author: HENRY, Chief Justice.

text:
    Mary Ellen Leonard HARRISON et al., Petitioners, v. Arlene (Arlee) Leonard ARNOLD et al., Respondents.
    Supreme Court of Tennessee.
    Dec. 5, 1977.

      Lodge Evans, Elizabethton, for petitioners.
    Lyle Burrow, Ernest B. King, Bristol, for respondents.
   OPINION

HENRY, Chief Justice.

In this action, seeking the partition of real estate by sale, we are called upon to determine (1) the proper method of preserving the testimony taken by a Special Master upon an order of reference and (2) whether a Special Master may supplement the proof by an independent investigation into the condition of a land title.

The Trial Judge, on the basis of the Master’s report and without hearing further testimony, confirmed the report, held that plaintiffs (petitioners) had no interest in the real estate, and dismissed the suit. The Court of Appeals sustained a motion to strike the transcript of the proof taken by the Master and the exhibits thereto on the basis of the failure of the Chancellor to authenticate the exhibits and to certify a proper bill of exceptions. The Court of Appeals further held that the Master exceeded the scope of his authority in making the independent examination of the title records and sustained a motion to disallow the Master’s fee.

The technical record contains the Master’s report on reference, together with twelve unidentified and unauthenticated exhibits. Included among the documents filed upon appellate review is a transcript of the testimony taken by the Master upon oral-examination. This document is signed, but not certified, by the court reporter. It is marked filed by the Clerk and Master but is neither authenticated, certified nor signed by the Chancellor. It does not purport to be a bill of exceptions.

The technical record, as filed in the Court of Appeals on September 22, 1976, contained a proper certification. The transcript of the oral testimony and the twenty-eight exhibits thereto, comprising two separate volumes, contain no certification or authentication. The Clerk and Master attempted to remedy this by filing on January 13, 1977, a certificate covering not only the original transcript, but also volumes II and III. Irrespective of the date of the certificate it was ineffectual.

In Elias v. Elias, 61 Tenn.App. 692, 457 S.W.2d 612 (1969), the transcript of the oral evidence heard by the Master was copied into the transcript without being identified by the Chancellor. The Court held:

A bill of exceptions was necessary to preserve the testimony heard by the Master and considered by the Trial Judge even though the oral testimony was transcribed in question and answer form and filed with the Clerk along with the depositions. Since the testimony was not identified by the Trial Judge, it cannot be considered by this Court on this appeal. 61 Tenn.App. 698, 457 S.W.2d 615.

We hold that the testimony of witnesses taken by the Master pursuant to an order of reference must be signed and certified by him and he must authenticate all exhibits.

As an alternative procedure, the trial judge may, in the absence of other proof, convert the transcript of the testimony before the Master by signing an order directing that the original transcript be sent up as a part of the record and reciting affirmatively that such transcript contains all the evidence considered by the lower court. Such a transcript must be properly authenticated by the trial judge. See Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974).

In the absence of a proper bill of exceptions, there is a conclusive presumption that the lower court’s findings and decree were correct. See Ellas, supra.

We, therefore, affirm the judgment of the trial court in this regard, but reverse so much of the judgment of the Court of Appeals as remands this action for trial on the merits. It is the duty of one seeking appellate review to prepare and present an orderly record to include a proper bill of exceptions. The petitioner, not having abided that duty is in no position to complain of the action of the trial court in confirming the Master’s report; nor is there any good and sufficient reason for a remand. See Leath v. Carr, 22 Tenn.App. 305, 122 S.W.2d 819 (1938).

Having thus resolved the first issue, we do not reach the issue of the action of the Master in conducting an independent investigation except on a pendent basis.

The Court of Appeals sustained the motion of the petitioners to disallow the Master’s fee. We find no basis for this action. We have read the Master’s report on reference and find it to be complete and comprehensive. In the context of this acrimonious family dispute and the complexity of the issues resolved by the Master, we find the compensation allowed him to be reasonable. In fact, without the independent investigation as to the condition of these land titles, his compensation was on the low side. We will not penalize him for making an independent investigation where his reasons for doing so are fully documented, and the necessity was apparent. He extended an open invitation to counsel “to investigate or examine [the exhibits prepared or procured by him], including the examination of the records in the Register of Deeds Office and advise the Court if they disagree with the same or take issue with [his] findings.”

Furthermore, counsel did not take issue with the accuracy of the report in this regard, but only with the fact of the investigation.

We will not penalize a special master who made a substantial contribution to the resolution of this controversy by denying him his well-earned compensation on the basis of services extending beyond the dictates of the order of the record and his failure to certify the transcript. In the first instance, counsel had every opportunity to falsify his report; in the second, the failure was of no significance.

We affirm the action of the trial judge in dismissing this action and remand for the enforcement of these directives relating to court costs, including compensation to the Special Master. All costs in all courts are taxed against petitioners.

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


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    Helen GASTON, Appellant, v. STATE of Tennessee and William L. Jones, Commissioner of Finance and Administration, Appellees.
    Supreme Court of Tennessee.
    Dec. 5, 1977.
    H. Michael Bennett, Schulman, Pride & Leroy, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, for appellees.
   OPINION

HENRY, Justice.

This case originated as a suit for a divorce. In its present posture it is a third-party action, the disposition of which is dependent upon a construction of Rule 13.-08, Tenn.R.Civ.P.

I.

On December 20, 1974, Carlos Gaston instituted divorce and child custody proceedings against his wife, Helen Gaston. On January 13, 1975, Mrs. Gaston replied, claiming that she was entitled to a divorce and also seeking custody of the couple’s minor children. In this counterclaim, she alleged that she was indigent and unable to afford qualified legal counsel. Her husband was also indigent and was represented by the local legal aid organization, Legal Services of Nashville, Inc. Because of a possible conflict of interest, Legal Services declined to serve as Mrs. Gaston’s counsel. She, therefore, asked that the State be required to pay her attorney’s fees, pursuant to the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution.

On January 20, 1975, Helen Gaston moved to amend her counterclaim by making the State of Tennessee and William Jones, Commissioner of Finance and Administration, third party defendants pursuant to Rule 13.08 of the Tennessee Rules of Civil Procedure. This motion was granted on February 13, 1975. Subsequently, the third party defendants moved to dismiss the action against them for failure to state a claim upon which relief could be granted. While this motion was pending, Helen Ga-ston was granted a divorce, and her husband was awarded custody of the children. Thereafter, the motion to dismiss was denied, and the question of the amount of attorney’s fees was considered by the court at a later date.

The trial judge held that for an attorney to be compensated by the State, there must be an official appointment, and that because Helen Gaston retained counsel on her own behalf, the State could provide no compensation. Therefore, the motion to dismiss was granted, since there was no claim filed against the State upon which relief could be granted.

This appeal followed.

II.

Mrs. Gaston’s claims for attorney’s fees are predicated upon the procedural assumption that the State is properly joined as a third party defendant and hence can be found liable for counsel fees. This is founded in fallacy.

Tennessee Rule of Civil Procedure 13.08 states:

When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court may order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained.

This Rule is the same as Federal Rule of Civil Procedure 13(h) before it was amended in 1966.

We agree with previous interpretations of this corresponding federal rule, as well as those of the present, more liberal Federal Rule 13(h), and hold that additional parties may be joined only when their presence is needed to give the moving party the complete relief sought in the original cause of action. See Independence Tube Corp. v. Copperweld Corp., 74 F.R.D. 462 (N.D.Ill.1977); United States v. Techno Fund, Inc., 270 F.Supp. 83 (S.D.Ohio 1967); United States v. Zashin, 160 F.Supp. 843 (E.D.N.Y.1958).

We think this interpretation is commanded by the clear language of Rule 13.-08, Tenn.R.Civ.P., which shows on its face that it is designed to afford “complete relief” as to the issues arising under a counterclaim or crossclaim. The rule was not designed to permit the litigation of a separate and distinct cause of action within the framework of an existing lawsuit. Nor may the third-party action be sustained under Rule 14, Tenn.R.Civ.P., for the self-evident reason that neither third-party defendant was answerable, under the theory, “for all or part of the plaintiff’s claim against him.”

In the present case, the original cause of action is that of a simple divorce. The State and the Commissioner of Finance and Administration are strangers to this litigation, and their presence as parties contributes nothing to its outcome.

We therefore find that the State and Mr. Jones were improperly joined under Rule 13.08 of the Tennessee Rules of Civil Procedure. We concur in the results reached by the trial judge.

In view of this disposition, it is not appropriate that we consider the remaining assignments.

Affirmed.

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

      . The divorce was granted by Special Judge Grant Smith. The regular judge acted upon the motion to dismiss and referred the amount of counsel fees to the special judge.

      . See also Rule 14, Tenn.R.Civ.P., relating to third-party practice.


text:
    Warren L. McINTYRE et al., Appellants, v. James L. McINTYRE, Appellee.
    Supreme Court of Tennessee.
    Dec. 5, 1977.
    Robert E. Rose, Memphis, for appellants.
    Walker T. Tipton, Covington, for appel-lee.
   OPINION

HENRY, Justice.

The trial judge dismissed this action for failure to state a claim upon which relief can be granted. Rule 12.02(6), Tenn.R. Civ.P. We affirm.

I.

