author: DONNELLY, Judge. BARDGETT, Judge SEILER, Chief Justice

text:
    STATE of Missouri, Respondent, v. Fred MUDGETT, Appellant.
    No. 59009.
    Supreme Court of Missouri, En Banc.
    Nov. 25, 1975.
    Rehearing Denied Jan. 12, 1976.

      M. Randall Vanet, North Kansas City, for appellant.

      John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., for respondent.
   DONNELLY, Judge.

Appellant, Fred Mudgett, was convicted of murder in the second degree by a jury in the Circuit Court of Boone County, and his punishment was assessed at 75 years imprisonment. Following rendition of judgment and imposition of sentence, an appeal was perfected to the Kansas City District of the Court of Appeals. The appeal was transferred here on the certification of a dissenting judge.

On September 20,1971, appellant, together with two other inmates, attempted to escape from Fulton State Hospital. The parties stipulated that at that time appellant was in lawful confinement in that hospital, so that his action was violative of Section 202.435, RSMo 1969. Shortly after the beginning of working hours in the Psychology Department, appellant appeared in one of the offices with a drawn knife and accosted a woman employee. He told her to “Be quiet and you won’t be hurt” or “Be quiet or I’ll kill you” or some words of like import. The woman employee then screamed “George!”, thereby seeking the aid of a fellow employee, George Chase. Chase responded to that call, at which point appellant yelled for one of his accomplices “to get him off.” Appellant’s fellow escapee, Williams, then hit Chase repeatedly with a metal mop bucket handle, causing a fatal skull fracture.

The three escapees then took the woman employee as hostage, with appellant and Herron barricading themselves with the hostage in one room, while Williams barricaded himself in a second room. Negotiations ensued between appellant and the hospital superintendent, in which appellant demanded unimpeded release from the hospital together with the furnishing of an automobile, on threat that if this was not done, the woman hostage would be raped and killed. During this period of negotiation, Williams shouted repeatedly, “I killed mine, why don’t you kill the bitch, why don’t you kill the bitch.” After approximately an hour of talking back and forth, appellant yielded and all three escapees surrendered.

Much later that same day, deputy sheriffs were summoned to the hospital, and appellant was brought into their presence at about 5:00 p. m. One of the deputies had a tape recorder. Appellant immediately demanded that the tape recorder not be used, and the officers complied with that request. One of the deputies then began to read the Miranda warning, but after only a few words was interrupted by appellant. Appellant stated that he would not sign any waiver or give any statement so long as he was at the hospital, but that he might possibly talk later if he were removed to either the police or sheriff’s department. Deputy Lee said he would see if the transfer could be arranged.

Later that same evening, officers again came to the hospital for the purpose of removing appellant from the hospital premises to the local jail. During this transportation, Deputy Lee again took out a “Miranda card” and read appellant his “rights.” While en route from the hospital to the jail, appellant told the officers he would like to talk to the Sheriff’s brother, Bob Salmons, whom appellant considered to be a friend.

Very soon after appellant arrived at the police station, Salmons came in and after some brief exchange of pleasantries, appellant began a narrative statement to Salmons of what had happened that morning. Essentially appellant talked and Salmons, asking few if any questions, listened.

After Salmons left, the officers again read the Miranda warning and appellant was handed a waiver of rights form. In connection with his right to consult an attorney, appellant indicated that he did have an attorney in Kansas City, but that he did not want to bother him at that time. He proceeded to sign a waiver form and to give an oral statement, which was then reduced to written form at about 9:30 p. m. The next morning appellant amplified his written statement of the evening before by a second statement. This second statement was preceded by an additional Miranda warning by Deputy Lee.

About 1:30 p. m. on September 21, appellant was arraigned, and a local lawyer was appointed as his counsel by the court. That night appellant summoned Deputy Lee to the police station for another consultation. Lee once again read him the Miranda warning, and appellant signed still another rights waiver. Appellant then proceeded to give a third statement which differed in substantial parts from the first two. In the most damaging portions of these three statements, appellant admitted that the escape had been planned for a period of approximately a month by Williams, Herron and himself; that they had discussed the possibility of resistance; that “[a]s the person leading the escape plan I instructed the others to stop the male employee in any way possible”; and that he had always planned from the beginning to kill the female employee whom he had taken as hostage.

The information on which this case was tried charged appellant with murder in conventional form. The instructions submitted the case to the jury both on murder first degree in conventional form and also on felony-murder in the second degree based upon commission of a homicide during the course of an attempt to escape. Appellant specifically requested a manslaughter instruction, which the trial court refused to give. The jury returned a verdict of not guilty of murder in the first degree; but did find appellant guilty of murder in the second degree, with the jury being unable to agree upon a sentence. Sentence was thereafter imposed by the court.

Appellant raises six points on appeal in essence as follows: (1) that the information failed to allege an offense under § 559.020, RSMo 1969; (2) that the trial court improperly restricted voir dire examination of the jury; (3) that the evidence did not warrant a submission of murder in the first degree; (4) that an instruction on manslaughter should have been submitted; (5) that appellant’s statements should have been excluded as involuntary; and (6) that his statements should have been excluded for the reason that he did not understandingly and knowingly waive his constitutional rights.

The facts of this case, as they appear in the principal opinion written in the Kansas City District of the Court of Appeals (Was-serstrom, J.), are set forth above without quotation marks. Those portions of this opinion which deal with Appellant’s Points (1), (2), (3), (5) and (6) were also written by Judge Wasserstrom and are adopted here, with minor changes, without quotation marks.

I.

Sufficiency of the Facts to Constitute Felony-Murder

Appellant argues that in order for an accused to be convicted of felony-murder under § 559.020, RSMo 1969, “the underlying felony should as a matter of logic be a felony at common law. . . . ” Although appellant has cited no authority for that proposition, his concept has been adopted in some other jurisdictions. La-Pave and Scott, Criminal Law, Section 71, p. 547.

However, this concept has been rejected in Missouri. In State v. Robinett, 279 S.W. 696 (Mo.1926), this court held that if a homicide is committed in the course of committing any of the felonies enumerated in what is now § 559.010, RSMo 1969, that becomes murder in the first degree; while if the intention is to commit any other felony, then the act becomes murder in the second degree under what is now § 559.020. Furthermore, this court quoted with approval from Wharton on Homicide which states that a felony-murder may be based upon an underlying act which has been made into a felony by statute although not such at common law.

The common-law felony-murder rule as developed in Robinett has been applied since to cases involving acts which were not felonies at common law. In State v. Shuler, 486 S.W.2d 505 (Mo.1972), the court applied the felony-murder doctrine to a homicide occurring during the felonious discharge of a firearm into a motor vehicle. The court in Shuler expressly rejected a contention there made “that the crime of shooting into a motor vehicle is not statutorily defined as a felony and was not a felony at common law, and therefore the felony-murder doctrine was improperly applied.” In rejecting that contention the court held that shooting into a motor vehicle is a felony in violation of § 562.070, RSMo 1969; and that since it is neither a felony listed in § 559.010, nor manslaughter, it must be considered murder in the second degree under § 559.020.

II.

Fairness of the Voir Dire Examination

During the early stages of the voir dire examination of the jury, appellant’s counsel addressed the following question to the court: “We have general questions and then individual questions after the general questions?” To this the court responded; “That’s normally the way we do it.” Immediately prior thereto the court had asked general questions of the jury panel and whenever a venireman responded to one of those general questions, the court pursued the matter with additional specific questions. The prosecuting attorney proceeded to follow essentially the same procedure. When defense counsel undertook his questioning of the panel, he adopted the same pattern.

When this procedure had been completed, and the discussion between the court and counsel turned to the matter of challenges, defense counsel discovered that the court and prosecuting attorney considered the voir dire examination completed. Defense counsel protested, stating that in his home county the customary procedure was to have general questioning of the jurymen as a whole, just as had just been completed in this case, but then to permit counsel to interrogate each venireman individually. Appellant’s counsel stated that he had understood from his question to the court and the court’s answer that this was the procedure to be followed in the present case. These protests by appellant’s counsel were overruled and his request to continue with further examination of the veniremen individually was denied.

That action by the trial court does not constitute grounds for reversal. The trial court has considerable discretion in the control of voir dire examination and the appellate court will interfere only when the record shows a manifest abuse of that discretion. State v. Scott, 515 S.W.2d 524 (Mo.1974); Brown v. Bryan, 419 S.W.2d 62 (Mo.1967); Olsten v. Susman, 391 S.W.2d 331 (Mo.1965). Nothing approaching an abuse of discretion appears here.

First of all, the procedure employed for the voir dire examination in this case finds direct approval in State v. Richards, 467 S.W.2d 33 (Mo.1971). Furthermore, nothing which happened in the trial court gave any reason to hold that generally permissible procedure to have been erroneous or unfair in this case.

