000.00 pursuant to the authority granted by Chapter 7 of Title 49, being Sections 49-701, et seq., of Tennessee Code Annotated. For the retirement of the bonds there was included in the financial budget for the fiscal year July 1,1977-June 30, 1978, adopted by the Quarterly County Court on July 11, 1977, a tax of sixty cents per one hundred dollars assessed value of all assessable property in Gibson County. The anticipated revenue from this tax for the fiscal year was $648,000.00.

On August 23, 1977, the entire issue of $7,500,000.00 was sold at an average coupon rate of 5.1273 per cent per annum. The bonds were dated August 1, 1977, and provided for the payment of interest from date. On October 6, 1977, the County Judge delivered the bonds to the purchasers, receiving a total sum of $7,571,530.69 in two checks, one in the amount of $7,500,-000.00 representing the principal amount of the bonds and another in the amount of $71,530.69 representing accrued interest on the bonds from August 1, 1977, to October 6, 1977.

The County Judge, on October 6, 1977, invested the funds in securities maturing thirty or thirty-one days from date, and upon maturity the original sum of $7,571,-530.69 and earnings thereon of $40,468.06 were delivered to Guy Morris, Trustee of Gibson County, Tennessee. On October 10, 1977, and prior to receipt of any of the funds by the Trustee, the Quarterly County Court of Gibson County, without recommendation from the Gibs,on County Board of Education, directed the Trustee to transfer the $71,530.69, being the interest which accrued on the bonds from August 1, 1977, the date of the bonds, to October 6, 1977, the date of the delivery of the bonds, from the debt service account to the special school account for distribution, with the $7,500,000.00 principal, to the various school systems operating in the County pursuant to Section 49-711, Tennessee Code Annotated.

Following receipt of all of the funds on November 7, 1977, the Trustee disbursed the $7,500,000.00 principal and the $40,-468.06 earnings to the cities and school districts operating schools in Gibson County independent of the County on the basis of average daily attendance as provided by statute, and he deposited the $71,530.69 accrued interest in the debt service account for use by the County during fiscal 1977 — 78 toward payment of the interest on the bonds in the total amount of $572,501.86.

The City of Humboldt, Tennessee, a municipal corporation situated in Gibson County, operates a school system independent of Gibson County, and it received from the Trustee of Gibson County its pro rata share of the funds disbursed but insisted that it was further entitled to its pro rata share of the $71,530.69 deposited by the Trustee to the debt service account. Upon the failure and refusal of the Trustee to disburse that portion of the funds, the City of Humboldt brought suit against Guy Morris, Trustee of Gibson County, Tennessee, in the Law Division of the Law and Equity Court of Gibson County, demanding that an order issue directing the defendant to pay over to plaintiff its pro rata portion of the undistributed funds, relying upon the provisions of Section 49 — 711, Tennessee Code Annotated. The defendant answered insisting that he was not required to distribute the $71,-530.69 which was paid by the purchasers of the bonds as accrued interest to be held in trust for the eventual holders of the bonds in partial satisfaction of the liability of the County to such bond holders. In lieu of an evidentiary hearing the parties entered into a Stipulation of Fact which was filed in the case and constituted all of the evidence considered by the Trial Court. The case was heard by Judge Ralph R. Lawler without the intervention of a jury upon the pleadings and Stipulation of Fact, and he held that the funds in question should remain in the hands of the defendant as Trustee of Gibson County in the debt service account, dismissing the case at plaintiff’s cost.

Plaintiff appealed assigning as error the action of the Trial Court in holding that the funds in question remain in the hands of the Trustee in the debt service account.

This case turns upon the construction of Chapter 7 of Title 49 of Tennessee Code Annotated entitled “Bonds for School Purposes” and specifically Sections 49-710 and 49-711, which are as follows:

49-710. Proceeds of sale. — The money arising from said sale of school bonds shall be turned over to the trustee of said county, and shall be kept separate and apart from all other funds, and shall be paid out only for the purposes and in the manner provided in this chapter, and said trustee shall be allowed no commission for receiving or disbursing said funds. Any bond funds not put to immediate use shall be deposited at interest by the trustee until needed. The interest arising therefrom shall be used only towards retiring the school bond indebtedness or, upon recommendation of the county board of education and concurrence of the quarterly county court, shall become a part of the proceeds of the sale of the bonds to be used for the purposes authorized by this chapter. .
49 — 711. Proportional payments to cities —Waiver.—In counties having a city or cities operating schools independent of said county, the trustee of said county shall pay over to the treasurer of said city that amount of said funds which shall bear the same ratio to the entire amount arising from the provisions of this chapter as the average daily attendance of the year ending June 30th next preceding the sale of the bonds of said city or cities bears to the entire average daily attendance of the year ending June 30th next preceding the sale of the bonds of said county; provided, however, that the said funds paid over to the said city treasurer shall be kept separate from all other funds in the manner and for the purposes herein provided for said county funds to be used. Provided that the governing body of any city may, by ordinance regularly adopted, waive its right to all or a part of any funds due to it under the provisions of this section and return said funds to the trustee of said county for the purposes originally provided. . . .