The pertinent factual averments of the complaint are:

Plaintiff avers that on or about April 4, 1976, plaintiff’s minor son, Bob McIntyre, was visiting on the premises owned by the defendant, James L. McIntyre, in Tip-ton County, Tennessee.
Plaintiff would show that the defendant, with full knowledge, allowed to be maintained on said premises an attractive nuisance consisting of agricultural land which he allowed children of minor and tender ages to use to ride motorcycles; that defendant knew said area consisted of rolling hills and to be a dangerous condition, and knew same to be an attraction to children.
Plaintiff would show that said area where defendant allowed children to ride motorcycles on his premises existed for a period of time and that the defendant knew or should have known that same was a dangerous area and should have taken steps to remove and prevent children from engaging in this dangerous activity on his property.
Plaintiff would further show that, having knowledge of the activity of children riding motorcycles on his property, he failed to properly supervise and use reasonable precautions or to properly supervise the use of said premises for the activities named herein and, further, that he failed to warn the children of the dangers of said activity.
Plaintiff would further show that on or about April 4, 1976, his minor son, Bob McIntyre, was invited and allowed to ride his motorcycle on defendant’s premises at which time, while going over a hill, he collided with another minor child of tender years and was severely injured and sustained multiple contusions and abrasions and permanent injuries to his eye. . . .

We affirm on the authority of Metropolitan Government of Nashville v. Counts, 541 S.W.2d 133 (Tenn.1976). There we set out the essential elements of a suit predicated upon an attractive nuisance. None of these elements is present in the instant case. Without discussing them seri-atim we simply point out:

a. Plaintiff minor was not a trespasser as he must have been to invoke the attractive nuisance doctrine.

b. There is no allegation that defendant maintained upon his premises any condition, artificial or natural, that would constitute an unusual or hidden danger. To the contrary, the complaint alleges the “attractive nuisance consisted] of agricultural land . and rolling hills.” While we acknowledge the picturesque beauty of the rolling hills and majestic mountains of Tennessee and agree that they are attractive, the fortunate fact that God has strewn His splendor with such a lavish hand and blessed our state with great beauty, and has made it a veritable playground, hardly affords a reason to classify any normal topographical feature as an attractive nuisance. To so hold would subject every landowner in Tennessee to potential liability by virtue of the mere ownership of land.

c. To invoke the “playground doctrine,” which is but an exception to the rather harsh requirement of attractive nuisance that the child be enticed or lured upon the property, there must be a showing of conditions involving “unreasonable risk of bodily injury and which children because of their youth will fail to discover and appreciate.” 541 S.W.2d at 136.

Finally, we are not impressed that a child of “tender years” would be riding a motorcycle, a vehicle for which a license is required. Sec. 59-704, T.C.A. If we downgrade a motorcycle to a “motor driven cycle”, the minimum age for licensing is fourteen. We, therefore, must assume that plaintiff rider was at least fourteen years of age. A minor is held to an adult standard of care when operating a motor vehicle on the highways, roads, streets and alleys of the state. Powell v. Hartford Accident & Indemnity Co., 217 Tenn. 503, 398 S.W.2d 727 (1966). A motorcycle or a motor driven cycle is embraced within the definition of “motor vehicle” under Sec. 59-103, T.C.A.

We do not hold categorically that the operator of a motorcycle or a motor driven cycle could not bring himself within the attractive nuisance or playground doctrine; however, a licensed driver of such a vehicle would encounter substantial difficulty in establishing the existence of a risk “which children because of their youth will fail to discover and appreciate.”

The judgment of the trial judge is

Affirmed.

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

      . Actually two suits were filed, one by a father in his own right and a second by a son through his father as next friend. We treat them as a single suit since both causes of action are cognizable in a single suit. Rule 20.01, Tenn.R. Civ.Pr.

      . Any vehicle having not more than three wheels. Sec. 59-103, T.C.A.


text:
    Elayne SANDERS, Appellant, v. Casie J. VINSON, etc., et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 5, 1977.

      Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, for appellant.
    James 0. Lanier, County Atty., Dyers-burg, for appellees.
   OPINION

HENRY, Justice.

This action arises under the Teachers’ Tenure Law (Sec. 49-1401, et seq., T.C.A.) and fairly raises questions relating to the establishment and termination of tenurial status. Plaintiff, in this action against the County Superintendent of Education and the Board of Education of Dyer County, seeks (1) to vacate the action of the Dyer County Board of Education in terminating her employment, (2) to be reinstated to her former teaching position and (3) to recover damages for the breach of her contract of employment. The Chancellor sustained a motion to dismiss made pursuant to Rule 12.02, Tenn.R.Civ.P., and decreed that plaintiff was “entitled to full pay and remuneration . . . subject to mitigation to the extent of other earned income,” but did not award any specific amount.

We hold the Chancellor’s action to be incongruous, incorrect as a matter of law, and incomplete. We, therefore, reverse and remand.

I.

A proper understanding of the issues here presented demands a detailed and chronological narration of the bizarre history of the events leading up to this lawsuit.

It must be borne in mind that the case is before us solely on the matter of the motion to dismiss, which is akin to a demurrer under former practice in that it admits all matters properly pleaded and, therefore, is a test of the leading pleading. Holloway v. Putnam County, 534 S.W.2d 292 (Tenn.1976). We, therefore, accept the factual averments of the complaint for purposes of this appeal.

Elayne Sanders was employed in 1971 by the Dyer County Board of Education (the Board) as an English teacher. She completed her probationary period at the end of the school year 1973-1974, and thereby became eligible for permanent tenure status. Sec. 49-1403, T.C.A.

On 9 April 1974, the Board met in “called” session for the purpose, among other things, of electing teachers for the ensuing school year. The minutes of that meeting show affirmatively that Elayne Sanders “was not recommended by the superintendent.” No reasons were assigned. Notwithstanding the non-concurrence of the superintendent, she was reelected. The minutes are silent as to whether the superintendent advised the Board that her reelection would result in tenurial status. Sec. 49-1403, T.C.A.

Two days later, on 11 April 1974, the Board met in “emergency” session and, among other things, reconsidered its action in re-employing Elayne Sanders. While not specifically recited in the minutes, it is averred in the complaint that at this meeting the superintendent and a representative of the State Department of Education represented to the Board that the State Commissioner of Education would not recognize Elayne Sanders for the purposes of salary disbursement under Sec. 49-602(A)(7) and that the State would withhold the appropriate salary disbursement on the authority of Sec. 49-604(B), T.C.A. As a result, the Board voted unanimously to rescind its earlier action in re-employing Sanders. That same date the Superintendent notified her of the action of the Board.

On 18 April 1974, Sanders requested a formal hearing before the Board. On 29 April 1974, the hearing was conducted. At this meeting the superintendent gave no reasons for not recommending her re-employment but indicated that the problem stemmed from longstanding political differences between the Board and him. The Board adjourned after resolving to hold another meeting on the matter, and directed that at that meeting any charges against plaintiff be presented.

On 24 June 1974, the board met in regular session and voted to rescind the action of 11 April 1974. The superintendent was called upon to make a recommendation respecting the employment of Sanders and, in response thereto, advised the Board that he felt “the instruction of the English department could be upgraded by employing other persons.” He did not recommend her reemployment. The Board thereupon proceeded to elect Sanders unanimously for the ensuing school year.

In July 1974, the Board forwarded Sanders a document upon which to acknowledge employment. This document specified the school at which she was to teach and instructed her to contact the principal for her classroom assignment. She indicated her acceptance and returned the document. Thereafter, on 6 August 1974, she was sent a memorandum on the procedures to be followed for opening of the school year, including instructions for in-service training and the execution of contracts.

Sanders reported for in-service training on 19 August 1974 and had worked for a full week when she received a letter from the Superintendent and the Chairman of the School Board, which, omitting the address, salutation and complimentary closing, read as follows:

This is to inform you that the Dyer County Board of Education, in session on August 22, voted to rescind action taken by the board on June 24, 1974, in which you were employed by the board to teach in Dyer County Schools for the 1974-75 School Year.
This action was taken due to a Chancery Court case between the Tennessee Education Association and the Tennessee State Department of Education regarding legality of your employment under T.C.A. 49-602, A, 7 as amended by Chapter 435, Public Acts of 1974.

This is the notice that the appellees rely upon and that appellant challenges.

Sanders was paid for the one week of in-service training on 6 November 1974. On 22 November 1974, she filed suit in the Chancery Court at Nashville against the State Commissioner of Education, the Dyer County Superintendent and the Dyer County School Board, seeking restoration and/or reinstatement, a declaration of her rights and status as a teacher, and a restoration of proceeds withheld from the State School Fund. The Chancellor concluded that Sanders was seeking review of her discharge and that the action must be brought in Dyer County.

On appeal to this Court we affirmed the Chancellor, holding that the Commissioner of Education was neither a necessary nor a proper party and that venue was in Dyer County. Sanders v. Carmichael, 527 S.W.2d 92 (Tenn.1975). The opinion was released 2 September 1975. The instant suit was filed 12 September 1975.

II.

HOW TENURE IS ACQUIRED

In spite of the fact that the Teachers’ Tenure Act has been in effect for more than a quarter of a century, it is evident that even those affected by it and those charged with its administration do not understand its full import. This section is designed not only to decide this particular lawsuit, but to serve as a primer for the use of local school boards and public school teachers, to the end that controversies of this type be minimized.

Contrary to the belief which apparently prevails in some quarters, the mere completion of the three-year or twenty-seven month probationary period by a teacher otherwise qualified, does not automatically confer permanent tenure. It merely is a condition precedent to eligibility for tenure.