The attorneys on both sides went into the voir dire examination with the benefit of questionnaires which had been filled out by each of the veniremen giving personal data. With that as the beginning point, extensive questioning took place in open court, taking up almost 100 pages of the transcript on appeal. Over and above the general questions put to the veniremen collectively, 44 out of a total of 60 veniremen were questioned individually by either the court or counsel; 21 of them were questioned individually by appellant’s counsel himself. The curtailment of any further individual questioning was not the result of any purposeful misleading of appellant’s counsel by either the court or the prosecuting attorney, but rather was attributable to defense counsel’s own failure to be more specific in his inquiry. The curtailment was reasonable, within customary limits, and cannot be said to have resulted in any reversible prejudice.

III.

Sufficiency of the Evidence to Support First-Degree Murder

The evidence outlined above amply supported a charge of first degree murder. However, an analysis of the evidence to demonstrate this fact is unnecessary, because even if the evidence were assumed to be insufficient in that regard, that would not affect the conviction of second-degree felony-murder. Inasmuch as the jury found appellant not guilty of first-degree murder, any error with respect to the submission of that charge has become harmless. State v. Strong, 339 S.W.2d 759 (Mo.1960); State v. Ashbrook, 11 S.W.2d 1037 (Mo.1928); State v. Howard, 486 S.W.2d 660 (Mo.App.1972).

IV.

Failure to Submit a Manslaughter Instruction

In 1931, in State v. Clough, 327 Mo. 700, 705, 38 S.W.2d 36, 38 (1931), Division No. 2 of this Court said:

“The authorities are fairly harmonious in holding that, in order for a homicide to be reduced from murder to manslaughter, there must be a sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control. It is not the assault or the provocation alone that reduces the grade of the crime, but it is the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent, and therefore the crime is not murder, but manslaughter. .
“In the case now before us, there is abundant testimony by disinterested witnesses to the effect that deceased made numerous threats against the life of the defendant. These threats were communicated to defendant. In addition, defendant testified that deceased followed defendant on two occasions within a few days prior to the homicide and threatened to assault him. Defendant testified he armed himself with a deadly weapon for the purpose of protecting himself against the threatened assaults of deceased; that at the time of the shooting deceased advanced toward him, stating T will get you now,’, etc., and threw two rocks at defendant, and when deceased reached a point of about six feet from defendant, defendant shot to protect himself. After the shooting, defendant calmly walked by the body of the deceased and telephoned the sheriff that he had killed the deceased. Under this testimony there is no room for manslaughter. The killing of the deceased was not the result of a sudden provocation, calculated to excite the passion of defendant beyond control. If defendant is to be believed, he should be acquitted on the ground of self-defense. If defendant is not to be believed, then he is guilty of murder. . . . The court did not err in failing to instruct on manslaughter.”

In 1969, in State v. Smith, 445 S.W.2d 326, 331 (Mo.1969), Division No. 1 of this Court cited the Clough language and held that, on the facts in the case, “the trial court likewise did not err in failing to instruct on the issue of manslaughter.”

In 1971, in State v. Ayers, 470 S.W.2d 534, 538 (Mo. banc 1971), this Court en banc held that unless we can declare as a matter of law that there is “ ‘an entire absence of evidence upon which to rest a verdict of guilty of manslaughter,’ ” it is the duty of the trial court to give an instruction on manslaughter.

In 1972, in State v. Hubbard, 484 S.W.2d 224, 226 (Mo.1972), Division No. 1 of this Court cited the Clough language and held that “the trial court did not err in refusing to give the manslaughter instruction.”

In 1972, in State v. Patterson, 484 S.W.2d 278, 280 (Mo.1972), Division No. 2 of this Court cited the Clough language and said:

“On this record, we hold that the trial court erred in failing to instruct on manslaughter because we cannot declare as a matter of law that the killing of Robert Russell was not the result of a ‘sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control.’ State v. Clough, supra; State v. Ayers, supra; and Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980, wherein the United States Supreme Court said:
“ ‘A judge may be entirely satisfied, from the whole evidence in the case, that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet, if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.”

In 1973, in State v. Jackson, 496 S.W.2d 1, 4 (Mo. banc 1973), this Court en banc cited the Clough language and held, on the record in that case, that “the trial court did not err in failing to instruct on manslaughter because there is no evidence which would support a reduction of the homicide from murder to manslaughter.”

In 1975, in State v. Stapleton, 518 S.W.2d 292, 299, 300 (Mo. banc 1975), this Court en banc referred to Ayers, in part, as follows:

“. . . Affirmatively put, Ayers holds that when there is evidence sufficient to submit second degree murder, there is automatically evidence sufficient to submit manslaughter and that it is the function of the jury to decide whether the defendant acted with premeditation and malice.
“In short, the significance of State v. Ayers, supra, is the holding that the trial court is required to submit manslaughter in murder second degree cases on the basis of the evidence which supports the second degree murder instruction even though there is no evidence of lack of malice or premeditation — no evidence of provocation.”

The writers of the principal, concurring and dissenting opinions in the Kansas City District of the Court of Appeals would seem to have agreed that, by use of the above language, Stapleton construed Ayers to require that, where conventional murder instructions are supported by the pleadings and evidence and are given, there must be an automatic submission of manslaughter. This requirement has been in effect since March 1, 1975 (See MAI-CR 6.02, Caveats). This requirement was not instituted by Ayers. Any contrary implication from the language appearing in Stapleton is unfortunate if “automatic” submissions were made prior to March 1, 1975.

As demonstrated above, in Smith, Hubbard, Patterson and Jackson, the Clough language has controlled. The significance of Ayers lies only in its emphasis on “the relative functions of judge and jury in a felonious homicide case,” and in its holding that it is the duty of the judge to instruct on lesser grades of homicide unless he can declare, as a matter of law, that there is no evidence to support such submission.

Accordingly, we apply the Clough language to the facts of this case. The evidence at trial showed that George Chase, the deceased, came to the rescue of Kay Mohatt after her call for help. Chase grabbed appellant around the neck and was attempting to pull him away from Kay Mohatt and appellant called “get him off.” Appellant’s fellow escapee, Williams, then killed Chase with a mop bucket handle.

On this record, we declare, as a matter of law, that there is no evidence to support a submission of manslaughter under Clough.

V.

Voluntariness of Appellant’s Statements

Appellant argues that the totality of the circumstances demonstrates that the statements given by him were involuntary. To support this conclusion, he points to the following factors: (1) that as an inmate of a mental institution, he is subject to special disability; (2) that he agreed to make a statement in order to get away from the hospital out of fear for his own safety; and (3) because there was undue delay in arraignment.

As to the first point, it must be noted that appellant was confined in Fulton State Hospital as a sexual psychopath, not because of any more generalized mental disability. Appellant made no defense in this case on the ground of a mental disease rendering him non-responsible for the criminal act, nor did he claim any inability to cooperate effectively with his counsel. Nor was there any effort to prove, at the hearing on the motion to suppress these statements, that appellant was mentally incapable of understanding the nature of the police investigation or the purport of his statements. No authority is cited for the proposition that a sexual psychopath is automatically incompetent to make an incriminating statement, and no good reason appears for establishing that as a general principle.

Nor do the facts support appellant’s intimation that he submitted to promises or inducements of others. Even though and perhaps because he was suffering from his own self-generated fears, appellant himself instigated the idea of his being removed from the hospital and he himself took the lead in suggesting that he might make a statement if removed to the sheriffs office or to the police station. The record is completely empty of any evidence concerning a promise by any officer by way of inducement for him to make a statement, and appellant freely admitted that he was not subjected to any physical maltreatment. To cap it all, appellant did at no time commit himself to make a statement if he were removed from the hospital, and when he did finally make a statement it was at a time when he was already physically lodged at the police station.

With respect to the alleged delay in bringing appellant before a magistrate, a comparison of the time at which appellant was first accosted by the officers in the hospital and asked for a statement until the time that he was brought before the magistrate, shows that slightly over 20 hours expired. If it be assumed that this confrontation constituted an arrest and a holding in custody separate and apart from appellant’s original commitment to Fulton State Hospital, then there would barely be a violation of Rule 21.14. However, the first two of appellant’s three statements were made well within the 20-hour limit. In any event, a violation of the 20-hour rule does not as a matter of law render a confession involuntary. State v. Menz, 341 Mo. 74, 106 S.W.2d 440 (Mo.1937).

The trial court in this ease held a hearing concerning the voluntariness of appellant’s statements. The trial judge had the opportunity to see and hear the appellant so as to judge his competency and the trial court considered all the facts and circumstances now contended to show involuntariness. The trial court’s ruling, not being clearly erroneous, will not be set aside. State v. Garrett, 510 S.W.2d 853, 855 (Mo.App.1974).

VI.

Alleged Violation of Appellant’s Constitutional Rights

Appellant’s contention concerning violation of his constitutional rights has several prongs. First, he contends that he did not sign a waiver of rights until after he had already made an oral statement to Bob Salmons in the presence of the police officers, and that the prosecution failed to show that the statement made to Salmons was made pursuant to a knowing and intelligent waiver of the privilege against self-incrimination and of the right to counsel. In advancing this argument, appellant seeks to brush aside important evidence going to show that appellant did knowingly and voluntarily waive these rights. From the very first moment that the police officers met with appellant, they attempted to read a Miranda warning to him, but were interrupted in doing so by appellant himself. Furthermore, at that first meeting, appellant insisted that a tape recorder not be used, and that request was immediately honored. Still further, when requested to give a statement, appellant evidenced a knowledge of his right to be silent because he refused to make a statement and indicated that he would consider doing so only if he were removed from the hospital premises.