The question presented is whether or not, under the facts stipulated, the above statutory provisions require the Trustee of Gibson County to distribute to the cities and school districts operating schools in Gibson County independent of the county, on the basis of average daily attendance, the interest accrued on the bonds from date thereof to date of delivery to the purchasers. We think not and, therefore, affirm the Trial Judge.

The enabling resolution adopted by the County Court provided in Section 8 that “none of said bonds shall be sold for less than par and accrued interest to date of delivery” and in Section 9, the following:

“The proceeds of the sale of the bonds shall be turned over to the County Trustee of the County and shall be paid out for the purposes and in the manner required by law and this resolution.”

The resolution contains no specific directive as to the accrued interest to date of delivery, but expressly provides that the proceeds be paid out for the purposes and in the manner required by law.

T.C.A., Section 49-710 likewise fails to address specifically the disposition of accrued interest to date of delivery of the bonds but does provide that the interest arising from the deposit of the bond funds at interest until needed be used only towards retiring the school bond indebtedness unless upon recommendation of the County Board of Education and concurrence of the Quarterly County Court it is determined that such interest become a part of the proceeds of the sale of the bonds to be used for the purposes authorized by law. At no point in the entire chapter is the question of the disposition of accrued interest to date of delivery of bonds dealt with directly.

The legislature in Section 49 — 710 made explicit provision for the disposition of interest earned on the bond funds after they are received by the trustee. The interest accrued on the bonds between the date of the bonds and the date of their delivery stands in the same status, being also interest received by the county on the principal of the bonds. A logical, reasonable and proper use of the interest in both instances would be toward the retirement of the bond indebtedness since the county must, in due course, pay to the holders of the bonds interest on the same funds which made possible the receipt of interest by the county-

Taking the Chapter as a whole, viewing it in light of its general purpose and resorting to the obvious and necessary implications and intendments, we find that the legislature intended that the preferred and favored use of all interest income to the county arising from the principal of the bonds, including accrued interest to date of delivery of the bonds as well as interest arising from the investment of the principal of the bonds after receipt thereof, was toward retiring the bond indebtedness; and, further, that the alternate or secondary use of such interest income, namely becoming a part of the proceeds of the sale of the bonds by being added .thereto and distributed therewith, was authorized by the legislature only upon recommendation of the County Board of Education and concurrence of the Quarterly County Court. T.C.A., Section 49-710.

The rule for the construction of statutes, to which all others must yield, is that the intention of the legislature must prevail. Southern v. Beeler, 183 Tenn. 272, 195 S.W.2d 857 (1946). That which is implied in a statute is as much a part of it as that which is expressed. Mayhew v. Mayhew, 52 Tenn.App. 459, 376 S.W.2d 324 (1964).

In this case the Trustee handled the funds in question in the manner preferred by statute and dictated by good business judgment and sound financial practice. The plaintiff was in no way prejudiced or wronged and suffered no financial loss as a consequence thereof. Since the Gibson County Board of Education at no time recommended that the funds in question become a part of the proceeds of the sale of the bonds, we do not agree that T.C.A., Section 49 — 711 requires the same be distributed as insisted by the City of Humboldt.

Accordingly, the assignment of error is overruled and the decree below affirmed with cost of appeal adjudged against the appellant.

MATHERNE, P. J., and SUMMERS, J., concur.


author: MATHERNE, Judge.

text:
    McDOWELL DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. Glenn FERGUSON, Trustee, Metropolitan Government of Nashville and Davidson County, Tennessee and Jane Ann Woods, Commissioner of Revenue of the State of Tennessee, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Aug. 25, 1978.
    Certiorari Denied by Supreme Court April 9, 1979.

      J. Michael Franks, Manier, White, Herod, Hollabaugh & Smith, Nashville, for plaintiff-appellant.
    John P. Long and James D. Luther, Nashville, Metropolitan attorney for Metro Government.
   MATHERNE, Judge.

The plaintiff sues for a refund of taxes paid to the defendant metropolitan government for the years 1972 through 1976 on approximately 10 acres of land erroneously assessed to the plaintiff for those years. The plaintiff alleged that the taxes were' assessed and paid through the mutual mistake of the parties. The defendants filed a motion to dismiss on the ground that the statutory remedy for recovery of erroneous tax payments had not been complied with and, accordingly, the complaint failed to state a claim upon which relief could be granted.

By agreed order the chancellor dismissed Jane Ann Woods, Commissioner of Revenue of the State of Tennessee as not a proper nor necessary party to the lawsuit. The chancellor sustained the motion of the defendant metropolitan government to dismiss the lawsuit because of want of jurisdiction of the subject matter. The plaintiff appeals. The only issue is whether the plaintiff may file suit to recover taxes paid by mutual mistake of the parties where those taxes were not paid under protest.