The conference of tenurial status is dependent not only upon service but also upon affirmative action by the Board of Education. The statute (49-1403) is clear:

Upon completion of the probationary period, any teacher who is reemployed or retained in the system is entitled to the tenure status for which she is qualified by college training and certification

Further, Sec. 49-1402, T.C.A., in defining permanent tenure, specifies that it applies to teachers who meet certain educational requirements, hold valid professional certificates, have completed the probationary period and who are “reemployed by the board for service after the probationary period.” See State v. Lunsford, 207 Tenn. 33, 336 S.W.2d 20, 21 (1960).

In Snell v. Brothers, 527 S.W.2d 114 (Tenn.1975), we reaffirmed the language of Lunsford, holding that tenure did not attach unless, after completing the probationary period, the teacher was retained or reelected to the position.

The Board and the Superintendent insist that as a condition of tenure the employment by the Board must be made upon the recommendation of the Superintendent and that absent his recommendation there can be no tenure. We find nothing in the law to support this contention.

That portion of the general education law covering the local administration of schools is embraced in Sec. 49-201, et seq., T.C.A. Under Sec. 49-224 it is made the duty of the board to assign to its superintendent duties which include:

(10) To recommend to the board of education, supervisors, teachers, clerical assistants, and other employees in the schools.

This statutory duty, however, is not related to tenure. It originated as a part of Chapter 115, Public Acts of 1925, and, therefore, pre-dates the tenure law by a quarter of a century; and nowhere is a recommendation of the superintendent made a condition of employment. Sec. 49-214(1), T.C.A., vests in the local board of education the full and unconditional right to elect teachers.

The supremacy of the local board of education over the superintendent of schools is recognized in State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956). There the Court said:

The duties of the superintendent are highly important but they do not with respect to essential features of school management override the authority of the school board. Naturally the superintendent’s advice will be given much consideration, but the ultimate responsibility and the finality as to choice rests with the school board. It may act on its own sound judgment as to what is required by the public welfare, and contrary to advice from any source, even from the superintendent of schools. The school board is still the master and not the servant. 201 Tenn. 190-191, 297 S.W.2d 640.

See also Benson v. Hardin County, 173 Tenn. 246, 116 S.W.2d 1025 (1938) (holding that the exclusive management and control of county schools is in the county board of education).

We do not intend to denigrate the office of superintendent. We fully recognize the importance of this position and the prestige it rightfully carries; but under the statutory scheme of the general education law of this state, the school board is the dominating entity.

We hold that the recommendation of the superintendent is not essential to the employment, re-employment or retention of a public school teacher. Therefore, the absence of his or her recommendation is irrelevant to the issue of tenure.

We do not overlook the last provision in Sec. 49-1403, T.C.A.:

provided that the superintendent shall notify the board prior to reelection by the board that the teacher, if reelected, will attain tenure status.

The sole, and we think self-evident, purpose of this proviso is to insure that the board knows that re-employment will confer tenure. The record is silent as to whether this notification was made. In the context of this case, we cannot assume from a silent record that the board was unaware of the consequences of its action. In reviewing the action of a trial court in sustaining a motion to dismiss, it is incumbent upon us to construe the complaint liberally in favor of the plaintiff. Holloway v. Putnam County, supra. Further, for present purposes, we will presume that the superintendent performed his statutory duty and that proper notification was given.

We have not overlooked the provisions of Sec. 49-602, T.C.A., establishing a minimum foundation school program for grades kindergarten through twelve, and particularly subsection A(7) thereof, which provides in pertinent part:

In order for any professional position, together with the salary therefor . to be included in the minimum foundation school program, or to be paid from any public funds, the person filling such professional position shall be recommended by the local superintendent of schools and elected by the local board of education. However, such failure of recommendation shall not affect an employed teacher’s rights as otherwise set forth in this title. (Emphasis supplied).

The rights of tenurial teachers are “otherwise set forth in this title.” Further compliance with this section is a condition precedent to the funding of a teaching position but not to the acquisition of tenure. As we phrased it in Sanders v. Carmichael, supra:

The fact that funds may or may not be withheld from a school system by the Commissioner of Education is not determinative of, or in any way material to, the rights or duties of the plaintiff or the Dyer County School Board under the employment contract which is at issue in this case, or under the Teachers’ Tenure Law. 527 S.W.2d 94.

The source of the funds necessary to pay the salary of a teacher is wholly separate from the acquisition of tenure. Local school authorities must know that the conference of tenure results in salary payments, either from minimum foundation funds supplied by the state, or from county funds, and that state funds are not available absent the recommendation of the superintendent.

We hold that under the facts as pleaded in this case, and for purposes of this review, Sanders acquired tenure as a result of the action of the Dyer County Board of Education in electing her to a teaching position. The proof presented on remand may produce a different finding of fact.

III.

HOW TENURE IS TERMINATED

Permanent tenure is terminated by attainment of the maximum teaching age, resignation, retirement or dismissal. Sec. 49-1401(4)(a), T.C.A.

A tenurial teacher may be dismissed for “incompetence, inefficiency, neglect of duty, unprofessional conduct and insubordination, as defined in Sec. 49-1401.” Sec. 49-1412, T.C.A. The charges must be “made in writing, specifically stating the offenses which are charged, and shall be signed by the party or parties making the charges.” Sec. 49-1414, T.C.A.

The charges which would justify the dismissal of a tenurial teacher must be those specified in Sec. 49-1412, as these grounds are defined in Sec. 49-1401. Under this record the charge prompting Sanders’ dismissal, according to the official minutes of the Board, was that the Superintendent “felt that the instruction of the English department could be upgraded by employing other persons.”

The reason assigned by the Chairman of the Board and the Superintendent in their joint letter of August 23, 1974, wherein they advised her of her dismissal, was:

This action was taken due to a Chancery Court case between the Tennessee Education Association and the Tennessee State Department of Education regarding the legality of your employment under T.C.A. 49-602, A, 7. . . .

Assuming the existence of such a lawsuit, we cannot conceive of how litigation to which she was not a party could be treated as a reason for her dismissal. On the basis of the record before us, we hold that there was a total failure to comply with Sec. 49-1412 relating to grounds of dismissal. The result is that the notice she was given was defective in the first instance in that it gave her no notice of any valid reason for her dismissal. Further, there was no compliance with so much of Sec. 49-1415, T.C.A., as requires that along with the notice the teacher must be given “a copy of a form which shall be provided by the state commissioner of education advising the teacher as to her legal duties, rights and recourse under the terms of this chapter.”

We therefore hold that the grounds were inadequate and the notice defective.

It requires the receipt of notice of charges sufficient to warrant the dismissal of a teacher to trigger the provisions of Sec. 49-1416, T.C.A., providing for a public hearing pursuant to demand by the teacher. Having received notice of no valid charges, Sanders was not required legally to demand a hearing.

The Board contends that the instant suit was not timely filed in view of the requirement of Sec. 49-1417 that judicial review may be obtained by petition filed in Chancery Court within thirty days from the receipt by the teacher of notice of the decision of the board. Again, this section contemplates the preferment of valid written charges of conduct made a ground for dismissal. The dismissal of a tenurial teacher in the absence of such charges is invalid. The Board of Education may not invoke the protection of a statutory scheme, the principal requirements of which it ignored.

We find that Sanders, at all times, acted with diligence and promptness and that her suit is not barred by Sec. 49-1417, T.C.A.

IV.

On remand, and after appropriate pleadings and proof, the Chancellor will make and enter findings of fact relating to the basic issues of tenure and the termination thereof. Should the proof indicate that the facts are as we have found them on the basis of the pleadings only, the Chancellor will determine appellant’s right to reinstatement, back pay, and other damages. We direct that action on remand be expedited to the end that this controversy be settled once and for all.

Reversed and remanded.

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

ADDENDUM

Tax costs against the Dyer County Board of Education.

The Clerk and Master’s cost bill for the preparation of the transcript will be reduced by deducting therefrom the cost of improperly inserting in the record various memoranda of law and appendages thereto. This improperly included matter consists of 54 pages of an 88 page transcript or 61% of the total transcript. See Supreme Court Rule 7; Tennessee Clerks of Court Manual, Vol. I, Part II, 4.1(H).


text:
    Geraldine A. KELLY, Petitioner, v. Susie McBride ALLEN et al., Respondents.
    Supreme Court of Tennessee.
    Dec. 5, 1977.

      James S. Shields, Shields & Levit, Memphis, for petitioner.
    Rives A. Manker, Memphis, for respondents.
   OPINION

HENRY, Justice.

This is a suit in chancery seeking the rescission of a deed from a mother to a daughter upon the grounds of fraud and undue influence. The Chancellor dismissed the complaint and the Court of Appeals reversed. In our view the Chancellor reached the correct results. Accordingly, we reverse the Court of Appeals.

I.

Respondents challenge a quitclaim deed executed by Susie McBride Allen on May 10, 1975, conveying to her daughter, Geraldine A. Kelly, a tract of real estate situated on Summer Avenue, in Memphis, upon the grounds of fraud, misrepresentation, undue influence, lack of independent advice and absence of consideration. At the time of the conveyance the grantor was approximately eighty-eight years of age. The deed conveyed all the grantor’s real estate. It did not, however, operate to pauperize her in view of the fact that she had income totaling approximately $8,780.00 per year. Further she had cash to the extent of approximately $46,000.00. The deed was recorded on May 12,1975. On that same date these funds were transferred to an account in the joint names of Susie Allen and the petitioner, Geraldine Allen. They were re-transferred at a later date and these funds are not involved in this controversy except to establish a pattern allegedly pursued by petitioner.