When the officers returned later that evening to take appellant from the hospital, they then again took out the Miranda card and did at that time complete a reading of the Miranda warning. Immediately after that, appellant took the initiative in asking for his friend, Bob Salmons, and when Salmons arrived appellant proceeded to loosen the flood gates of his memory without any urging from anyone. The trial court could fairly deduce from this sequence of events that appellant fully appreciated his constitutional rights to be silent, that he effectively used those rights as a lever to get himself removed from the hospital premises and to obtain the presence of his trusted friend, and that he then intelligently and understandingly decided to use his rights no further, but rather to make a clean breast of all the facts. State v. Alewine, 474 S.W.2d 848 (Mo.1971).

Appellant also complains that he asked for permission to contact a lawyer but that a hospital staff member refused to allow him to do so. This contention rests solely upon the testimony of appellant himself and is inconsistent with his declination to take advantage of later offers to permit him to consult with counsel if he desired to do so. It was well within the authority of the trial court to refuse to credit the testimony in question by the appellant.

Finally, appellant argues that when appellant declined to give a statement when first so requested at the hospital, that was an indication that he did not want to be questioned at all and the interrogation should then have ceased completely. The facts are not quite so simple. Appellant did not flatly refuse to answer questions, but rather he said that he would not do so at least until he was removed from the hospital premises. Once he was removed from the premises, his statement poured out voluntarily without even the necessity of the prod of questioning. The authorities cited by appellant with respect to this point are readily distinguishable.

The judgment is affirmed.

MORGAN, HOLMAN, HENLEY and FINCH, JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

SEILER, C. J., dissents in separate dissenting opinion filed.

BARDGETT, Judge

(concurring).

I concur in the principal opinion and desire to state my reasons for so doing.

State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971) was decided before this case was tried. The instant case was tried in May 1973 and was on a charge of murder in the first degree. The court gave a conventional first-degree-murder instruction but did not give a conventional second-degree-murder instruction nor a manslaughter instruction. Appellant complains of the refusal to give a manslaughter instruction.

In State v. Johnson, 505 S.W.2d 94 (Mo.1974), the defendant was convicted of murder in the first degree under a conventional first-degree-murder instruction. The case was based upon circumstantial evidence. On appeal the defendant complained of the failure of the court to give a conventional murder second-degree instruction. The point was sustained and the case reversed and remanded for new trial but in so doing the opinion said that, “This is not a case in which, under the evidence, the accused is guilty of murder in the first degree or is entitled to be acquitted. See, for example, State v. Crow, 486 S.W.2d 248 (Mo.1972); State v. Terry, 472 S.W.2d 426 (Mo. banc 1971).”

Thus, it is seen by State v. Johnson, supra, that at the time the instant case was tried, it was still the view of this court that it was not error to fail to instruct on murder second in direct-evidence cases if the case was of the Crow or Terry type.

State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), was a circumstantial-evidence second-degree-murder case in which the court did instruct on manslaughter. This court affirmed citing, inter alia, State v. Johnson, supra. Stapleton also discussed the role “provocation” plays in second-degree-murder cases and held that there need not be evidence of provocation in order to support an instruction on manslaughter.

In my opinion, Johnson and Stapleton stand for the proposition that in circumstantial-evidence-murder cases the trial court must submit on the lesser conventional homicide instructions.

In State v. Clough, 327 Mo. 700, 38 S.W.2d 36 (1931), State v. Smith, 445 S.W.2d 326 (Mo.1969), State v. Hubbard, 484 S.W.2d 224 (Mo.1972), State v. Jackson, 496 S.W.2d 1 (Mo. banc 1973), and State v. Patterson, 484 S.W.2d 278 (Mo.1972), the court decided the issue of whether it was error to refuse to give a manslaughter instruction in a second-degree-murder prosecution by considering whether there was evidence of a sudden unexpected assault, encounter, or provocation tending to excite the passion beyond control. In my opinion, Stapleton held that the lack of evidence of provocation does not warrant a refusal to give a manslaughter instruction and to that extent inferentially overruled holdings to the contrary in earlier cases and, therefore, I do not agree that Clough controls the issue of the manslaughter instruction in the instant case. State v. Stapleton, supra, at 299.

In my opinion, the decision in the instant case is controlled by State v. Johnson, supra. Johnson described the factual situation in which the court was required to give a lesser homicide instruction (murder in the second degree) and the situation described therein was a circumstantial-evidence case. Stapleton followed Johnson and was also a circumstantial-evidence case. The instant case is a direct-evidence case and is not specifically included within the holdings of Johnson or Stapleton.

I also do not believe the court should generally give retroactive effect to changes in the MAI-CR instructions and specifically would not do so here. To adopt a policy of giving retroactive effect to changes in instructions would seriously impede meritorious advancements in the procedural law of this state because of the predictable concern over invalidating convictions which were supported by the evidence, as this one is, under proper submission as of the time the case was tried.

I, therefore, concur.

SEILER, Chief Justice

(dissenting).

I do not see how we can avoid holding it was error not to give the requested manslaughter instruction. When we announced the requirement that instructions must be given on second degee murder and manslaughter in all cases where the pleadings and evidence warrant submission of conventional first degee murder, it amounted to a declaration by this court that whenever there was evidence sufficient to submit conventional first degee murder there is also evidence sufficient to submit second degee murder and manslaughter and it is the function of the jury to decide whether the defendant acted with premeditation and malice: conventional first degree murder involves an intentional killing with deliberation and premeditation; but a jury may disbelieve the evidence as to deliberation but believe it as to premeditation, thus finding second degree murder; or the jury may disbelieve the evidence both as to deliberation and premeditation, which under Sec. 559.070, RSMo 1969, still leaves manslaughter, assuming the homicide is not justifiable or excusable.

If we were correct in what we did, then the fact the present case was tried before March 1, 1975, is immaterial, because if first degree murder includes all that is necessary to prove a case of second degree murder or of manslaughter, depending on what the jury chooses to believe or disbelieve, that proposition does not depend on a particular date — it comes about because of what goes to make up first degree conventional murder. That did not change on March 1, 1975 or suddenly include something on that date it had never contained before. So there inevitably were facts present in the case before us on which the jury could have returned a verdict of manslaughter, it being conceded that the evidence “amply supported a charge of first degree murder.” That being so, the requested manslaughter instruction should have been given and for the failure to do so the judgment should be reversed and the cause remanded.

If this is not so, then by insisting that in all conventional first degree murder cases there must also be instructions on conventional second degree murder and manslaughter, we would be helping convict defendants on second degree murder or manslaughter whether there was any evidence to warrant such submissions or not. I know that I for one had no such intention when I agreed to the requirement above mentioned. Therefore, I respectfully dissent.


source: Caselaw Access Project

author: SEILER, Chief Justice. HENLEY, Judge DONNELLY, Judge

license: Public Domain

text:
    Dennis SCHEIBEL, Plaintiff-Appellant, v. Betty HILLIS et al., Defendants, Betty Hillis, Defendant-Respondent.
    No. 59000.
    Supreme Court of Missouri, En Banc.
    Jan. 12, 1976.

      Joyce P. Hayes, St. Louis, Hayes & Hayes, St. Louis, for appellant.
    Kemper R. Coffelt, St. Louis, Heneghan & Roberts, St. Louis, for defendants-respondent.
   SEILER, Chief Justice.

The question presented is whether plaintiff’s petition in a case where plaintiff was shot by a third person with a weapon kept by defendant in her house states a claim upon which relief can be granted. The trial court held it did not, which was affirmed by the court of appeals, St. Louis district. We transferred the case on application of plaintiff, Art. V, Sec. 10,1945 Missouri Constitution. We reverse and remand.

Borrowing the language of the court of appeals reducing the petition to its simplest terms, plaintiff alleges that on or about February 14, 1972, in the residence of defendant Betty Hillis, plaintiff was shot in the right leg with a 12 gauge, single-barrel shotgun, owned by the defendant and fired by one Richard James Joyner; that defendant with full knowledge of prior particular acts of Joyner of a mischievous, wanton and brutal nature, and wanton and willful acts of violence against other persons did keep in her possession said loaded shotgun; that prior to February 14, 1972 defendant notified Joyner of such possession; that said weapon was kept in a place where defendant knew or should have known that Joyner was likely to use it so as to create an unreasonable risk of harm to plaintiff and other persons; that defendant failed to give plaintiff any warning or notice of Joyner’s dangerous and violent propensities and character, wanton disposition and threats of which defendant knew or should have known, and of the fact that she kept a loaded shotgun as protection from Joyner; and that as a direct and proximate result of the foregoing negligence and carelessness of defendant, together with Joyner’s firing of said weapon at plaintiff with the intention of inflicting great bodily harm and injury, plaintiff suffered severe and painful injuries and other loss and damages.