In Fentress County Bank v. Holt (Tenn.1976) 535 S.W.2d 854, the Court summarized the manner by which erroneously paid municipal and county taxes may be refunded. Citing State v. Delinquent Taxpayers (Tenn.1975) 526 S.W.2d 453, the Court held that under present statutes municipal taxes must be paid under protest and suit brought for their refund, T.C.A. §§ 67-2303, 2313, or administrative review of the assessment through local and state boards of equalization must be sought. Under the authority of Holloway v. Putnam County (Tenn.1976) 534 S.W.2d 292, the Court in Fentress County Bank held that taxpayer has two remedies for the recovery of county taxes, (1) the administrative procedure provided under T.C.A. § 67-2301 and (2) payment under protest and a common law suit for recovery. The Court further held that the aggrieved taxpayer could challenge the assessment of county taxes by following the administrative procedure set out at T.C.A. § 67-801 et seq., without first paying the tax under protest.

We are mindful that the Metropolitan Government of Nashville and Davidson County, Tennessee incorporates what once was the government of the city of Nashville with what was the government of Davidson County into one metropolitan government. This consolidation of governmental functions is authorized by Article XI, Section 9 of the state constitution.

We do not deem it necessary to decide whether the taxes paid by the plaintiff are to be considered city taxes or county taxes. In either event the plaintiff did not comply with nor follow any one of the procedures set out for obtaining a refund of taxes erroneously paid.

The decree of the chancellor is affirmed at the cost of the plaintiff-appellant.

NEARN and SUMMERS, JJ., concur.


text:
    FIRST AMERICAN NATIONAL BANK OF NASHVILLE, Tennessee, Plaintiff-Appellant, v. Joseph HALL, Walter B. White, Kenneth Ray Gregory, Joseph D. Loftis, Warren B. Loftis, Charles V. Gray, Rachel Gray, d.b.a. Whitehall Vending Company, a partnership, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Nov. 21, 1978.
    Certiorari Denied by Supreme Court April 2, 1979.

      Joe C. Peel, King & Ballow, Nashville, for plaintiff-appellant.
    Howard M. Taradash, Nashville, for defendant-appellee Hall.
    Collins, Hedgepath & Lee, Nashville, for defendants-appellees Gregory and Warren B. Loftis.
    James L. Curtis, Nashville, for defendant-appellee White.
   MATHERNE, Judge.

The issue on appeal is whether, under the facts, certain defendants are liable to the plaintiff bank under two guaranty agreements whereby they guaranteed all debts of Whitehall Vending Company owing to the plaintiff, or whether only the defendants Gray are liable to the plaintiff under an agreement whereby the Grays assumed the indebtedness that Whitehall Vending Company owed the plaintiff. For an understanding of the rulings of the chancellor and the issues on appeal, it is necessary to review rather complicated factual situations existing between the parties from 1967 to 1974.

I.

In 1963 the defendant Joseph Hall, a career military man, began a small vending machine operation as a sole proprietorship. Hall was assigned to overseas duty, and arrangements were made whereby the defendant Walter B. White, assisted by the defendant Kenneth Ray Gregory, operated the business while Hall was absent. Upon Hall’s return White and Gregory were made partners in the business as compensation for their work, and the business was known as Whitehall Vending Company. On March 21, 1967, Hall, White and Gregory signed a guaranty agreement whereby they individually guaranteed to the plaintiff bank that they would pay all debts owing to the bank by Whitehall Vending Company.

By instrument dated May 31, 1967, Gregory sold his interest in the partnership to the defendant Warren B. Loftis for a recited consideration of $1,350. The instrument provided that the buyer assumed all outstanding debts of the company for which the seller would be liable and that the partnership consisting of Gregory, White and Hall “is hereby dissolved.” The instrument is signed by Gregory, Loftis, White and Hall. As best we can determine from the record, the company paid Gregory the consideration for the sale of his interest. Lof-tis testified that he did not repay that sum to the company and that it was his understanding that he was to work full time for the company for three years and he would then become a partner. From about the time of the sale to Loftis until about 1969 the defendant Joseph Loftis, the brother of Warren B. Loftis, worked full-time for the company. Warren B. Loftis then worked full-time for the company until March 1971 when he found other employment and was no longer actively associated with the company.

From March 1967 through April 1969, Whitehall Vending Company purchased various vending machines from Hermitage Music Company. These purchases were accomplished under nine different Sale Contract and Security Agreements signed and dated as follows: March 27,1967, signed by Hall, White and Gregory; August 16,1968, signed by Hall; June 4, 1968, signed by Hall; December 20, 1968, signed by Hall; April 25, 1969, signed by Hall and White; July 16,1969, signed by Hall and Warren B. Loftis; October 23,1969, signed by Hall and Warren B. Loftis; and April 25, 1969, signed by Hall and White.