On April 18, 1975, Susie McBride Allen addressed a letter to her daughter, the petitioner, who was a resident of Houston, Texas, which read in relevant part, as follows:

My dear child:
Ive [sic] been days, now months to say to you, come now, to me, while I’m yet here, to tie this home up, So no one can take it away from you. We, you and I are all that owns it if you can “quickly” come in & sign these papers now is the time, come while you can, and I’m yet here, otherwise you’ll lose all there is! ! ! !
Tell Les to see that you come imediately [sic]? (Emphasis in original)

After receiving this letter, petitioner came to Memphis and arranged with an attorney of her selection to prepare a quitclaim deed. She further arranged for a druggist, who was also a notary public, to take the acknowledgement. This was on May 10, 1975. Eleven days later, on May 21, 1975, Susie McBride Allen sued for rescission.

There was no direct evidence of fraud, misrepresentation or undue influence. The proof merely establishes the relationship, the opportunity for undue influence and the execution of the deed. Apparently the respondents rest their entire case upon the legal propositions that (1) a gift between persons occupying confidential relations is jealously scrutinized by the courts; (2) the existence of a fiduciary or confidential relationship imposes upon the recipient the burden of establishing its absolute fairness; and (3) the donee of such a gift must show that the donor had independent advice from a competent and disassociated individual.

Reliance upon these general principles apparently caused plaintiffs to limit their proof, with the result that the allegations with respect to fraud, misrepresentation and undue influence are not supported by the record evidence and this suit must fail unless the relationship of the parties per se gives rise to a presumption of undue influence.

In dismissing the action, the Chancellor in Memorandum stated:

Mere relationship of parent and child does not of itself create the relationship. There must be a showing of domination or control on one part and of trust and reliance on the other to warrant the nullification of the conveyance.

This is an abbreviated, but accurate, statement of Tennessee law.

The Court of Appeals, in reversing the Chancellor, held that at the time of the execution of the deed “a confidential relationship did exist between the grantor and grantee” and that “competent independent advice was necessary in order to save the conveyance.”

II.

The disposition of this case necessarily depends upon the application of certain controlling principles of law.

First we recognize it to be law in this jurisdiction that it is not influence that invalidates a conveyance or will but undue influence; that “[a] person has a right by fair argument or persuasion to induce another to make a will [sign a deed], and even to make it in his own favor,” provided the influence is “exerted in a fair and reasonable manner, and without fraud or deception.” Phillips’ Pritchard on Wills, Sections 130, 131; Halle v. Summerfield, 199 Tenn. 445, 287 S.W.2d 57 (1956). In Halle, the Court cited with apparent approval the case of Solari v. Albertine, 29 Tenn.App. 61, 193 S.W.2d 111 (1945), and with respect thereto noted:

It was there held that mere proof of a confidential relationship “does not raise the presumption that the beneficiary has exercised undue influence over the testator and cast upon her the burden of disproving undue influence”; (citation omitted) that is in the absence of a showing of some activity on the part of the beneficiary in connection with the preparation or execution of the will.” 199 Tenn. at 455, 287 S.W.2d at 61.

It is true that in this case the donee procured the attorney who drafted, and the notary who acknowledged the deed; but we think, as did the Chancellor, that this activity was pursuant to the donor’s letter insisting that donee “come immediately” and “tie this home up, so no one can take it away from you.”

Again, in Halle, the Court quoted from A.L.R. with approval:

It is settled that the mere fact that one who benefits by a will had a motive and an opportunity to exert influence over the testator is not sufficient, of itself, to create a presumption that the will was the product of undue influence. 199 Tenn. at 456, 287 S.W.2d at 62.

The landmark case of Turner v. Leathers, 191 Tenn. 292, 232 S.W.2d 269 (1950), phrases the general rule in terms of abuse of confidence and the exercise of “dominion and influence” as opposed to the mere existence of the confidential or fiduciary relationship.

In Peoples Bank v. Baxter, 41 Tenn.App. 710, 298 S.W.2d 732 (1956), the criterion is framed in terms of a confidential relationship between a “dominated” party and a “dominating” party. See also Mahunda v. Thomas, 55 Tenn.App. 470, 402 S.W.2d 485 (1965).

In Vantrease v. Carl, 56 Tenn.App. 636, 643, 410 S.W.2d 629, 632 (1966), the Court recognized that a mere confidential relationship “does not raise a presumption that the beneficiary has exercised undue influence over the testator and does not cast the burden on the beneficiary of disproving undue influence.”

And in Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn.App.1973), the Court held that “[p]roof of the existence of the normal family relationship between a parent and adult child, standing alone, does not give rise to an inference or presumption that either one exercises any dominion and control over the other.”

In Robinson v. Robinson, 517 S.W.2d 202, 206 (Tenn.App.1974), the Court of Appeals for the Eastern Section, makes it clear that “the relationship of parent and child does not, per se, create a confidential relationship,” and “does not raise a presumption that a deed from the parent to the child is invalid.”

Finally, in our recent case of Richmond v. Christian, 555 S.W.2d 105 (Tenn.1977), we applied the presumption on the basis of' a gift made to a “dominant party” and under a factual situation making independent advice mandatory.

In line with these authorities we hold that the normal relationship between a mentally competent parent and an adult child is not per se a confidential relationship and raises no presumption of the invalidity of a gift from one to the other. In order for such a presumption to arise there must be a showing that there were present the elements of dominion and control by the stronger over the weaker, or there must be a showing of senility or physical and mental deterioration of the donor or that fraud or duress was involved, or other conditions which would tend to establish that the free agency of the donor was destroyed and the will of the donee was substituted therefor. In such cases the rules require the application of the presumption and the rule of independent advice comes into play.

These rules, of course, are not applicable in those cases where a fiduciary relationship exists, e. g., guardian and ward, trustee and cestui que trust, or any other relationship where the law prohibits gifts or dealings between the parties. We, therefore, restrict this holding to the parent-child relationship.

In the case at bar, we find no fact or circumstance, or combination thereof, that would operate to invalidate the conveyance from Mrs. Allen to her daughter. We agree with the Chancellor that her decision was made while she was in Memphis and the daughter was in Texas. It was merely finalized in Tennessee.

The decision of the Court of Appeals is

Reversed.

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

      . This suit is incorrectly styled. The record shows that the Chancellor decreed that Mary A. Wylie and Rives Manker be “substituted as plaintiffs for Susie McBride Allen.” Thereafter, the case in chancery should have been styled in the names of the substituted plaintiffs. We have retained the incorrect style in order to conform to the designation used in Chancery Court, the Court of Appeals and, on brief, in this Court.


author: SANDERS, Judge.

text:
    Arthur SNELL and wife, Ethelyn Snell v. James F. LEFFEW and Roy F. Leffew, Jr.
    Court of Appeals of Tennessee, Eastern Section.
    July 19, 1977.
    Certiorari Denied by Supreme Court Dec. 12, 1977.
    Gerald F. Largen, Kingston, for appellants.
    S. Wallace Brewer, Kingston, for appel-lees.
   OPINION

SANDERS, Judge.

The question on this appeal is whether or not the Trial Court can, under Rule 60 of the Tennessee Rules of Civil Procedure, make an order of non-suit retroactive from the date the order was filed with the clerk and thereby bring into play the statute of limitations to bar a subsequent suit on the same cause of action.

The Plaintiffs-Appellants, Arthur Snell and wife, Ethelyn Snell, filed their original suit against the Defendants-Appellees, James F. Leffew and Roy F. Leffew, Jr., in the Circuit Court of Roane County some time prior to January 9,1975. The suit was for personal injuries and was set for trial on January 9, 1975. On January 8 counsel representing the Plaintiffs called the clerk and advised him he was taking a voluntary non-suit in the case. As a result of this conversation the clerk called the jurors who were to report and informéd them they need not appear. Nothing further transpired in the case until June 16 when Plaintiffs’ counsel filed an order of non-suit with the clerk. On September 19 Plaintiffs’ counsel wrote the following letter to Defendants’ insurance carrier:

“19 September, 1975
“Mr. Jerry Davis,
State Farm Service Center,
P.O. Box 10785.
Knoxville, Tennessee.
“In re Snell v. Leffew
“Dear Jerry:
“As you are aware, we took a non-suit in this case in January term. We are now preparing to refile, but I thought we might get together and see if we could discuss settlement prior to doing so.
“Please let me have your thoughts in this regard.
“Sincerely your,
“/s/ Gerald Largen”

It appears no negotiations followed and on June 11, 1976, Plaintiffs filed another suit against the Defendants on the same action.

The Defendants filed a motion with the court under Rule 60 of the Tennessee Rules of Civil Procedure to “correct” the order of June 16 to reflect the entry of the voluntary non-suit as of January 8. In the meantime Defendants filed a motion for summary judgment on the grounds the non-suit had been taken on January 8, 1975, and the filing of the suit on June 11, 1976, was five months after the one-year period allowed under T.C.A. § 28-106.