A petition seeking damages for actionable negligence must allege “ultimate facts” which, if proven, show (1) existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973); Wise v. Towse, 366 S.W.2d 506, 510 (Mo.App.1963).

A duty to exercise care not only may be imposed by a controlling statute or ordinance or assumed by entering into a contractual relationship, but it may be imposed by common law under the circumstances of a given case. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (1952). As to the duty owed to invitees, licensees and trespassers by an owner-occupier of land, the significance of the status largely disappears once the presence of the visitor becomes known, and a uniform duty, that of reasonable care, is owed to each as to the activities conducted on the premises. Penberthy v. Penberthy, 505 S.W.2d 122, 126 (Mo.App.1973). Negligence depends upon the surrounding circumstances and the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances would not be negligent in others. Tharp v. Monsees, 327 S.W.2d 889, 893-4 (Mo.banc 1959); Zuber v. Clarkson Construction Co., supra, 251 S.W.2d at 55. The circumstances may even be such that an otherwise innocent act will become negligent because of the expectable action of a third person. Zuber v. Clarkson Const. Co., supra at 55. It has been said that where an instrumentality is rendered dangerous to persons rightfully in its proximity by the act of a third person which act might have been reasonably anticipated by the person responsible for the instrumentality, failure to take appropriate precautions to avoid injury constitutes negligence. Triplett v. Shafer, 300 S.W.2d 528, 531 (Mo.App.1957); Zuber v. Clarkson Const. Co., supra, 251 S.W.2d at 55. This is true whether the third person’s act is innocent, negligent, intentionally tortious or criminal. Zuber v. Clarkson Const. Co., supra, at 55.

The reasonable anticipation of danger is an essential element of actionable negligence; and whether negligence exists in a particular situation depends on whether or not a reasonably prudent person would have anticipated danger and provided against it. Hodges v. American Bakeries Company, 412 S.W.2d 157, 162 (Mo.banc 1967); Price v. Seidler, 408 S.W.2d 815, 822 (Mo.1966). Restatement (Second), Torts, Sec. 302B, comment e, note D requires that a reasonable man must anticipate and guard against the intentional or criminal misconduct of others where he has brought into contact or association with others a person whom he “knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.” Factors to be considered in determining whether or not one is required to take precautions in the above described situation include the known character, past conduct and tendencies of the person whose conduct causes the harm, the opportunity or temptation which the circumstances may afford him for such misconduct, together with the gravity of the harm which may result. See Restatement (Second), Torts, Sec. 302B, comment f.

There is a duty “to prevent injury to such persons as may, within the range of reasonable probability, be exposed to injury” from an indiscreet and reckless party with a firearm. Charlton v. Jackson, 183 Mo.App. 613, 167 S.W. 670, 671 (1914). With respect to the problem of proximate causation, if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby. Zuber v. Clarkson Const. Co., supra, 251 S.W.2d at 55.

The court of appeals concluded plaintiff was endeavoring to allege actionable negligence on the part of defendant Hillis in failing to anticipate and guard against the intentional and criminal misconduct of Joyner and had succeeded in establishing that defendant owed plaintiff a duty of reasonable care at defendant’s residence, with which we agree. However, the court of appeals concluded further that facts were not alleged from which it could be found that defendant as a reasonably prudent person should have anticipated the intentional and criminal interference of Joyner; that the allegation that defendant kept a loaded shotgun as protection from Joyner in a place known to him, “with full knowledge of prior particular acts of defendant Joyner of a mischievous, wanton and brutal nature, and wanton and wilful acts of violence against other persons, which acts were likely to result in probable consequence of injury to others” was no more than a conclusion and hence the petition does not authorize a finding that defendant should have reasonably anticipated and guarded against the intervening criminal act of Joyner, that the acts themselves were not described but merely characterized in general adjectival terms, and therefore the petition did not state a cause of action.

We disagree, bearing in mind that in considering the sufficiency of a petition on a motion to dismiss, we are to give the averments a liberal construction and accord the petition those reasonable inferences fairly deductible from the facts stated.

In Charlton v. Jackson, supra, plaintiff recovered judgment against a thirteen year old boy and his parents for injuries received when the boy shot plaintiff in the right side with a shotgun while plaintiff was a caller in defendants’ home. The petition alleged that the father was negligent in that he permitted his minor son to own and control a shotgun “when he knew the boy was reckless and careless and highly indiscreet” and that the mother, on whom the duty of control devolved in the absence of the father, was negligent, too, in permitting the son, so known by her to be reckless, careless and indiscreet, to possess and control the gun in the absence of the father. There is no indication the petition set forth the basis of the knowledge alleged on the part of the defendant parents, although the evidence was that the boy was reckless, careless, possessed of high animal spirits and without ordinary discretion and that both parents knew that a few days earlier he had pointed the gun at plaintiff and she had remonstrated with him for doing so. The opinion does not specifically discuss the sufficiency of the petition, but the court stated that “[t]he evidence tends to prove all of the averments of the petition”, 167 S.W. 1. c. 671, affirmed the judgment for plaintiff, and the fair inference is that the petition was considered sufficient.

In National Dairy Products Corp. v. Freschi, 393 S.W.2d 48 (Mo.App.1965) plaintiffs sued for damage to a runaway truck and for medical expenses incurred by one who was injured in trying to rescue the child who had started the truck. The defendants were a three year old boy and his parents. One of the allegations of negligence against the parents was that they negligently failed to control their son “when they knew or in the exercise of ordinary care could have known that said child had a propensity for entering on and attempting to drive trucks.”

In his opening statement, plaintiff’s attorney related that the evidence would show the driver parked the milk truck at the curb, left to make a delivery, noticed the truck was starting to roll down a steep hill with the child in the front seat and made a mad dash to rescue the child and stop the truck, but did not succeed before it ran into a house. Counsel went on to say that plaintiffs were “unable to find any evidence that young Freschi had ever been known to climb into and start an automobile or truck before.” On the basis of this admission in the opening statement, the trial court directed a verdict in favor of the defendant parents. On appeal the judgment was affirmed, the court pointing out that plaintiffs had admitted they had no evidence to show negligence of the parents in the respect charged. Again the sufficiency of the petition was not treated directly, but the fair import of the opinion, in the manner in which it detailed the charge against the parents, namely, “with having knowledge that Richard had a propensity for entering and attempting to drive trucks and that they failed and refused to restrain him in that propensity”, 393 S.W.2d 1. c. 52-53, in connection with the discussion of what is required to show knowledge on the part of the parents, is that the foregoing allegations were sufficient to state the required knowledge on the part of the parents.

We believe the present petition is sufficient against a motion to dismiss. It invokes the substantive principles of law which entitle plaintiff to relief. It alleges facts which inform defendant of what plaintiff will attempt to establish at trial. The allegation of full knowledge on the part of defendant of prior particular acts of Joyner likely to injure others is more than a conclusion or consequence. It is equal to alleging that defendant was aware that Joyner had acted on earlier occasions in a way which would probably injure others at hand. These are not “color” words, but are facts from which it can be concluded defendant should have anticipated the danger. Plaintiff could be compelled by motion to make more definite and certain to plead more specifically or by interrogatories to give more information as to prior acts and how defendant had knowledge of the same, but this does not mean the petition does not state a cause of action in its present form. A pleader is required to state only the ultimate facts and it is not necessary to plead the facts or circumstances by which the ultimate facts will be established. Dalton v. Fabius River Drainage District, 238 Mo.App. 655, 184 S.W.2d 776, 784 (1945).

The judgment is reversed and the cause remanded.

MORGAN, BARDGETT, and FINCH, JJ., concur.

HOLMAN, J., dissents.

HENLEY, J., dissents in separate dissenting opinion filed.

DONNELLY, J., dissents in separate dissenting opinion filed.

HENLEY, Judge

(dissenting).

I respectfully dissent. Plaintiffs petition, alleging as it does that defendant “kept a loaded shotgun as protection [for herself and her home] from Joyner,” negates any possible inference that Joyner was a guest she brought into her home, a guest invited in violation of her duty to exercise due care to avoid subjecting others to the danger she knew Joyner’s presence would present.

The only inference the quoted portion of the petition supports is that Joyner was an unexpected trespasser; not a guest. I say that because it is contrary to all experience that defendant would invite into her home a person against whom she saw fit to protect it with a shotgun.

I would hold that the petition fails to state a claim upon which relief may be granted.

DONNELLY, Judge

(dissenting).

In my opinion, the answer to the problem presented in this case lies in 2 Restatement, Law of Torts, Second, § 302 B. It reads as follows:

“§ 302 B. Risk of Intentional or Criminal Conduct
“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”

I would adopt the rule of liability stated in § 302 B, supra, and would reverse and remand the cause to permit plaintiff to seek recovery under said section. Zimmerman v. Associates Discount Corporation, 444 S.W.2d 396 (Mo.banc 1969).

I respectfully dissent.