On July 1, 1970, a Sale Contract and Security Agreement was signed by Hall, White and Warren B. Loftis for Whitehall Vending Company in the amount of $38,-462.40 which was a consolidation of the nine separate contracts listed above into one obligation. Each of these ten contracts state that the seller will transfer or assign the debt to the plaintiff bank. Also on July 1, 1970, Hall, White and Warren B. Loftis signed a guaranty agreement whereby they individually guaranteed the plaintiff bank that they would pay any debts owed it by Whitehall Vending Company.

Whitehall Vending Company was apparently unable to meet its obligation to the plaintiff bank, and on March 6, 1972 Hall signed on behalf of the company a revision agreement revising the schedule of payments of the July 1, 1970 contract, which revision agreement the bank accepted.

At some time the defendant Charles Gray became a full-time employee of Whitehall Vending Company. Hall and White agreed to sell the company to Gray and his wife, the defendant Rachel C. Gray. Hall and the Grays went to the plaintiff bank on May 31, 1974 and a bank official had an assumption of indebtedness typed on the back of the revision agreement by which the defendants Gray assumed “full responsibility for the unpaid balance of $36,921.26 remaining unpaid on this contract as of this date.” There was no bill of sale or transfer of property by the sellers to the buyers. The Grays took over the business and operated it as their own.

The Grays were unable to meet the payments as they fell due under the revision agreement. Charles Gray and Hall went to the bank and signed on behalf of Whitehall Vending Company a second revision agreement dated July 16,1974 which lowered the monthly payments as required by the first revision agreement. Hall testified that his signature was on the second revision agreement but that he did not remember signing it.

The Grays defaulted on the second revision agreement and the bank foreclosed and sold the vending machines. A deficiency remained and the bank sued Hall, White, Gregory, Warren B. Loftis, Joseph Loftis, Charles Gray and Rachel C. Gray as partners liable upon the contract and security agreement dated July 1, 1970. The bank amended its complaint to sue Hall, White, Gregory and Warren B. Loftis on the guaranty agreements dated March 21, 1967 and July 1, 1970.

The defendant Hall and the defendants Gray filed cross-claims against each other; however, these cross-claims were voluntarily non-suited prior to the trial. The plaintiff bank also took voluntary non-suits as to Joseph Loftis, Charles Gray and Rachel Gray.

The chancellor held that the defendant Kenneth Ray Gregory was released from the guaranty agreement he executed on March 21,1967 because the guaranty agreement signed by Hall, White and Warren B. Loftis on July 1, 1970 amounted to a novation of the prior guaranty agreement signed by Hall, White and Gregory. The chancellor further held that the assumption of the indebtedness by the Grays on May 31, 1974 was a novation of both the second guaranty agreement signed by Hall, White and Warren B. Loftis on July 1, 1970 and the Sale Contract and Security Agreement of the same date, and he dismissed Hall, White and Loftis as defendants. The chancellor held that the Grays were liable to the bank under their May 31, 1974 assumption of the indebtedness, but since the bank had taken a voluntary nonsuit as to those defendants, the bank could not prevail in this lawsuit. The chancellor dismissed the bank’s lawsuit at its cost.

The bank appeals on two basic issues: (1) that the second guaranty agreement signed by Hall, White and Warren B. Loftis did not amount to a novation of the first guaranty agreement and thereby release Kenneth Ray Gregory; (2) that the assumption of indebtedness by the Grays did not, under the facts, amount to a novation of the Sale Contract and Security Agreement or the guaranty agreement signed by Hall, White and Warren B. Loftis on July 1, 1970.

II.

“A later guaranty releases the guarantor on a former one only if it appears that the later one was accepted as a substitute for the earlier.” 38 C.J.S. Guaranty § 80, p. 1249. Whether the later guaranty was accepted as a substitute for the former is a question of fact, and the requirement in the first guaranty that the guarantor can be released from liability thereunder only by written notice to the creditor does not prevent a release of the first guaranty where it appears the later guaranty was given and accepted as a replacement of the first guaranty. Bridgeport State Bank et al. v. Union Warehouse & Milling Co. et al. (1926), 137 Wash. 190, 242 P. 13.

There is a noticeable absence of proof on the part of all the parties on the factual issue to be determined. Kenneth Ray Gregory did not testify. The bank did not produce Wilson Bracy, an apparent official of Hermitage Music Company who witnessed the signatures to the second guaranty. The bank offered no explanation as to why it required Hall and White to sign the second guaranty along with the new partner Loftis, but did not require Gregory to sign that guaranty. Hall, White and Loftis understood that Gregory had left the business May 31,. 1967 when he sold his interest to Loftis. The chancellor found that so far as Gregory was concerned the parties intended that the second guaranty replace the first and that the July 1,1970 Sale Contract and Purchase Agreement replace the nine prior contracts. We find that the evidence does not preponderate against that holding. We hold that Gregory is released from his obligations under the 1967 guaranty agreement and that he was never obligated under the July 1, 1970 Sales Contract and Security Agreement upon which the bank sues.