In their motion under Rule 60 Defendants say the order should be corrected as requested “in order to prevent Plaintiffs and their attorney from practicing a fraud upon Defendants and their attorney.” They further say, “ . . .to allow the order dated June 16, 1975, in the captioned cases to stand as it now appears might enable Plaintiffs’ attorney to utilize his unexcusable neglect in being five months tardy in conforming with the “better practice” mentioned in the case of Rickets v. Sexton, Tenn., 533 S.W.2d 293. The Court granted the Defendants’ motion under Rule 60 and ordered the entry of the non-suit as of January 8 rather than June 11. At the same time the Court sustained the Defendants’ motion for summary judgment.

Plaintiffs have appealed and assigned the action of the Court as error.

Voluntary non-suits are governed by Rule 41.01 of the Rules of Civil Procedure. As pertinent here, it provides:

“Voluntary Dismissal — Effect Thereof. —(1) Subject to the provisions of Rule 23.03 or Rule 66 and of any statute, and except when a motion for summary judgment made by an adverse party is pending, the plaintiff shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause; or by an oral notice of dismissal made in open court during the trial of a cause; or in jury trials at any time before the jury retires to consider its verdict and prior to the ruling of the court sustaining a motion for a directed verdict.” (Emphasis ours.)

The above rule makes a clear distinction in the.procedural requirements for taking a voluntary non-suit before trial and during the trial of the case. If the dismissal is made before the trial of the case it is to be done “by filing a written notice of dismissal.” If the dismissal is made during the trial of the case it may be made “by an oral notice of dismissal made in open court.”

In the case of Rickets v. Sexton, supra, our Supreme Court recognized the right of a plaintiff to take a non-suit prior to going to trial where he had given written notice to dismiss. The court said, at page 294:

“As we held in Stewart v. University of Tennessee, 519 S.W.2d 591 (Tenn.1974): “Rule 41.01(1) Tenn.R.Civ.P., provides for the free and unrestricted right of the plaintiff (at various stages of the proceedings) to take a voluntary nonsuit or to dismiss his action without prejudice except:
“a. in class actions
“b. in cases where receivers have been
appointed
“c. where precluded by specific statute
“d. in cases where a motion for summary judgment is pending.
“The rule specifies that a plaintiff ‘shall have the right to take a voluntary nonsuit or to dismiss an action without prejudice by filing a written notice of dismissal at any time before the trial of a cause’. This portion of the rule is not dependent upon the determination of the trial judge. The lawyer for the plaintiff is the sole judge of the matter and the trial judge has no control over it. It is not necessary that he approve the action of plaintiff’s counsel by signing any order; nor may he nullify the rules by an order ‘disallowing’ the nonsuit. All that is required to dismiss prior to the trial, in the absence of the existence of any of the exceptions above noted, is the filing of a written notice of dismissal.”

Although Plaintiffs’ counsel told the clerk on January 8 he was taking a non-suit, since this was prior to the trial we hold that under the rule such dismissal of the case was not actually effectuated until the filing of the written notice or order on June 16. The Trial Court was, accordingly, without authority to make it effective on an earlier date. Since the second suit was filed within one year of the filing of the voluntary non-suit it was error for the Court to sustain the motion for summary judgment.

The assignments of error are sustained. The judgment of the Trial Court is reversed and the case is remanded for a trial on its merits.

The cost of this appeal is taxed to the Appellants.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


text:
    Jessie Lewis EVANS v. Mary Helen EVANS.
    Court of Appeals of Tennessee, Eastern Section.
    July 27, 1977.
    Certiorari Denied by Supreme Court Nov. 7, 1977.

      J. Arnold Fitzgerald, Dayton, for plaintiff.
    Allen H. Carter, of Carter & Reid, Athens, for defendant.
   OPINION

SANDERS, Judge.

Both sides have appealed from a Chancery Court decree in a divorce proceeding.

Plaintiff, Jessie Lewis Evans, filed a complaint against the Defendant and Cross Complainant for a divorce on grounds of adultery. The Defendant filed a cross complaint asking for a divorce on the grounds of cruel and inhuman treatment. Each of the complaints sought disposition of their jointly-owned properties. The Plaintiff dismissed his complaint before the case came to trial and the case proceeded to trial on the cross complaint.

The Court granted the Cross Complainant a divorce and made a division of the properties. He declined to award attorney’s fees to the Cross Complainant. The Plaintiff made a motion for a new trial based on newly-discovered evidence. The Cross Complainant appeared in opposition to the motion. The Court overruled the motion and Plaintiff prayed an appeal. Cross Complainant asked for attorney’s fees for defending the motion for a new trial, which were allowed. She also asked for attorney’s fees for this appeal, which were denied.

Both sides have appealed and assigned error. The Plaintiff says it was error for the Court (1) to deny his petition to rehear based on newly-discovered evidence; (2) not to hear the newly-discovered evidence; (3) grant Cross Complainant a divorce; (4) award the Cross Complainant one-half of the properties. The Cross Complainant says it was error for the Court not to award attorney’s fees for this appeal.

In support of his petition to rehear Plaintiff filed affidavits by his two sons. The affidavit of one son, 13 years of age, stated he knew his mother was dating one, Kitty Ramsey, prior to the divorce. Kitty Ramsey would pick the Defendant up at their home and they would be gone a considerable period of time before returning. The affidavit of the other son, who is 18 years of age, stated the Defendant told him after the divorce she had been dating one, Fred Hayes, prior to the divorce.

Plaintiff says he had no way of obtaining this information prior to trial. He insists this evidence, if offered on a trial, would be grounds for the Court to grant him a divorce and if he were granted a divorce the Defendant would not be entitled to any of their properties under T.C.A. § 36-826.

The most recent case we have been cited to concerning newly-discovered evidence is the case of Serv-U-Mart, Inc. v. Sullivan County, Tenn., 527 S.W.2d 121 (1975). In that case the court said:

“The discovery of new evidence which could not have been previously discovered by due diligence may be the ground for a rehearing in Chancery, but such evidence must be pertinent to the issue raised by the pleadings. If new facts are discovered constituting a new issue not asserted at the trial, they may be brought before the Court by a supplemental bill in the nature of a bill of review, but again, only if the new proof could not possibly have been used at the trial.”

Although the Court could have considered the newly-discovered evidence in passing upon the merits of the Cross Complainant’s grounds for divorce, he could not have granted the Plaintiff a divorce. The Plaintiff had dismissed his bill and affirmative relief could have been granted to him only under Rule 60 of the Rules of Civil Procedure in the nature of a bill of review.

Plaintiff states in his affidavit that “at all times the plaintiff, affiant, has tried diligently to get all matters before this Court, affecting a particular case, but did not learn of the matters that would be taken up with this Court on a new trial of the matter until after the prior trial.” Plaintiff’s attorney also filed an affidavit in which he said, . . . At all times both before and after the trial of this case that affiant has been diligent- in his search for information for all facts to properly be before the court in this case.” Plaintiff fails to give any particulars as to what his efforts were to obtain, before the trial, the type of evidence he has now discovered.

In the case of Travis v. Bacherig, 7 Tenn. App. 638, 646, the court said:

“The defendant’s affidavit does not state any facts showing due diligence on his part. He merely stated that he had made diligent search and inquiry before the trial for witnesses. This is not sufficient. His affidavit must show reasonable diligence, that is, ordinary diligence to obtain the evidence before the trial. A mere statement of due diligence is not sufficient, but the facts constituting diligence must appear, and the facts must be specifically set out. Mere general statement that affiant inquired among persons likely to know, is not sufficient, the particulars must be shown. See Ross v. State, 130 Tenn., 392, 170 S.W., 1026.”

The trial court has wide discretion in matters of denying a new trial based on newly-discovered evidence. Zirkle v. Stegall, 163 Tenn. 323, 43 S.W.2d 192. The denial of a motion for a new trial or petition to rehear based on newly-discovered evidence will not be disturbed on appeal unless there has been an abuse of discretion by the trial court. Rea Const Co. v. Lane, 25 Tenn.App. 125, 152 S.W.2d 1033.

Plaintiff’s first and second assignments of error are overruled.

Plaintiff’s third assignment of error is the Court erred in holding the Defendant and Cross Complainant was entitled to a divorce because the acts of the Plaintiff upon which she relied were committed several months before suit was filed. One of the acts of the Plaintiff upon which the Cross Complainant relies occurred in February and another occurred around March or April before the cross complaint was filed in September. The Defendant testified that in February following an argument the Plaintiff put her out of the automobile on the highway after night and left her. In March, April or May he slapped her and choked her. Plaintiff argues that after his acts of alleged mistreatment of the Defendant they had lived together and she had forgiven or condoned his conduct and could not now rely upon it as grounds for divorce.

Plaintiff relies upon the case of Humphreys v. Humphreys, 39 Tenn.App. 99, 281 S.W.2d 270, in support of his contention. This case does no more than reiterate the well-settled rule in this jurisdiction that cruel and inhuman treatment may be forgiven and may not thereafter be relied upon as a ground for divorce unless there is some new act to revive it. Murrell v. Murrell, 45 Tenn.App. 309, 323 S.W.2d 15.

In his original complaint the Plaintiff says, “. . . the defendant is guilty of adultery on many occasions.” No proof was offered to support this allegation. It is a well-settled rule in this jurisdiction that falsely accusing a wife of adultery constitutes cruel and inhuman treatment. Cadle v. Cadle, 28 Tenn.App. 498, 191 S.W.2d 561.

If there had been a forgiveness of Plaintiff’s conduct by the Defendant his unsupported accusation of adultery would have constituted a revival. Plaintiff’s third assignment of error is overruled.