      . Plaintiff appealed from the final judgment dismissing his petition against defendant Betty Hillis. Plaintiff obtained a $250,000 default judgment against the other defendant, Joyner, who did not appeal.

      . We also use other portions of the court of appeals opinion later herein, without quotation marks.


author: TITUS, Judge.

text:
    Clifford SHIPTON and Violet Shipton, his wife, Plaintiffs-Appellants, v. Michael L. SHERIDAN and Maureen H. Sheridan, his wife, Defendants-Respondents.
    No. 9828.
    Missouri Court of Appeals, Springfield District.
    Dec. 15, 1975.
    Ted M. Henson, Jr., Poplar Bluff, for plaintiffs-appellants.
    L. Dwayne Hackworth, Piedmont, for defendants-respondents.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Plaintiffs instituted suit to quiet title to 38/io acres (hereinafter the “school lot”) situate in the NE ¼ NW ¼ Section 13 Township 27 Range 5 in Wayne County. Defendants answered denying plaintiffs’ claim to ownership and averred they owned the school lot by virtue of a deed from Willa Sheridan Burns as surviving spouse of Earl Sheridan. Sans a jury and without making findings of fact or conclusions of law, the trial court “ordered, decreed and adjudged that the issues be found for the defendants and against the plaintiffs and that plaintiffs [sic] Petition is dismissed.” Plaintiffs appealed.

In 1918 John and Clara Sheridan, husband and wife, became the owners of the NW Vi Section 13 Township 27 Range 5 (hereinafter the “northwest quarter”). In 1928 they conveyed the school lot to School District No. 54 a/k/a the Cool Spring School. The warranty deed, inter alia, stated: “. . . when the said [school district] quits using said above described real estate for school purposes such as a school house site and play grounds, then and in that event, said above described real estate shall revert to and become the property of the then owner of the farm from which said real estate was deeded to said School District at the time of said reversion.” The parties have assumed that the school lot, upon termination of the fee simple determinable created by the deed [Nowlin v. Columbia School District, 401 S.W.2d 894, 398[2] (Mo. 1966)], was to pass to the then owners of the northwest quarter.

The record before us leaves much to be desired as to the identity and viability of the persons involved. Clara Sheridan died intestate in 1952. We can only presume that John predeceased her and that Claude, Paul and Earl Sheridan were the only sons and living heirs of John and Clara Sheridan in 1955 when the next described conveyance was made.

Claude and Paul Sheridan, “as heirs at law of Clara Sheridan, deceased,” and their wives in March 1955 conveyed to Earl and Willa Sheridan, husband and wife, “an undivided two-thirds interest” in the northwest quarter “Except School Lot . heretofore deeded off.” By a June 1965 warranty deed, Earl and Willa Sheridan conveyed the northwest quarter to plaintiffs “EXCEPT School Lot . . . heretofore deeded off.”

The deed on which defendants relied in their answer filed December 17,1973, was a 1972 quit claim deed given them by “Willa Mae Sheridan Burns” to “Pt. NW ¼ [sic] NW ¼ School Ground Section lot 13 Township 27 Range 5 2.80 acres Index 2629.” As can be seen, if this was an effort on the part of Willa to quit claim her interest in the school lot to defendants, the description was defective. Upon discovery of the defect, defendants before trial of the present case obtained a 1974 quit claim deed from Willa, “widow of Earl William Sheridan,” to the school lot as it was described in the 1928 deed.

Both sides in this case proceeded on the assumption that the quoted clause appearing in the 1928 deed engrafted upon the estate conveyed to the school district a possible reversionary interest in whoever might be the owner of the northwest quarter when the school district quit using the school lot “for school purposes such as a school house site and play grounds,” and that this “possibility of reverter” was assignable. Moreover, all the parties seemed to agree that when Claude and Paul Sheridan in March 1955 conveyed their two-thirds interest in the northwest quarter to Earl and Willa Sheridan, the entire “reversion” was thereby assigned to Earl and Willa because they were the then owners of the northwest quarter — in spite of the fact that the deed expressly excepted the school lot. From this point, plaintiffs insisted that since the event stated in the 1928 deed to effect the “reversion” had not occurred by June 1965 when Earl and Willa conveyed the northwest quarter to plaintiffs, plaintiffs, as the owners of the northwest quarter when the event did subsequently occur, became vested with the “reversionary interest.” On the other hand, defendants asseverated that the event stated in the 1928 deed occurred before Earl and Willa conveyed to plaintiffs, thereby then and there vesting Earl and Willa, as tenants by the entirety, with the “reversionary interest” when it came into esse and that Earl and Willa did not thereafter convey or assign this interest to plaintiffs because the June 1965 deed to plaintiffs expressly excepted the school lot. This being so, defendants argued, Willa succeeded to all of the “rever-sionary interest” when Earl died and effectively assigned that interest to defendants by her quit claim deed in 1974.

In our view all concerned have misconceived the proper issues and the law applicable to the facts presented. A major portion of the parties’ briefs on appeal, and much of the evidence adduced at trial, is and was intended to establish on what particular date the grantee school district, or its successor, quit using the school site “for school purposes such as a school house site and play grounds.” Although the parties concede the school district has, in fact, quit using the school lot for the purposes stated, our understanding of the law makes it unnecessary that we ascertain the day this occurred; also, we find it unnecessary to determine whether possibilities of reverter are devisable, alienable or assignable in Missouri.

Both the March 1955 conveyance by Claude and Paul to Earl and Willa and the June 1965 conveyance by Earl and Willa to the plaintiffs excepted the school lot from the transfer of the northwest quarter. “We must determine [the grantors’] intention from the deed[s] [themselves] . and give effect thereto unless it conflicts with some positive rule of law. . We find, in [the] [deed from Claude and Paul to Earl and Willa and in the deed from Earl and Willa to plaintiffs], no intention on [the grantors’ part] to convey [their] possibility of reverter in the schoolhouse tract [i. e., the school lot]. In the description[s] of the [northwest quarter] conveyed by the warranty deed[s], [the grantors] expressly ‘excepted’ . . . [the school lot theretofore deeded off]; and [grantors] did not expressly convey to [grantees] any interest in the land thus excluded. There are no inconsistencies in the language. It is clear and unambiguous. The language negatives any intention by [the grantors] to convey to [the grantees] any interest in the tract which [John and Clara Sheridan] had previously conveyed in fee simple determinable to the school district. . . .We hold that [grantors] did not intend to convey any title to or estate in [the school lot] to [their] grantee[s].” Smith v. School Dist. No. 6 of Jefferson County, 250 S.W.2d 795, 797[3, 4] (Mo.1952). Thus, Claude and Paul Sheridan did not convey to Earl and Willa Sheridan any of their interest in the possibility of reverter in the school lot. Neither did Earl and Willa convey to plaintiffs any interest in the possibility of reverter in the school lot, and defendants obtained no title to or interest in the school lot by either the 1972 or 1974 quit claim deed from Willa if they are predicating her source of title (and thus theirs) on the March 1955 deed from Claude and Paul. From the sparse record before us we cannot tell if Willa has ever possessed any interest in the possibility of reverter in the school lot by reason of being the widow of Earl or, if so, what percentage of the possibility she may have possessed which could have been quit claimed to the defendants. If the decree nisi intended to enounce that defendants had title to the school lot, it was plainly erroneous on the record before us.

It seems clear from the 1928 deed that the grantors, John and Clara Sheridan, in-. tended that upon termination of the determinable fee, the school lot was to pass to the then owners of the northwest quarter if that be “the farm from which said real estate was deeded to said School District.” ‘“A limitation over, in a deed creating a determinable fee which shall cease if the land ceases to be used for a specified purpose, is void for remoteness’ ... of vesting (the rule against perpetuities) and the possibility of reverter remained in the grantor[s]” [Donehue v. Nilges, 364 Mo. 705, 710-711, 266 S.W.2d 553, 555-556[5], 45 A.L.R.2d 1150, 1153-1154 (1954)] or passed to their heirs. Smith v. School Dist. No. 6 of Jefferson County, supra, 250 S.W.2d at 797[5], From what has been said, it follows that when the school district’s fee terminated, the fee simple estate in the school lot automatically passed to and vested in the heirs of John and Clara Sheridan and that upon the record, neither plaintiffs nor defendants have proved any interest in or title to the school lot.

The judgment is reversed and the cause is remanded with directions to the trial court to enter proper .judgment in accordance with the conclusions expressed in this opinion.

All concur.


text:
    STATE of Missouri, Respondent, v. William Marvin WORL, Appellant.
    No. 9775.
    Missouri Court of Appeals, Springfield District.
    Dec. 15, 1975.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Bruce W. Simon, Kansas City, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendant was convicted by a Hickory County jury of having possessed firearms while intoxicated, but could not agree upon punishment. § 564.610. After defendant’s timely motion for a new trial was argued and overruled, the trial court on December 19, 1973, per Rules 27.03 and 27.09, granted allocution, rendered judgment and pronounced a sentence of imprisonment of 3 years.