The chancellor further held that Hall, White and Warren B. Loftis were released from the July 1, 1970 guaranty agreement and the July 1, 1970 Sales Contract and Security Agreement because all parties, including the bank, treated the assumption by the Grays of the firm’s indebtedness to the bank as a release of Hall, White and Loftis from all liability under those instruments. We do not agree with this holding.

The guaranty under consideration is a continuing and absolute guaranty to the bank for all amounts owing the bank by Whitehall Vending Company. A guarantor in a commercial transaction is held to the full extent of his engagement, and the terms of the guaranty will be construed as strongly against the guarantor as the sense will admit. Farmers-Peoples Bank v. Clemmer (Tenn.1975) 519 S.W.2d 801.

An absolute and continuing guaranty may be cancelled or terminated only as stated in the guaranty or by the acceptance of a new guaranty as a replacement for the prior one. The guaranty under consideration has the following provision for the termination of the liability of any guarantor:

This obligation is joint and several and binds each of the Guarantors and their personal representatives as if signed by each of said Guarantors alone, and shall remain in full force and effect until a notice in writing, signed by the Guarantor seeking to be released, or by his personal representative, shall be delivered to an Executive Officer of said Bank at is [its] principal place of business, in Nashville, Tennessee, and this obligation shall then continue in full force and effect as to each such Guarantor, until all obligations of every kind, then owing by the Guaranteed (whether due or not due), to said Bank shall have been paid and discharged in full, together with all interest, costs, expenses and attorneys’ fees as hereinabove provided.

The notice as required was not given by any of the three guarantors.

The guarantors argue that the assumption of the indebtedness by the defendants Gray relieved them of all liability on their guaranty. The guaranty agreement provides that guarantors agree:

To waive demand, notice and protest of each and every item for which said Guaranteed [Whitehall Vending Company] may be liable to said Bank, either now or hereafter, and to waive diligence on the part of said Bank in making collection against the Guaranteed and/or against any other for whom the Guaranteed may be secondarily liable, and agrees that all obligations of the Guaranteed and any other or others for whom the Guaranteed may be secondarily liable may be renewed or extended in whole or in part from time to time, or at any time by said Bank without notice to the undersigned Guarantors, and without affecting the liability of the undersigned Guarantors hereunder. It is further specifically agreed that each of the Guarantors shall have no right to make any defense to any obligation for which the Guaranteed may be liable to said bank, which the Guaranteed could not make in person.

Even though Hermitage Music Company assigned the contract to the bank with recourse and even though the assumption of that debt by the Grays may have rendered the Grays liable thereon, the terms of the guaranty place full liability on the guarantors. We conclude that Hall, White and Warren B. Loftis are liable to the bank on the guaranty agreement dated July 1,1970. We also conclude that Hall, White and Warren B. Loftis are liable to the bank under the Sale Contract and Security Agreement dated July 1, 1970. There is no proof that the bank accepted the Grays as the only parties liable under that instrument. The assumption of that indebtedness by the Grays as a consideration for the purchase of the business does not, standing alone, amount to a release of Hall, White and Warren B. Loftis from their obligation thereunder to the bank. We make no ruling as to the liability of the Grays to Hall, White and Warren B. Loftis under the Grays’ assumption of the indebtedness because the Grays are not before the Court. Neither do we rule on the liability of Hall, White and Warren B. Loftis each to the others under that contract. The parties are free to litigate those matters because the subject was not settled in the trial court and it is not before this Court.

The chancellor is affirmed on his dismissal of Gregory from this lawsuit. The chancellor is reversed in his ruling that Hall, White and Warren B. Loftis are not liable under their guaranty dated July 1,1970 and the Sale Contract and Security Agreement of the same date. This lawsuit is remanded to the trial court for a determination of the amount of that liability. The above holding disposes of all assignments of error filed by the plaintiff bank.

The cost in this Court is adjudged one-half against the appellants and one-half against the appellees.

SUMMERS, J., and TATUM, Special Judge, concur.


author: FRANKS, Judge.

text:
    Monroe Dan GILLIS et ux., Plaintiffs-Appellants, v. CLARK EQUIPMENT COMPANY and Amoco Chemicals Corporation, Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 28, 1978.

      Robert E. Pryor, Frank Flynn, Jr., Knoxville, for plaintiffs-appellants.
    Fred H. Cagle, Jr., Knoxville, for Amoco Chemicals Corp.; Frantz, McConnell & Seymour, Knoxville, of counsel.
    Ray J. Campbell, Jr., and Arthur D. Byrne, Knoxville, for Clark Equipment Co.; Poore, Cox, Baker, McCauley, Ray & Byrne, Knoxville, of counsel.
   OPINION

FRANKS, Judge.