Plaintiff’s fourth assignment is the Court erred in awarding the Defendant one-half of their property.

The Plaintiff and Defendant were married for 28 years. Through their joint efforts they had accumulated an estate worth approximately $250,000. The Court awarded properties worth approximately one-half of this amount to each of the parties.

T.C.A. § 36-825 gives the court wide discretion to adjust and adjudicate the respective rights and interests of the parties in all jointly-owned property. In the case of Kittrell v. Kittrell, 56 Tenn.App. 584, 409 S.W.2d 179, the court said the statute should be “broadly construed and liberally applied to accomplish its objective.”

Under the facts in the case at bar we cannot say the Court abused his discretion. Plaintiff’s fourth assignment of error is overruled.

The Defendant’s assignment of error is the Court erred in not awarding her attorney’s fees for this appeal.

The proper place for awarding attorney’s fees lies with the trial court. Folk v. Folk, 210 Tenn. 367, 357 S.W.2d 828. However, it would have been premature for the Court to have awarded attorney’s fees for this appeal prior to its being perfected.

Defendant’s assignment of error is overruled.

The decree of the Chancellor is affirmed and the cost of this appeal is taxed one-half to the Plaintiff and one-half to the Defendant.

The case is remanded for the purpose of permitting the Trial Court to fix such attorneys’ fees, if any, which he deems proper for this appeal,

PARROTT, P. J. (E. S.), and GODDARD, J., concur.


author: POPE, Justice. SAM D. JOHNSON, Justice,

text:
    GENERAL MOTORS CORPORATION, Petitioner, v. Curtis Lee SIMMONS et al., Respondents.
    No. B-6604.
    Supreme Court of Texas.
    Nov. 9, 1977.
    Rehearing Denied Dec. 14, 1977.

      Vinson, Elkins, Searls, Connally & Smith, Harry M. Reasoner, Eleanor Swift Glass and Alan Schulman, Houston, Gus M. Hodges, Austin, Frazier F. Hilder, Thomas W. Watkins and Diane L. Kaye, Detroit, Mich., for petitioner.
    Jamail & Gano, Joseph D. Jamail Jr., S. Gus Kolius and Robert F. Stein, Baker & Botts, Finis E. Cowan and Richard Lee Josephson, Houston, for respondents.
   POPE, Justice.

Curtis Lee Simmons sued General Motors alleging actions in strict liability and negligence. He pleaded that the defective glass in his vehicle exploded causing permanent damage to his eyes. Simmons also joined Feld Truck Leasing Corporation and its employee driver, Hestle Andrew Johnston, alleging that Johnston was negligent in driving the Feld Truck into Simmons' car. Feld and Johnston sought indemnity against General Motors and General Motors prayed for contribution from Feld and Johnston. Prior to the trial, plaintiff Simmons made a settlement with Feld and Johnston, but they remained in the case as named defendants. The trial court rendered judgment on a jury verdict against General Motors for 1,000,000 dollars. The court of civil appeals reformed the judgment by granting General Motors contribution from Johnston and Feld and rendering judgment for the plaintiff for half a million dollars. 545 S.W.2d 502. Two primary questions are presented. General Motors seeks a reversal because the trial court refused to admit into evidence the terms of the “Mary Carter” settlement agreement that Simmons made with Feld and Johnston before trial. Simmons on the other hand says that Feld and Johnston should have been fully indemnified and that he should have a judgment for the entire million dollars against General Motors. We reverse the judgment of the courts below and remand the cause for another trial.

The “Mary Carter” Agreement

Hestle Andrew Johnston, Feld’s employee, failed to stop at a traffic signal and drove Feld’s truck into the left front door of Simmons’ 1962 Chevrolet. The impact bent the frame of the door on Simmons’ car, causing the laminated glass in the car window to explode into Simmons’ eyes and blind him.

Prior to the trial, Simmons entered into a covenant not to sue Feld and Johnston and an indemnity agreement with those defendants. The agreement recited that Feld and Johnston had paid Simmons a sum of money, the amount of which this record does not disclose. Simmons agreed that he would not sue Feld and Johnston, and he agreed also to pay Feld fifty percent of each dollar Simmons recovered against General Motors until Feld received 200,000 dollars. At trial, General Motors tried to show during opening statement, on cross-examination and in argument the nature of the agreement between Simmons and Feld and Johnston, but the trial court refused to permit the disclosure of the agreement.

The traditional Texas rule is that settlement agreements between the plaintiff and a co-defendant should be excluded from the jury. A contrary rule would frustrate the policy favoring the settlement of lawsuits. McGuire v. Commercial Union Insurance Co., 431 S.W.2d 347 (Tex.1968). The plaintiff Simmons and also the settling defendants, Feld and Johnston, strongly insist that there was no harm in excluding the evidence or explanation about the agreement since it was made clear to General Motors, the court and the jury that Feld and Johnston were not adverse to Simmons and were adverse to General Motors. In fact the attorneys for Simmons, Feld and Johnston, and General Motors each explained to the jury that Simmons, Feld and Johnston were allies against General Motors. From this, Simmons says that there was no misunderstanding and no harm to General Motors.

The judgments of the courts below must be reversed by reason of the exclusion of General Motors’ efforts to disclose the real nature of the settlement agreement. It was not an ordinary settlement agreement. By its terms, Feld acquired a direct financial interest in Simmons’ lawsuit. The financial interest of parties and witnesses in the success of a party is a proper subject of disclosure by direct evidence or cross-examination. While the alignment of the adversaries was disclosed, the jury did not know the extent of Feld’s interest or that it was a financial interest which depended upon the amount of the judgment for Simmons. Feld’s direct and substantial monetary interest in the success of Simmons’ action against General Motors comes from this part of the contractual agreement Feld had with Simmons:

3. In the event the parties to this agreement are successful in their prosecution of their causes of action against General Motors and a judgment is rendered against General Motors for money damages, and thereafter paid, Feld Truck Leasing Corporation will be entitled to and will receive from the proceeds of such judgment fifty (50%) percent of each dollar recovered, up to $200,000.00. In no event shall Feld Truck Leasing Corporation be entitled to recover under this agreement more than $200,000.00. All sums not attributable to Feld Truck Leasing Corporation under this agreement shall be payable to and the property of plaintiff, Curtis Lee Simmons and his attorneys.
4. Both Curtis Lee Simmons and Feld Truck Leasing Corporation and Hestle Andrew Johnston, Jr. shall bear their own attorneys fees and litigation expense and neither party shall have any financial responsibility for the attorneys fees or litigation expense incurred by the other party.
5. No settlement of the causes of action against General Motors will be effected without the joint consent of all parties to this agreement.

Agreements with a settling defendant who remains a party at the trial and retains a financial stake in the plaintiff’s recovery have been called “Mary Carter” agreements since the 1967 Florida decision of Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. App.1967). Some courts have wholly voided the agreements as against public policy. Lum v. Stinnett, 87 Nev. 402, 488 P.2d 347 (1971); Trampe v. Wisconsin Telephone Co., 214 Wis. 210, 252 N.W. 675 (1934). There is no contention in this case that the settlement agreement was void. Most courts that have addressed the issue, while not declaring these agreements void, have permitted the disclosure of the contracts to the jury when offered by a nonsettling defendant. See, e. g., Hemet Dodge v. Gryder, 23 Ariz.App. 523, 534 P.2d 454 (1975); Ward v. Ochoa, 284 So.2d 385 (Fla.1973); Gatto v. Walgreen Drug Co., 61 Ill.2d 513, 337 N.E.2d 23 (1975); Burkett v. Crulo Trucking Co., 355 N.E.2d 253 (Ind.App.1976); Grillo v. Burke’s Paint Co., 275 Or. 421, 551 P.2d 449 (1976); but see Klotz v. Lee, 36 N.J.Super. 6, 114 A.2d 746 (1955), appeal dismissed, 21 N.J. 148, 121 A.2d 369 (1956).

The Illinois Supreme Court wrote in Reese v. Chicago, B. & Q. R.R. Co., 55 U1.2d 356, 303 N.E.2d 382, 387 (1973), that “the use of loan agreements tends to undermine the adversary nature and integrity of the proceedings against the remaining defendant.” See also Kuhns v. Fenton, 288 So.2d 253 (Fla.1973); Ward v. Ochoa, 284 So.2d 387 (Fla.1973); Imperial Elevator Co. v. Cohen, 311 So.2d 732 (Fla.App.1975); General Portland Land Development Co. v. Stevens, 291 So.2d 250 (Fla.App.1974); Gatto v. Walgreen Drug Co., 61 Ill.2d 513, 337 N.E.2d 23 (1975); Michael, “Mary Carter” Agreements in Illinois, 64 Ill.B.J. 514 (1976). In Ward v. Ochoa, supra, the Florida Supreme Court said:

Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant’s misconduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret “Mary Carter Agreement.”

By analogy, there is another strong policy in Texas that one may not develop testimony that a party’s loss was covered by insurance since that fact is not considered material to the issue of liability. Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039 (1936); Page v. Thomas, 123 Tex. 368, 71 S.W.2d 234 (1934). When, however, as in another case, an agent of an insurance company that was the real party at interest took the witness stand under the semblance of being a disinterested witness to testify against the opposing party, his connection with the insurer was not exempt from cross-examination. Aguilera v. Reynolds Weil Service, 234 S.W.2d 282 (Tex.Civ.App. 1950, writ ref’d). The court in Aguilera quoted the general rule that interest, bias, or motive on the part of a witness may be elicited on cross-examination even though it incidentally discloses that the defendant is protected by insurance.