On the eighth day after judgment, i. e., December 27, 1973, the clerk of the trial court received from defendant a notice of appeal to the Supreme Court. Under date of March 29, 1974, the clerk wrote defendant’s counsel: “. . . some time ago I contacted you by phone to remind you that you had not paid a docket fee. ($20.00) . . The Notice of Appeal has not been sent to the Supreme Court, but will be as soon as you take care of these matters.”

The next entry in the transcript on appeal recites that “on May 10, 1974, defendant-appellant’s Notice of Appeal to the Supreme Court of Missouri was filed by the Clerk of the Circuit Court of Hickory County . . . ; that this Notice of Appeal, being dated May 10, 1974,” etc. (Our emphasis). Under date of May 14, 1975 [1974?], the Clerk of the Supreme Court returned to the clerk of the trial court the notice of appeal “and your check No. 206 in the amount of $20.00” because “The notice of appeal does not show ‘filing’ by your office, nor has your office completed the certification on the reverse side of the form.” Apparently the circuit clerk again sent the notice of appeal and the check to the Supreme Court for under date of June 8, 1974, the Clerk of the Supreme Court once more returned the notice and check to the trial court.

Following the foregoing, the transcript on appeal states: “Thereafter, on June 26, 1974, Notice of Appeal to the Missouri Court of Appeals, Springfield District, dated June 24, 1974, was filed with the Circuit Clerk of Hickory County.” This notice of appeal, together with the $20.00 docket fee, was received and filed in this court on June 28, 1974.

There is nothing in the transcript or record of this court tending to show that any of the notices of appeal were filed pursuant to a special order of this court as authorized by Rule 28.07. We are advised that the Supreme Court has likewise not made such a special order, and, of course, the time for doing so has long since expired.

Rule 28.03 provides: “After the rendition of final judgment in any criminal case, the defendant shall be entitled to take an appeal as provided in these Rules. An appeal shall be taken by filing a notice of appeal in the same manner and within the same time after final judgment as provided for civil cases.” Rule 81.04 states: “No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.”

The first purported notice of appeal was received by the clerk of the trial court eight days after the judgment had been entered and sentence pronounced on December 19, 1973. However, the docket fee was not then deposited with the clerk of the trial court and had not been deposited for three months thereafter when the circuit clerk wrote the letter of March 29, 1974. Until the docket fee has been paid or waived, there can be no valid filing of a notice of appeal. Application of Holt, 518 S.W.2d 451, 453[3] (Mo.App.1975). “This notice of appeal was not timely filed because the docket fee, without which the notice of appeal is ineffective, was not deposited with the circuit clerk within ten days after the [judgment] became final; therefore we do not have jurisdiction of the appeal.” State v. Brookshire, 400 S.W.2d 61, 63[2] (Mo.1966).

The notices of appeal dated May 10,1974, and June 26, 1974, were clearly out of time and completely abortive.

The appeal is dismissed.

All concur.

      . References to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Criminal and Civil Procedure, V.A.M.R.


author: COOPER, Justice.

text:
    Beverly O’NEAL, Appellant, v. DeKALB COUNTY, Tennessee, et al., Appellees.
    Supreme Court of Tennessee.
    Dec. 15, 1975.
    Richard H. Winningham, Chattanooga, for appellant.
    McAllen Foutch, Smithville, for appellees.
   OPINION

COOPER, Justice.

This is an action for false arrest, false imprisonment, battery, and outrageous conduct brought by plaintiff in the Circuit Court of Hamilton County. The case was heard on motions to dismiss filed by each defendant under rule 12.02 of the Tennessee Rules of Civil Procedure. The circuit court entered an order dismissing plaintiffs suit as to all defendants. Plaintiff appeals from that order.

Plaintiff’s complaint alleges that on November 19, 1974, defendant Johnny Cripps, Deputy Sheriff of DeKalb County, arrested plaintiff, a resident of Hamilton County, in Hamilton County under an arrest warrant issued for another named party. The complaint further alleges that Deputy Cripps acted under color of office and in the course and scope of his employment with defendant Crestón Bain, Sheriff of DeKalb County, and that defendant Aetna Life and Casualty Insurance Company was at all times material to this case surety upon the personal bonds of defendants, Bain and Cripps, for any wrongs, injuries, loss, damages, acts, or omissions committed by Deputy Cripps.

The trial court sustained the defendant sheriff’s motion to dismiss on the authority of Tennessee Code Annotated Section 8-832, which provides:

“No sheriff, whether elected or appointed, nor any surety on his bonds, shall be liable for any wrongs, injuries, losses, damages or expenses incurred as a result of any act or failure to act on the part of any deputy appointed by said sheriff, whether said deputy is acting by virtue of office, under color of office or otherwise.”

The allegation of liability of the sheriff in this case, being predicated solely on acts of a deputy appointed by the sheriff, is without foundation in law and stands properly dismissed under the above statute.

In sustaining the motion to dismiss filed by defendant Aetna Life and Casualty Insurance Company, the trial court relied on Tennessee Code Annotated Section 56-1412. That section provides that an action against a surety company may be brought in the county in which the bond was made or guaranteed or in the county in which the principal office of the surety company is located. Section 56-1412 further provides that . . for the purposes of this chapter, . . . [the] bond shall be treated as made or guaranteed in the county in which the office is located, to which it is returnable or in which it is filed; or in the county in which the principal in [the] bond . . . resided when it was made or guaranteed.” Aetna is a foreign corporation, having its principal office in Hartford, Connecticut. In Burns v. Duncan, 23 Tenn.App. 374, 133 S.W.2d 1000 (1939), the Court of Appeals held that the venue provision of Section 56-1412 is mandatory and that venue in an action against a foreign corporation, as surety on a county official’s bond, is “exclusively in the county where the bond ‘was made’.” In Keefe v. Atkins, 199 Tenn. 183, 285 S.W.2d 338 (1955), this court specifically approved the Burns holding. DeKalb County is the official residence of the principals on the bonds, Sheriff Bain and Deputy Cripps, it is the county in which the bonds were required to be filed and is the county in which the bonds were made. Venue of the action against Aetna then lies in DeKalb County and the trial court properly dismissed the action against Aetna.

The trial court sustained the motion to dismiss filed by defendant DeKalb County on the basis of the common-law rule that venue in actions against counties and municipalities lies exclusively in the county which is the situs of the defendant governmental entity. See Nashville v. Webb, 114 Tenn. 432, 85 S.W. 805 (1904). Plaintiff argues that this common-law rule has been changed by statute in Tennessee. Specifically, plaintiff insists that Tennessee Code Annotated Sections 8-833 and 20-401 support the proposition that venue in this action is properly in Hamilton County where the cause of action arose. Section 8-833 provides as follows:

“Anyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; provided that the deputy is, at the time of such occurrence, acting by virtue of, or under color of his office.”

Section 20 — 401 provides in pertinent part as follows:

“In all civil actions of a transitory nature, unless venue is otherwise expressly provided for, the action may be brought in the county where the cause of action arose or in the county where defendant resides or is found. . . . ” (Emphasis added.)

Plaintiff argues that since her complaint alleges a transitory cause of action (false arrest, false imprisonment, battery, and outrageous conduct) and since a specific venue provision is not included in section 8-833, the general venue provisions of section 20-401 allow this suit to be brought in Hamilton County where the cause of action arose.

We cannot accept this argument since the failure to include a specific venue provision in section 8-833 does not necessarily indicate a legislative intent to depart from the common-law rule that counties and municipalities may be sued only in the county of their situs regardless of the nature of the cause of action. Section 8-833 sanctions suits against counties for the misconduct of deputies represents a waiver of governmental immunity. See Tennessee Code Annotated Section 8-834. Thus, section 8-833 is analogous to the more comprehensive provisions of the Governmental Tort Liability Act, Tennessee Code Annotated Sections 23-3301 to 3331. In actions brought pursuant to that act, venue lies exclusively in the county which is the situs of the defendant governmental entity. Tennessee Code Annotated Section 23-3320. This provision represents the legislature’s specific adoption of the common-law rule of venue with respect to a county or a municipality. To accept plaintiff’s argument would thus establish two separate venue rules applicable to actions brought against counties. In actions for the misconduct of deputies under section 8-833, the application of the general venue provisions of section 20 — 401 would allow proper venue in any county in which the cause of action arises or where defendant resides or is found. On the other hand, in actions for negligence brought under the provisions of the Governmental Tort Liability Act, section 23-3320 would fix venue exclusively in the defendant county. We do not discern any significant distinction between the two types of actions which warrants the application of different rules of venue.

While we recognize that the rule localizing suits against a county is judicial rather than legislative in origin, the legislature has now adopted that rule in actions against a county from which the Governmental Tort Liability Act has removed the defense of governmental immunity. Accordingly, we are constrained to avoid a construction of Tennessee Code Annotated Section 8-833, itself a limited revocation of governmental immunity, which would result in the application of inconsistent rules of venue in actions brought against a county. We hold therefore that in suits against a county for the misconduct of deputies under Tennessee Code Annotated Section 8-833 the common-law rule applies to fix venue exclusively in the situs of the defendant county. We therefore affirm the trial court’s dismissal as to defendant DeKalb County on the ground of improper venue.