This case presents the issue of whether there is jurisdiction to adjudicate a claim against foreign corporations doing business in this state where the cause of action arises from activities unconnected with this state.

The complaint alleges plaintiffs are residents of Tennessee and plaintiff Gillis was injured while operating a fork-lift in the State of Massachusetts. The defendants are the owner and the manufacturer and seller of the fork-lift, and their negligence is alleged to be the proximate cause of plaintiffs’ damages.

Service of process was perfected upon the defendants’ registered agents, appointed as a condition of doing business in this state, pursuant to T.C.A., § 48-1201, et seq.

Defendants filed motions to dismiss, alleging the cause of action arose in the Commonwealth of Massachusetts and is unrelated to any business conducted within the State of Tennessee. The trial judge sustained the motions and dismissed the suit on the grounds that a foreign corporation is not subject to suit in Tennessee for claims arising wholly outside the state and relied upon T.C.A., § 20-220.

Plaintiffs have appealed, insisting that Tennessee law affords bases of jurisdiction to adjudicate this cause of action: viz., (1) T.R.C.P., 4.04 provides for service of process upon foreign corporations qualified to do business in this state. (2) Section (f) of T.C.A., § 20-235, the so-called “Long Arm Statute”, provides for jurisdiction over nonresidents to the limits of due process and the nonacceptance of jurisdiction herein would create an anomalous situation, i. e., a foreign corporation not available for service within this state would be subject to broader jurisdiction than one doing business here and subject to instate service of process. Finally, it is insisted that the determination made in DeLaney Furniture Co., v. The Magnavox Co. of Tennessee, 222 Tenn. 329, 435 S.W.2d 828, decided in 1968, is not controlling since it does not follow prior Tennessee law and for the further reason that the Rules of Civil Procedure and section (f) of the Tennessee Long Arm Statute have since been enacted.

All of plaintiffs’ contentions merit consideration and will be discussed in the order presented.

First, plaintiffs contend that T.R.C.P., 4.04 and T.C.A., § 20-220, provide alternative bases of jurisdiction over foreign corporations, i. e., if a foreign corporation is served by any one of the procedures outlined in 4.04, T.C.A., § 20-220 would be totally inapplicable. The primary authority cited by plaintiff is Gallaher v. Chemical Leaman Tank Lines, Inc., 367 F.Supp. 1063 (E.D.Tenn.1973). The federal district court in that case stated:

[T]his court is of the opinion that T.C.A. § 20-220 and Tennessee Rule of Civil Procedure 4.04(4) are procedural alternatives. Otherwise, the framers of the Tennessee Rules would have seen fit to incorporate the limitation[s] [of 20-220] into the procedure for serving process. at p. 1065.

This analysis is not persuasive. T.C.A., § 20-220, by its terms purports to be jurisdictional. It provides for no method of service upon a foreign corporation; thus, the procedure for serving process on foreign corporations for any cause of action is established by other statutory authority or the Rules. Whereas, T.R.C.P., 4, outlines the various methods available for giving effective notice to a defendant and, upon compliance, the defendant is subjected to the court proceeding: it does not purport to include the substantive law of jurisdiction. Accordingly, T.C.A., § 20 — 220, provides no procedural alternative to T.R.G.P., 4.04, and the Rule provides no substantive alternative to the statute.

Plaintiffs’ reliance on Rule 4.04 is misplaced but understandable since the traditional foundation of judicial jurisdiction in transitory actions is based upon the physical presence of the defendant. See McDonald v. Mabee, 243 U.S. 90-91, 37 S.Ct. 343, 61 L.Ed. 608. And, as in the case of a foreign corporation, it is generally understood that unless the corporation has voluntarily submitted to jurisdiction, judicial jurisdiction is asserted on the basis of the activities of the corporation within the forum state.

It was not within the purview of the rules to include or re-enact substantive law not affected by the rules. § 2 of Acts of 1965, eh. 227 (codified as T.C.A., § 16-113), the enabling act under which the Rules of Civil Procedure were promulgated, provides the rules should not “abridge, enlarge or modify any substantive right.” Statutory construction requires statutes be construed in a manner to avoid conflict and specific provisions control over general provisions. See Watts v. Putnam County, 525 S.W.2d 488 (Tenn.App.1975); Cole v. State, 539 S.W.2d 46 (Tenn.Cr.App.1976).

If Rule 4.04 is a jurisdictional alternative, then T.C.A., § 20-220, is rendered meaningless since all permissible forms of service are embraced by the rule. There would be no situation where the statute applied while the rule did not. Thus, the limitation in the statute would be rendered meaningless and would result in repeal by implication, which is not favored and will only be found when there is an irreconcilable conflict between statutes. Massachusetts Mutual Life Ins. Co. v. Vogue, Inc., 54 Tenn.App. 624, 393 S.W.2d 164 (1965).