Feld stood to recover one out of every two dollars from the first 400,000 dollars of a judgment against General Motors. That kind of interest is a proper subject of cross-examination and proof. Trinity County Lumber Co. v. Denham, 88 Tex. 203, 30 S.W. 856 (1895); Robertson Tank Lines, Inc. v. Watson, 491 S.W.2d 706, 709 (Tex.Civ.App.1973, writ ref’d n. r. e.). The exclusion of the evidence was harmful error and the judgment must be reversed for that reason.

Simmons’ (Plaintiff) Claim for Indemnity

Plaintiff Simmons has appealed from that part of the judgment of the court of civil appeals which denied indemnification in favor of Feld and Johnston against General Motors. That court reduced the judgment by one-half because Feld and Johnston had settled with the plaintiff. See Palestine Contractors, Inc. v. Perkins, 386 S.W .2d 764 (Tex.1964).

The jury found that the glass in the door of Simmons’ car was defective and that the defective product was a producing cause and also the sole producing cause of Simmons’ eye injuries. The jury also found that General Motors was negligent, and that its negligence was the sole proximate cause of Simmons’ injuries. Upon those findings Simmons insists that the trial court correctly denied General Motors’ claim for contribution.

We agree with the holding of the court of civil appeals that, as a matter of law, the breaking defective glass was not the sole cause of the injuries. That court detailed the basis for its holding. Co-defendants Feld and Johnston filed an amended pleading, after making their settlement with Simmons. They confessed their liability to Simmons for damages. They stipulated that the manner in which Johnston drove his truck into the side of the Simmons’ vehicle was negligence. In view of those pleadings and admissions, as a matter of law, General Motors was a joint tortfeasor, but its negligence was not the sole cause of Simmons’ injuries. C. H. Leavell & Co. v. Vilbig Bros., Inc., 160 Tex. 600, 335 S.W.2d 211, 213 (1960).

Indemnity has been defined as “the payment of all of plaintiff’s damage by one tortfeasor to another tortfeasor who has paid it to the plaintiff.” Hodges, Contribution and Indemnity Among Tortfeasors, 26 Texas L.Rev. 150, 151 (1947). Contribution is “the payment by each tortfeasor of his proportionate share of the plaintiff’s damages to any other tortfeasor who has paid more than his proportionate part.” Hodges, supra.

In Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962), this court recognized that the method for determining whether one tort-feasor is entitled to indemnification from another tortfeasor may depend upon the nature of the case. Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941), was decided upon the basis of the different qualities of negligence, that is, a very high degree of care on the part of one tortfeasor and ordinary care by the other. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951), turned upon the breach of a duty which existed between the two tortfeasors. City of San Antonio v. Smith, 94 Tex. 266, 59 S.W. 1109 (1900), accorded indemnity in favor of the tortfeasor who was only vicariously liable by operation of the law. Then in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949), this court observed that in most of the indemnity cases, one tortfeasor had breached a duty which he owed to his co-tortfeasor and to the injured plaintiff. Although both tortfeasors are liable to the injured plaintiff, the court said, as between themselves the blameless should be allowed indemnity. The court then stated this rule: “In order to determine whether the loss should be shifted from one tort-feasor to another the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then determine whether such a one as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor.” The several approaches to the decision about indemnification are helpful, but it is perhaps not possible to state a single all-in-elusive one, since the variety of duties and situations is great. An earlier standard is now considered unsound. It was the one which tried to distinguish active and passive negligence.

When we view Feld as the plaintiff in an imagined suit against General Motors, we have the Feld vehicle, driven by Johnston, running into the side of the Simmons’ car, causing the defective General Motors’ glass to scatter into slivers inside the Simmons’ car. Feld’s damage against General Motors would have to be the liability he incurred by reason of Simmons’ injuries. Feld’s action would not be for any physical damages Feld, Johnston or their property sustained; it would be only for the liability to Simmons that they incurred. Cf. Nobility Homes v. Shivers, 557 S.W.2d 77 (Tex. 1977).

We ground our decision upon Section 402A of the Restatement Second of Torts. This court has pressed the manufacturer’s strict non-privity liability to the outer limits of Section 402A. We have held that the manufacturer owes a duty to the user or consumer or to his property. Franklin Serum Co. v. Hoover & Son, 418 S.W.2d 482 (Tex.1967); Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967). We then expanded that duty to include as a “user or consumer or . his property” a third person who also suffered physical injury to his person or property. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969).

Section 402A and our decisions, however, have limited the seller’s liability to the terms of the Restatement Rule which is “for physical harm thereby caused . . .” Feld and Johnston make no claim that they suffered physical harm. To extend the duty to include liability to others would mean that in all cases the seller or manufacturer is subjected to indemnity without regard to the independent torts of others. See Chamberlain v. Carborundum Co., 485 F.2d 31, 34 (3d Cir. 1973); Walters v. Hiab Hydraulics, Inc., 356 F.Supp. 1000 (N.D.Pa. 1973); Automobile Club Ins. Co. v. Toyota Motor Sales, 166 Mont. 221, 531 P.2d 1337 (1975); Northwestern Mutual Ins. Co. v. Stromme, 4 Wash.App. 85, 479 P.2d 554 (1971).

Simmons relies upon Heil Co. v. Grant, 534 S.W.2d 916 (Tex.Civ.App. 1976, writ ref’d n. r. e.), for his insistence that Feld and Johnston should be indemnified by General Motors. In Grant, the plaintiff’s decedent, James Grant, was repairing a dump truck owned by Vernon Grant. The bed of the truck had been raised by means of the hoist mechanism. While James Grant was beneath the bed, a cable was tripped, causing the bed to fall on and kill him. James Grant’s wife and children sued Heil Company, the manufacturer, in strict liability and Heil impleaded Vernon Grant, the decedent’s brother who owned the truck and was assisting James in making repairs. Heil urged that Vernon was negligent in permitting his brother to work beneath the raised bed and claimed contribution and indemnity. The court of civil appeals held that even if the brother, Vernon, was negligent toward the deceased, Vernon was entitled to indemnity from Heil, the manufacturer, because “defective design constituted a breach of the Heil Company’s duty to both Vernon Grant and [the] Decedent.” Our consideration of Heil Co. v. Grant, which we refused, no reversible error, did not include a review of the indemnity or contribution questions. The only points preserved for review concerned the exclusion of evidence and the defense of involuntary assumption of risk. Vernon Grant, to whom the court of civil appeals granted indemnity against Heil Company, was the owner, user and consumer of the truck. That situation is more analogous to the case of an innocent retailer who distributes the manufacturer’s defective product. Though strictly liable to an injured plaintiff, the retailer has been granted indemnity against the manufacturer when he is ignorant of a latent defect not reasonably discoverable. Roberts v. Richland Mfg. Co., 260 F.Supp. 274 (W.D.Mich.1966); Hughes Provision Co. v. La Mear Poultry & Egg Co., 242 S.W.2d 285 (Mo.App.1951); 3 L. Frumer and M. Friedman, Products Liability § 44.02[3] (1970 ed.). This is another group of cases in which indemnity is approached from a different point of view. In such cases where negligence and a product defect jointly cause third party injury, whether the negligent tortfeasor knew or should have known about the defect, Essex Wire Corp. v. Salt River Project Agricultural Improvement & Power Dist., 9 Ariz.App. 295, 451 P.2d 653 (1969); Allied Mutual Casualty Corp. v. General Motors Corp., 279 F.2d 455 (10th Cir. 1960), and whether some harm would independently result from the negligence, Essex Wire Corp. v. Salt River Project Agricultural Improvement & Power Dist, supra; Schuster v. Steedley, 406 S.W.2d 387 (Ky.1966); Kenyon v. F. M. C. Corp., 286 Minn. 283, 176 N.W.2d 69 (1970), are factors influencing the award of indemnity. As stated above, indemnity was not the question presented to this court in Heil but, assuming the fact that Vernon Grant did not know about the defect, the case was correctly decided.

We refused the application for writ of error, no reversible error, in South Austin Drive-In Theatre v. Thomison, 421 S.W.2d 933 (Tex.Civ.App.1967, writ ref’d n. r. e.). The case was factually similar to Heil, but it held the manufacturer was entitled to contribution. The injured plaintiff sued the manufacturer of the riding-type power mower for negligent design and the employer of the grounds keeper who negligently drove the power mower. The employer cross-acted for indemnity, arguing that the manufacturer had breached a duty to the user to supply a non-defective product and that the duty owed by the manufacturer to the injured boy was of a higher order than ordinary negligence. The Tho-mison court held that the “general duty” breached by the manufacturer to the user was not the type contemplated by Austin Road Co. v. Pope, supra, and that the higher level of duty analysis did not apply. Accordingly, the employer was denied indemnity against the manufacturer. While South Austin Drive-In Theatre v. Thomison was decided on negligence grounds, we see no reason that a manufacturer found strictly liable under the lesser standards of proof of Section 402A should be more culpable than the negligent manufacturer in Thomi-son.

We approve the judgment of the court of civil appeals below which denied indemnification against General Motors.

There is still the problem of contribution. This case arose on January 3, 1972, prior to the effective date of Article 2212a which treats contribution among negligent tortfeasors. Acts 1973, 63rd Leg., p. 41, ch. 28, sec. 4. That article, when applicable, prevails over Article 2212. There are jury findings in this case that General Motors was negligent and also that General Motors was strictly liable. Feld’s admissions establish its negligence as a matter of law.