Finally, in sustaining defendant Deputy Cripp’s motion to dismiss, the trial court relied on the provision of Tennessee Code Annotated Section 6-640 requiring counties to provide defense counsel and to indemnify a sheriff or deputy from any judgment rendered against him in a suit for damages arising out of the performance of his official duties. This provision makes the county the real party in interest and the trial court reasoned that the action against defendant Cripps was thus localized and could be brought only in DeKalb County where Cripps is employed as a deputy sheriff. We agree. See Keefe v. Atkins, 199 Tenn. 183, 285 S.W.2d 338 (1955); Burns v. Duncan, 23 Tenn.App. 374, 133 S.W.2d 1000 (1939).

Judgment affirmed. Costs are adjudged against the appellant, Beverly O’Neal.

FONES, C. J., HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.


author: HARBISON, Justice. HENRY, Justice

text:
    TENNESSEE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION et al., Appellants, v. Lowell Paul HUGHES, Appellee.
    Supreme Court of Tennessee.
    Dec. 30, 1975.
    C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, for appellants; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Angus Gillis, III, Haynes & Smith, Nashville, for appellee.
   OPINION

HARBISON, Justice.

This case is before the Court upon interlocutory appeal by two state agencies or instrumentalities, seeking review of an order of the trial court which overruled their motion to dismiss.

The action was instituted as a common-law claim for damages. Appellee, plaintiff below, alleged that he was shot by one Johnnie Michael Duck, a named defendant below who is not involved in this appeal. The complaint alleged that Duck had either escaped from or had been released from the Central State Psychiatric Hospital, where he was being detained after having entered a guilty plea on a murder charge. It was alleged that the Central State Psychiatric Hospital and the Tennessee Department of Mental Health and Retardation were liable for negligence of state employees in permitting the escape or discharge of this criminally insane individual. The superintendent of the hospital and the State Commissioner of Mental Health and Retardation were named as defendants in their official capacities.

All defendants except Duck filed a motion to dismiss, predicated upon the principle of the sovereign immunity of the State. The trial court sustained the motion as to the individual defendants, and no appeal was taken from that action. The trial judge, however, overruled the motion as to the hospital and the department, upon the ground that the Tennessee Governmental Tort Liability Act, T.C.A. § 23-3301 et seq., applied to these defendants and operated to remove their immunities as agencies of the state government. The trial judge certified this ruling as representing a controlling question in the case, pursuant to the provisions of T.C.A. § 27-305, and permitted a discretionary appeal to this Court.

The single assignment of error filed on behalf of the department and of the hospital is to the effect that the Governmental Tort Liability Act has no application to the state government or its agencies and departments, and only applies to municipal, county or other local governments. We are of the opinion that this contention is well taken, and that the trial court was in error in holding that instrumentalities of the state government, as contrasted with local governmental entities, are subject to the terms and provisions of the Act.

While there is broad language defining “governmental entity” in T.C.A. § 23-3302(1), the entire statute has to be read in context, and it is clear from reading the entire Act that the references therein are to local governmental entities, their agencies and employees. While we think that the Act is sufficiently clear in this regard as not to require the use of extrinsic aids in interpretation, nevertheless if there should be sufficient doubt on the point to justify a finding that the statute is ambiguous, the legislative debates in connection with the passage of the Act make it clear that the intention of the General Assembly was to deal with the question of governmental immunity only at the county, municipal or other local level, and not at the state level.

Although other matters are mentioned in the briefs filed in this Court, the sole issue presented to the trial court, and the sole contention made there as to the right of plaintiff to maintain the action against the state agencies, rested upon T.C.A. § 23-3302(1). The only issue certified to this Court for determination as a controlling question on the interlocutory appeal was whether the state agencies involved were subject to suit by reason of this statute. Since we have concluded that they are not, we hold that the trial court was in error in its ruling, and we remand the case to the trial court for further proceedings consistent with this opinion.

We feel it important to state that while T.C.A. § 27-305, permitting interlocutory appeals, is a salutary procedural statute, its use can lead to the fragmentation of appeals and substantial delay in the final disposition of cases in the trial court. As a rule of practice, henceforth this Court will require that when a question is certified here for review on interlocutory appeal, the exact and precise question sought to be reviewed must be stated in the order granting the appeal; otherwise this Court will decline to accept the appeal, absent most extraordinary and compelling circumstances.

The reason for this requirement should be apparent. In the present case, the appellee urges the Court to make a broad policy statement on the matter of the sovereign immunity of the State. This issue is simply not before the Court, by cross-appeal, assignment of error, or otherwise. When dealing with an interlocutory appeal, the Court can and will deal only with those matters clearly embraced within the question certified to it. Otherwise serious injustice to some of the parties could result, particularly in a situation such as this, where a motion to dismiss has been overruled in the trial court. We now direct that the motion to dismiss be sustained upon the issue certified here. Nevertheless, a plaintiff, when a motion to dismiss has been sustained, is ordinarily entitled to amend, if in good conscience and within the applicable rules of law, he may do so. Whether counsel for appellee will or not seek to amend his complaint in light of the ruling which we have made today, we, of course, cannot know. Since amendments to pleadings are ordinarily made in the trial courts, rather than the appellate courts, we remand the case for such further proceedings as may be necessary or appropriate.

Costs of the appeal are taxed to appellee.

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

HENRY, J., filed a concurring opinion.

HENRY, Justice

(concurring).

I concur in the conclusion reached in the majority opinion because this appeal presents the narrow and limited question of the application of the Tennessee Governmental Tort Liability Act to the State of Tennessee, its agencies and departments. I agree that it does not apply.

My concurrence, however, is prompted by the fact that § 23-3302 T.C.A., containing definitions, is somewhat ambiguous. Reference to the legislative debates clears up the ambiguity and leaves no doubt that this legislation embraces only cities, counties, and other subordinate governments.

If I accepted the spurious “arm of the state” theory of governmental immunity, consistency of approach would demand a different conclusion. See dissenting opinion, Cooper v. Rutherford County, 531 S.W.2d 783 (Tenn.1975). This necessarily follows from the fact that the “arm of the state” theory proceeds upon the assumption that cities and counties are “political subdivisions” of the state, and, hence, the state’s immunity trickles down to them, while acting in their governmental capacity. Under this theory, § 23-3302 T.C.A. would encompass all “political subdivisions” of the state, to include agencies and departments thereof, and the Tennessee Governmental Tort Liability Act would be applicable also to the State. This follows from the fact that the statute would be facially unambiguous and there could be no resort to the legislative debates. H. Wetter Manufacturing Co. v. United States, 458 F.2d 1033 (6th Cir. 1972).

But I do not accept the specious “arm of the state” argument and, therefore, concur in the results reached by the majority without being in full agreement with their reasoning.

I emphasize that this appeal does not fairly raise the issue of the sovereign immunity of the state. There is no necessity for this Court to address the meaning of the constitutional declaration that

Suits may be brought against the state .

Nor is it necessary or appropriate to comment upon the constitutionality of § 20-1702 T.C.A. or any other statutory enactment in derogation of Article 1, Section 17 of the Constitution of Tennessee.


author: GODDARD, Judge.

text:
    FAIRMOUNT PRESBYTERIAN CHURCH, INC., Appellant, v. The PRESBYTERY OF HOLSTON OF the PRESBYTERIAN CHURCH OF the UNITED STATES of America and Thomas C. Rhea, Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    June 3, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      James Lynn Price, Wendal D. Jackson, Bristol, for appellant.
    J. Paul Johnson, Bristol, for appellees.
   OPINION

GODDARD, Judge.

This appeal involves the right to possess and use certain church property.

The Fairmount Presbyterian Church was organized in 1948 by and in the Holston Presbytery of the Presbyterian Church in the United States. In 1961 it was chartered under the laws of the State of Tennessee as the Fairmount Presbyterian Church, Inc., a corporation not for profit. The purpose clause of the Charter of the corporation reads:

The purpose of this corporation shall be the support of public worship, the building and maintenance of churches, parsonages, schools, hospitals, chapels, and such other religious, educational, or benevolent institutions as may be necessary or proper to the work of missionary bodies in the United States, or in any foreign country, and the maintenance of all missionary undertakings, ⅛ accord with the Standards of The Presbyterian Church in the United States. (Emphasis supplied.)

All but one tract of land involved was originally conveyed to trustees of Fair-mount Presbyterian Church and thereafter by the trustees to the corporation. The other tract was conveyed directly to the corporation. All of the deeds, both to the trustees and to the corporation, are warranty deeds with the usual covenants and warranties. None of the deeds contains any trust provisions.