The method of testing whether a foreign corporation is subject to suit in a particular state is set forth in 36 Am.Jur.2d, Foreign Corporations, § 466 at pp. 469-70, as follows:

There are two parts to the question whether a foreign corporation is subject to suit in a particular state. The first is whether, as a matter of state law, the state has provided for bringing the corporation into its courts under the circumstances of the case presented; the second is whether, as a matter of federal law, the assumption of jurisdiction over the corporation violates the due process or interstate commerce clause of the Federal Constitution. [Emphasis added.]

Jurisdiction over foreign corporations within the limits of due process is a matter of legislative discretion, as stated in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 1332 (1952):

“Provisions for making foreign corporations subject to service in the state is a matter of legislative discretion, and a failure to provide for such service is not a denial of due process. Still less is it incumbent upon a state in furnishing such process to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory actions not arising in the state.” Missouri P.R. Co. v. Clarendon Co., 257 U.S. 533, 535, 42 S.Ct. 210, 211, 66 L.Ed. 354.

We hold that T.C.A., § 20-220 is jurisdictional and imposes a jurisdictional limitation on service of process perfected under procedures contained in T.R.C.P., 4.04.

The second argument made by plaintiffs is that section (f) of the Long Arm Statute, T.C.A., § 20 — 235, would be “undermined” by a determination that these defendants are not subject to jurisdiction in Tennessee courts for the alleged cause of action.

Section (f) makes nonresidents who cannot be personally served in this state subject to jurisdiction of Tennessee courts on “[a]ny basis not inconsistent with the constitution of this state or of the United States.”

This argument overlooks the basis of jurisdiction under the Long Arm Statute which is not based on defendant's relationship to the state but on the conduct of defendant or particular occurrence or event with consequences within this state. The Long Arm Statute affords a basis for specific jurisdiction upon prescribed circumstances as opposed to general jurisdiction but general jurisdiction over foreign corporations is historically not without limitations.

As observed by the United States Supreme Court in the case of Simon v. Southern Ry., 236 U.S. 115, 130, 135 S.Ct. 255, 260, 59 L.Ed. 492 (1915),

[T]his power to designate by statute the officer upon whom service in suits against foreign corporations may be made relates to business and transactions within the jurisdiction of the state enacting the law. Otherwise, claims on contracts, wherever made, and suits for torts, wherever committed, might, by virtue of such compulsory statute be drawn to the jurisdiction of any state in which the foreign corporation might at any time be carrying on business. The manifest inconvenience and hardship arising from such extraterritorial extension of jurisdiction by virtue of the power to make such compulsory appointments could not defeat the power if in law it could be rightfully exerted. But these possible inconveniences serve to emphasize the importance of the principle laid down in Old Wayne Mut. Life Asso. v. McDonough, 204 U.S. 22(8), 51 L.ed. 351, 27 Sup.Ct. Rep. 236, that the statutory consent of a foreign corporation to be sued does not extend to causes of action arising in other states.

Later, specifically in the case of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the United States Supreme Court permitted the exercise of jurisdiction with respect to activities largely unconnected with the forum but arising from in-state contacts nevertheless. At page 320, 66 S.Ct. at page 160 of that Opinion, the Court emphasized that “[t]he obligation which is here sued upon arose out of [the] . . . very activities” relied upon to “establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred there.”

Later, in the Perkins case cited supra, the Supreme Court held the exercise of judicial jurisdiction over a corporation which does business within the forum is not a denial of due process as to a cause of action unrelated to that business if the corporation’s activities in the state are sufficiently continuous and substantial to make exercise of such jurisdiction reasonable. As noted supra, the case holds if there is substantial contact with a state of a continuing nature, the legislature may extend jurisdiction to adjudicate over the foreign corporation for causes of action arising in another jurisdiction.

Under our analysis of the provisions of the Long Arm Statute, the statute affords specific jurisdiction to adjudicate and is limited to the matters arising out of or substantially related to the circumstances er tablished by the statute upon which the jurisdictional claim is based. It would be a strained construction to construe section (f) of the Long Arm Statute as extending jurisdiction to the extent Perkins allows when section (f) is part of an enactment basing jurisdiction upon intrastate activities or consequences and, again, would render meaningless and repeal by implication T.C.A., § 20-220.

Finally, plaintiffs contend DeLaney, supra, should not be followed because it is inconsistent with an earlier line of cases, beginning with Cumberland Telephone Co. v. Turner, 88 Tenn. 265, 12 S.W. 544 (1889). Plaintiffs contend that these cases are authority that T.C.A., § 20-220 was intended to supplement, rather than limit, existing bases of jurisdiction. The other bases referred to were found in the predecessor statutes to Rule 4.04 and were T.C.A., §§ 20-217 — 8. Those statutes provided for service upon a corporation through officers, agents and resident directors, either in the county in which the corporation maintained its chief office or in other counties in which the corporation had an officer or resident director. T.C.A., § 20-220 is considered supplemental to the repealed statutes in the sense that the procedural statutes in effect at the time of T.C.A., § 20-220⅛ enactment required a resident director, agency or the like to be served in the forum county for jurisdiction to be obtained over any corporation, foreign or domestic. T.C.A., § 20-220, which deals exclusively with foreign corporations, removed that requirement, allowing suit against corporations found “doing business” in Tennessee. However, this expansion of the existing basis of jurisdiction was coupled with a specific limitation; that such suits were limited to causes of action arising in Tennessee from transactions here. The cosmetic differences with the prior holdings may be reconciled by following the decision of DeLaney Furniture Co. v. Magnavox, supra, in which T.C.A., § 20-220 was held to control jurisdiction respecting the locus of the cause of action; while the predecessor statutes to Rule 4.04(4) controlled in respect to all other matters.