Article 2212a, which is not here applicable, apportions the damages among the several tortfeasors upon principles of comparative negligence. The article deals specifically with negligence, and it nowhere uses the term “strict liability.” See subsections 2(b), (c), (d), and (e), Art. 2212a. Article 2212, on the other hand speaks not about negligence, but about torts. Strict liability is a tort. As stated in Comment “m” of Section 402A, “The basis of liability is purely one of tort.” It follows, therefore, that this case is governed by Article 2212 and is still controlled by Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764 (Tex.1964), even though the comparative negligence statute, Article 2212a, has preempted the allocation of liability among negligent tort-feasors controlled by that statute. See, Keeton, Annual Survey of Texas Law, Torts, 28 Sw.L.J. 1, 8 (1974).

This case is relatively simple in our application of Article 2212 and the division of damages for the two sets of defendants. We observe, however, that the system of comparative negligence and the apportionment of damages among negligent tort-feasors under Article 2212a is different from the division of damages among negligent and strictly liable tortfeasors under Article 2212. The present state of the statutory law permits apportioning contribution upon comparisons of negligent conduct among negligent tortfeasors. It does not provide any mechanism for comparing the causative fault or percentage causation of a strictly liable manufacturer with the negligent conduct of a negligent co-defendant. Article 2212a and the comparative causation advanced in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), portend problems which may retard the orderly trial of personal injury and property damage cases. This court respectfully invites further legislative study and amendments of Articles 2212a and 2212.

The judgments of the courts below are reversed, and the cause is remanded for another trial.

Dissenting opinion by SAM D. JOHNSON, J., joined by McGEE, J.

SAM D. JOHNSON, Justice,

dissenting.

This writer, in dissenting, would adopt the opinion of the court of civil appeals. 545 S.W.2d 502.

McGEE, J., joins in this dissent.

      . A “loan agreement” is one form of a Mary Carter-type settlement agreement. It is cast in the form of a loan that is to be repaid only if and to the proportionate extent that the plaintiff recovers against the other defendant. The “loan” is repaid out of the plaintiff’s recovery against the other defendant. See Burkett v. Crulo Trucking Co., 355 N.E.2d 253, 258 (Ind. App.1976); Annot., 62 A.L.R.3d 1111, 1113 (1975). As the Supreme Court of Oregon has said:
      Private agreements which constitute a partial settlement of a dispute between a plaintiff and two or more defendants and which retain the settling defendant as a party at the trial have become known as “Mary Carter agreements.” Such agreements may take on various forms depending upon the factual setting in an individual case and the underlying law in the particular jurisdiction. Grillo v. Burke’s Paint Co., 275 Or. 421, 551 P.2d 449, 452 (1976).

      . Art. 2212a. Comparative negligence; contribution among joint tortfeasors
      Modified comparative negligence
      Section 1. Contributory negligence shall not bar recovery in an action by any person or party or the legal representative of any person or party to recover damages for negligence resulting in death or injury to persons or property if such negligence is not greater than the negligence of the person or party or persons or parties against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person or party recovering.
      Contribution among joint tort-feasors
      Sec. 2. (a) In this section:
      (1) “Claimant” means any party seeking relief, whether he is a plaintiff, counterclaim-ant, or crossclaimant.
      (2) “Defendant” includes any party from whom a claimant seeks relief.
      (b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
      (c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.
      (d) If an alleged joint tort-feasor pays an amount to a claimant in settlement, but is never joined as a party defendant, or having been joined, is dismissed or nonsuited after settlement with the claimant (for which reason the existence and amount of his negligence are not submitted to the jury), each defendant is entitled to deduct from the amount for which he is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant’s own negligence bears to the total negligence of all defendants.
      (e) If an alleged joint tort-feasor makes a settlement with a claimant but nevertheless is joined as a party defendant at the time of the submission of the case to the jury (so that the existence and amount of his negligence are submitted to the jury) and his percentage of negligence is found by the jury, the settlement is a complete release of the portion of the judgment attributable to the percentage of negligence found on the part of that joint tort-feasor.
      (f) If the application of the rules contained in Subsections (a) through (e) of this section results in two claimants being liable to each other in damages, the claimant who is liable for the greater amount is entitled to a credit toward his liability in the amount of damages owed him by the other claimant.
      (g) All claims for contribution between named defendants in the primary suit shall be determined in the primary suit, except that a named defendant may proceed against a person not a party to the primary suit who has not effected a settlement with the claimant.
      (h)This section prevails over Article 2212, Revised Civil Statutes of Texas, 1925, and all other laws to the extent of any conflict. Acts 1973, 63rd Leg., p. 41, ch. 28, §§ 1, 2, eff. Sept. 1, 1973.
      All statutory references herein are to Vernon’s Texas Civil Statutes.

      . Art. 2212. Contribution • between tort fea-sors
      Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. If any of said persons co-defendant be insolvent, then recovery may be had in proportion as such defendant or defendants are not insolvent; and the right of recovery over against such insolvent defendant or defendants in judgment shall exist in favor of each defendant in judgment in proportion as he has been caused to pay by reason of such insolvency. Acts 1917, p. 360.


author: PER CURIAM.

text:
    The LOMAS AND NETTLETON COMPANY, Petitioner, v. Marion HUCKABEE et ux., Respondents.
    No. B-6860.
    Supreme Court of Texas.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.

      Locke, Purnell, Boren, Laney & Neely, John Guittard, Dallas, for petitioner.
    Thompson, Coe, Cousins & Irons, Michael R. Knox, Dallas, for respondents.
   PER CURIAM.

This is an action for breach of trust against the mortgage escrow account management firm, Lomas & Nettleton. The plaintiffs and mortgagors, Marion and Doris Huckabee, originally sued another defendant, American States Insurance Company, on the theory that the standard homeowners policy issued by American States to the plaintiffs validly covered the Huckabees’ fire loss of personalty. The plaintiffs then added as defendants the mortgage account management firm, Lo-mas & Nettleton. The theory against Lo-mas & Nettleton was that if the American States policy was invalid, its invalidity was caused by the wrongful actions of Lomas & Nettleton. American States and another defendant insurance company settled with the Huckabees. Through the settlements the Huckabees have recovered all of the real property loss caused by the house fire and eighty percent (80%) of their recoverable personalty loss.

After the American States settlement, the trial court granted defendant Lomas & Nettleton’s motion for summary judgment. On appeal the court of civil appeals reversed and remanded. 550 S.W.2d 371. The opinion of the court of civil appeals contains a more complete statement of the facts.

The only question presented is whether the Huckabees’ recovery against American States bars suit against Lomas & Nettleton for failure to provide insurance. Because the opinion of the court of civil appeals is in material conflict with the rule declared in a prior decision by this court, we reverse the judgment of the court of civil appeals and affirm the judgment of the trial court. Tex.R.Civ.P. 483.

This court’s adoption of the commission of appeals’ opinion in Seamans Oil Co. v. Guy, 115 Tex. 93, 276 S.W. 424 (1925), approved the following rule from Ruling Case Law on election of remedies:

If one having a right to pursue one of several inconsistent remedies makes his election, institutes suit, and prosecutes it to final judgment, or receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an es-toppel thereafter to pursue another and inconsistent remedy. [Emphasis added.]

The opinion of the court of civil appeals expresses the factual inconsistency of plaintiffs’ remedies in this language:

Plaintiffs had a remedy on the policies. Plaintiffs had an inconsistent remedy against Lomas & Nettleton for wrongfully preventing the American States policy from being in effect.
Plaintiffs’ cause of action against the insurance companies was on the policies of insurance and on the premise such policies were in effect. Plaintiffs’ cause of action against Lomas & Nettleton was on the premise the American States policy was not in effect due to wrongful action of Lomas & Nettleton. The remedies in the two causes of action are repugnant and inconsistent.

We agree with this statement of inconsistency. Since the remedies were inconsistent and since the Huckabees received the settlement benefits from their suit against American States, the Seamans rule should have been applied to preclude suit against Lomas & Nettleton. 25 Am. Jur.2d Election of Remedies §§ 24, 25 (1966).

The court of civil appeals apparently misconstrued the language of two recent cases. In Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869 (Tex. 1973), this court stated that “The bar of an election does not apply to the assertion of distinct causes of action against different persons arising out of independent transactions with such parties.” We adhere to that statement. In the present case the transactions were not independent. The Hucka-bees’ dealings with American States and Lomas & Nettleton were interconnected as a part of the same effort by the Huckabees to secure insurance on their household personalty.

Likewise, the reliance of the court of civil appeals on American Savings & Loan Association v. Musick, 531 S.W.2d 581 (Tex. 1976), is misplaced. Both the Custom Leasing and the Musick opinions explain that the parties to the actions were different and that the legal theories advanced were different. These factors are properly considered in deciding whether remedies are inconsistent. See Annot., 116 A.L.R. 601, 603 (1938). In contrast to the present case, however, the holdings in both Custom Leasing and Musick were that the remedies were neither inconsistent nor repugnant. In the Huckabees’ situation the remedies are inconsistent and repugnant.

The application for writ of error by The Lomas & Nettleton Company is granted. Without hearing argument, we reverse the judgment of the court of civil appeals by reason of the conflict with a prior opinion of this court. Rule 483. The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.