During 1973 a portion of the membership of the church (the total of which constitutes the membership of the corporation, a status substantially equivalent to stockholders in a corporation for profit) became dissatisfied with some of the doctrinal positions of the General Assembly of the Presbyterian Church in the United States. On March 15, 1973, by a unanimous vote of the Session of the Fairmount Church, a congregational meeting was called for April 1, 1973, to act on a resolution withdrawing from the Presbyterian Church in the United States. Notice to the membership was duly given and the meeting was held as scheduled. The active membership totaled 348, of which 207 were present at the congregational meeting. One hundred thirty-eight voted for the resolution, 44 voted against, and 25 abstained. Following the meeting, the minister of the church gave notice to the Presbytery of the church’s (and his) intention to withdraw from the Presbyterian Church in the United States and join another Presbyterian denomination.

On May 23, 1973, the Holston Presbytery reviewed the action taken at Fairmount’s congregational meeting and declared the action taken to be illegal, unconstitutional, null and void. In summary pertinent hereto the Presbytery:

A. Withdrew from Joseph C. Morecraft (the minister at Fairmount) all authority to exercise the office of Minister of the Word, and dissolved his pastoral relationship with the Fairmount Presbyterian Church and his official relationship with said congregation;
B. Declared that the action of the Session of Fairmount Presbyterian Church in calling the so-called congregational meeting on April 1, 1973, for the purpose of voting on a resolution to withdraw, was unconstitutional;
C. Held that the meeting of Fairmount Presbyterian Church congregation on April 1, 1973, was no true meeting of the congregation and that the action of Fair-mount Presbyterian Church on April 1, 1973, in declaring itself to be an independent Presbyterian Church was unconstitutional and therefore null and void under the provisions of Presbyterian Law;
D.Advised the Reverend Joseph C. Morecraft, III and the Fairmount Presbyterian Church of the action taken by the Holston Presbytery.

The Fairmount Church had a right to appeal the Presbytery’s decision to the Appalachian Synod, but did not do so. Instead, the Church (without a vote of authorization of the membership or directors) brought a declaratory judgment action in Chancery Court. It asked that its title to the property be quieted and that the Hol-ston Presbytery be permanently enjoined from interfering with property owned by Fairmount Church.

The Chancellor granted a restraining order and held hearings on the merits of the case on February 11 and June 18,1974. He issued a memorandum opinion and, for a number of reasons, found that the minority of the congregation was entitled to the use of the property which would still be part of the Presbyterian Church in the United States.

In our approach to the disposition of this case, we are keenly aware of the provisions of the First Amendment to the Constitution of the United States as well as of the equally ringing prohibitions of Section 3, Article I of our own Constitution:

Sec. 3. Freedom of worship. — That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship.

The Supreme Court of the United States has long recognized the authority of secular courts to determine questions involving disposition of church property. A landmark case, Watson v. Jones, 13 Wall. 679, 80 U.S. 679, 20 L.Ed. 666 (1872), was decided shortly after what is referred to quaintly in the opinion as “the war of the insurrection,” which rent churches as well as the nation. In that case a dispute arose between a local Presbyterian Church and its Presbytery. In recognizing the court’s authority to deal with the question of church property, Mr. Justice Miller, quoting with approval from a prior case, said:

We have already cited the case of Shannon v. Frost, 3 B.Mon. [Ky.] 253, in which the appellate court of the state, where this controversy originated, sustains the proposition clearly and fully. “This court,” says the Chief Justice, “having no ecclesiastical jurisdiction, cannot revise or question ordinary acts of church discipline. Our only judicial power in the case arises from the conflicting claims of the parties to the church property and the use of it.”

Watson is heavily relied upon by the Defendants. It lays down the rule that the courts must accept the decision of the highest church authority to which a dispute has been appealed, even when the dispute involves church property. In the case at bar, the Holston Presbytery determined the question adversely and no appeal was made from the ruling. Therefore, the Defendants assert, this Court must accept the decision as final.

The most recent United States Supreme Court case involving this question is Presbyterian Church In the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al., 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). This case, in our view, casts doubt on the soundness of Defendants’ position. In Hull, two Georgia Presbyterian churches attempted to withdraw from the Presbytery, which established an Administrative Commission to seek a conciliation. The sought-for conciliation did not materialize and consequently the Commission, presumably acting for the Presbytery, acknowledged withdrawal of the local leadership and proceeded to take over the local church’s property on behalf of the general church. No effort was made by the local church to appeal the Commission’s action. With regard to connectional churches, Georgia law implied a trust of local church property for the benefit of the general church with the further provision that upon a substantial departure by the general church from the doctrine in force at the time the local church became affiliated, the implied trust ceases to be effective and the local church may withdraw and retain its property. The issue of departure from the doctrine was submitted by the Georgia trial court to a jury, which found in favor of the local church. A writ of certiorari was granted by the Supreme Court of the United States to the Supreme Court of Georgia, which had affirmed the trial court.

The United States Supreme Court found that the Georgia court could not constitutionally concern itself with church doctrine and that a decision based on such a determination was unconstitutional.

The Court in Hull, while citing Watson, nevertheless took up the question of ownership of the church property. It reversed the case for determination of the question on “neutral principles of law” equally applicable to church and non-church litigants:

Thus, the First Amendment severely circumscribes the rule that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without “establishing” churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, School District of Township of Abington, Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

Upon remand, the Georgia Supreme Court found that because the departure from the doctrine provision'was constitutionally impermissible, the entire theory of implied trust must also fail and as there were no trust provisions in the deeds conveying the property, it was owned by the majority of the local church. Presbyterian Church In the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969).

This Court was faced with a similar problem in The Cumberland Presbyterian Church v. North Red Bank Cumberland Presbyterian Church, 58 Tenn.App. 424, 430 S.W.2d 879 (1968), which was decided prior to Hull. The factual situation in North Red Bank is somewhat different from the case at bar. In that case, although the property was also conveyed without trust provisions, it was held by trustees rather than a corporation. The congregation voted unanimously to withdraw from the Cumberland Presbyterian Church with which it had been affiliated. At the direction of the Supreme Court on a prior appeal, the Constitution, Minutes of the General Assembly, and the Digest of the church were introduced in evidence in the Chancery Court. This Court found language in the Digest regarding the Presbytery holding property in trust upon the dissolution of the local congregation. Thereupon, it was found, in view of the language of the Digest, that a trust was indicated. Although the decision rested on a construction of the Digest of the church, which might be suspect under Hull, we believe the language used is persuasive and compelling:

The existence of such a trust seems clearly indicated. The membership of churches can not be expected to remain constant. Old members die or leave the church and new members are constantly being added to the rolls. Persons who contributed to the purchase of the Mission property and caused it to be transferred to the Red Bank Church as a Cumberland Presbyterian Church, as well as those who have contributed to the substantial sums going into improvements later made, had every reason to expect their donations to remain under the government of the Cumberland Presbyterian Church and be used for the advancement of its faith and doctrine. The congregation as constituted at the time of withdrawal now seeks to remove the property from the control of the Cumberland Presbyterian Church and establish a free and independent church. While they may espouse the same doctrine and beliefs, it is difficult if not impossible to disassociate doctrine from government or determine where the one ends and the other begins. Nor can there be any assurance that without supervision and control by a higher church authority these doctrines and beliefs will continue to be held by the congregation.

It is our opinion the Plaintiff’s charter clearly implies that the purpose of the corporation is to be a local church of the Presbyterian Church in the United States and, consequently, upon property being conveyed to the corporation, an implied trust arose in favor of the general church. In our view, this disposition does not offend the provisions of either the Constitution of the United States or of this State. We are attempting, and believe we have applied, “neutral principles of law” in arriving at our decision. Should a corporation, for example, be chartered for the purpose of promoting the interest of boys, in accord with the standards of the Boy Scouts of America, an implied trust would preclude the property from being diverted to the use of Boys’ Clubs or Girl Scouts, or any other organization.

We prefer to rest our decision on the theory of implied trust (a “neutral principle of law”) under the authority of North Red Bank, rather than the holding of Watson. We think this is appropriate because, as is noted in Hull, Watson is a pre-Erie Railroad v. Tompkins case, wherein federal courts were applying general law. We also note that when Watson was decided, the First Amendment freedom of religion guarantees had not been made applicable to the states by virtue of the Fourteenth Amendment. Still further, it appears to us that had Watson retained its full force and vigor as insisted by Defendants, it would have been dispositive of Hull, notwithstanding the constitutionally impermissible intrusion of the Georgia court in the area of church doctrine.

We have reviewed the persuasive authority of the sister states cited by the Defendants and note that all except one were decided prior to Hull. For this reason, we are content to rest our decision on the authorities herein cited.

Accordingly, the assignments of error are overruled and the Chancellor affirmed. The costs of the appeal will be taxed to the Plaintiff and the sureties on the appeal bond.

SANDERS, J., and W. I. DAVIS, Jr., Special Judge, concur.

      . The Presbyterian Church in the United States is a connectional or hierarchical church, as distinguished from a congregational one. Each local congregation is gov-emed by a group of elders known as the Session. The local churches are grouped into Presbyteries (the Holston Presbytery being the one of which the Fairmount Church was a part). These are grouped into Synods (the Appalachian Synod in this case) which are presided over by the General Assembly of the church. These governing bodies all have both legislative and judicial .'unctions.