We.are not. unmindful of the reported decision of this Court, Atchison, Topeka & Santa Fe Ry. Co. v. Ortiz, 50 Tenn.App. 317, 361 S.W.2d 113 (1962), which allowed a suit on a cause of action arising in another state to be maintained against a foreign corporation on service perfected in accordance with the then T.C.A., § 20-218. While DeLaney does not mention Ortiz, it is clearly overruled. Nowhere in Atchison is T.C.A., § 20-220 considered, except mention in the dissenting opinion, and the issue considered was whether due process requirements were met.

In the case sub judice, defendant-nonresident corporations were brought before the court by service of process, in accordance with T.R.C.P., 4.04, but this limited determination begs the question. The issue thus becomes whether the legislature has extended subject matter jurisdiction to the cause of action asserted. We hold that while perfecting service of process in accordance with Rule 4.04 brings the foreign corporation before the court, § 20-220 denies the court jurisdiction over the subject matter, i. e., jurisdiction is only provided to the extent the cause of action “relates to any transaction had, in whole or in part, within this state, or any cause of action arising here, but not otherwise.” An analogy may be drawn to the abatement statutes and others, e. g., T.C.A., § 20-903, provides that although service is perfected upon the party, if statutory limitations are timely raised, the court is without jurisdiction to proceed with the case.

We are required, whenever possible, to construe potentially conflicting statutes in a manner so as to give effect to both without conflict. See Parkridge Hospital, Inc. v. Woods, 561 S.W.2d 754 (Tenn.1978). As the Supreme Court stated in the DeLa-ney case,1 a foreign corporation doing business in Tennessee cannot be sued on a claim arising wholly outside of Tennessee and having no connection with Tennessee. The Court added: “While other statutes provide for service of process on corporations, (T.C.A., §§ 20-217, 20-218, 48-910 and others), and are to be read in pari materia, T.C.A. § 20-220 controls the right to sue, with respect to the origin of the cause of action.” 222 Tenn. p. 337, 435 S.W.2d p. 832.

Under T.G.A., § 20-220 and the decision in DeLaney, this suit may not be maintained. The dismissal by the trial court is affirmed and the costs incident to the appeal are taxed against the plaintiffs-appellants.

PARROTT, P. J., and SANDERS, J., concur.

      . T.C.A., § 20-220 states:

        Foreign corporations subject to actions. —Any corporation claiming existence under the laws of the United States or any other state, or of any country foreign to the United States, or any business trust found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are by the laws thereof liable to be sued, so far as relates to any transaction had, in whole or in part, within this state, or any cause of action arising here, but not otherwise. Any such corporation or trust having any transaction with persons, or having any transaction concerning any property situated in this state, through any agency whatever, acting for it within the state, shall be held to be doing business here within the meaning of this section. [Emphasis supplied.]

      . T.R.C.P., 4.04 states in part:
      ... Service shall be made as follows:

      (4) Upon a domestic corporation, or a foreign corporation business in this state, by delivering a copy of the summons and of the complaint to an officer or managing agent thereof, or to the chief agent in the county wherein the action is brought, or by delivering the copies to any other agent authorized by appointment or by law to receive service on behalf of the corporation.

      . In Perkins, the mining company’s principal activities were in the Philippine Islands and plaintiff could not bring suit in that forum during the Japanese Occupation. The forum state at the time of suit was one where the defendant had substantial contacts and could be considered the defendant’s main or head office.

      . For a discussion of those statutes, See Railroad Co. v. Walker, 77 Tenn. (9 Lea) 475 (1882).

      . It is suggested by the author of “Jurisdictions over Foreign Corporations in Tennessee”, 42 Tenn.Law Review 325 at 352, that a basis to exercise jurisdiction over a foreign corporation may be found in the common law as defined by International Shoe, supra. DeLaney was decided subsequently and the International Shoe case, along with Hanson v. Denckla, 357 U.S. 235, 78 S.ct. 1228, 2 L.Ed.2d 1283 (1958), and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), are said to establish “three rules” to test jurisdiction. The “rules” include the statement, “The cause of action must be one which arises out of, or results from, the activities of the defendant within the forum.” 47 Georgetown L.J. 342, 351-52 (1958).