author: SOMERVILLE, Judge.

text:
    STATE of Missouri ex rel. James E. VAUGHN, Relator, v. Honorable Temple H. MORGETT, Judge of the Magistrate Court, Division I, Boone County, Missouri, Respondent.
    No. KCD 27536.
    Missouri Court of Appeals, Kansas City District.
    March 31, 1975.
    Motion for Rehearing and/or Transfer Denied May 6, 1975.

      William G. Mays, II, Public Defender, Columbia, for relator.
    Milt Harper, Pros. Atty., Boone County, Columbia, for respondent.
    Before PRITCHARD, C. J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

This is an original proceeding in mandamus. James E. Vaughn, hereinafter referred to as “relator”, stands accused in Division I of the Magistrate Court of Boone County, Missouri, by verified complaints made and filed by the prosecuting attorney of Boone County, Missouri, with having committed multiple felonies. Prior to any preliminary hearing thereon, relator filed a motion for a mental examination pursuant to 552.020, RSMo 1969 (as amended, Laws of 1971), V.A.M.S. to determine whether, as a result of mental disease or defect, he “lacked mental capacity to understand the proceeding against him or to assist in his own defense”. Temple H. Morgett, Magistrate of Division I of the Magistrate Court of Boone County, Missouri, hereinafter referred to as “respondent”, refused to entertain said motion “for the stated reason that he lacked jurisdiction to order such examination”. Relator seeks a writ from this court commanding respondent to entertain and rule, one way or the other, on said motion on its merits. An alternative writ was issued and it now becomes necessary to decide whether the alternative writ should be made peremptory.

The confrontation between relator and respondent, although involving a question of first impression in this state, is tightly circumscribed. Does a magistrate at the preliminary hearing stage of a felony prosecution initiated by verified complaint have jurisdiction to inquire into an accused’s mental fitness to proceed? The answer to this question collectively lies in the Rules of Criminal Procedure, the Sixth Amendment to the Constitution of the United States, basic concepts of fundamental fairness associated with due process in criminal proceedings, and Section 552.020, supra.

Rule 23.02, V.A.M.R, explicitly states, inter alia, that “[n]o information charging the commission of a felony shall be filed against any person unless the accused shall first have been accorded the right of a preliminary examination before a magistrate in the county where the offense is alleged to have been committed” and that the accused may waive a preliminary examination only “after consultation, or after being accorded the right of consultation, with his counsel”. Rule 23.08 provides, in part, as follows: “If upon examination of the whole matter the magistrate shall determine that no felony has been committed by any person, or that there is no probable cause for charging the accused therewith, he shall discharge such accused. If it appear that a felony has been committed and that there is probable cause to believe the accused guilty, the magistrate shall hold the accused to answer in the court having jurisdiction of the offense.” (Emphasis added.) The language “upon examination of the whole matter” clearly denotes that the dual determination imposed upon a magistrate in a felony preliminary examination, (1) whether a felony has been committed and (2) if committed, whether probable cause exists to believe the accused guilty thereof, commands consideration of all the evidence presented, that of the accused as well as that of the state. This conclusion is buttressed by the fact that Rule 23.03 provides that the preliminary hearing “must be held in the presence of the accused” and additionally grants the accused the right to “cross-examine witnesses against him” and to “introduce evidence in his own behalf”. The concluding sentence of Rule 23.03, supra, mandates, so far “as is practicable”, that the preliminary examination “shall be conducted in the same manner as the trial of criminal cases in circuit courts”.

By virtue of the profoundly important nature of the determination to be made by the magistrate at the preliminary hearing stage (Rules 23.02, 23.08, supra) and the procedural safeguards surrounding an accused with respect thereto (Rule 23.-03, supra), the preliminary hearing in a felony prosecution to be initiated by information is a “critical stage” of the criminal process and an accused’s right to counsel thereat reaches constitutional proportions. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). See also Rule 23.03, supra, as amended December 7, 1970, effective July 1, 1971, and the “Official Note” thereto.

Surely the right to counsel at the preliminary hearing stage is more than a cosmetic right. But, just as surely, it would degenerate into a mere cosmetic right if an accused lacked the capacity to understand the nature of the proceeding and to consult with counsel concerning evi-dentiary aspects of the crucial determination imposed upon the examining magistrate. The right to counsel becomes meaningless “as the sound of tinkling brass” if an accused lacks mental capacity to knowingly and intelligently confer with counsel respecting the charge or charges leveled against him and to assist counsel by means of supplying information pertinent to the cross-examination of state’s witnesses and the calling of witnesses in his own behalf. Furthermore, the requirement that the preliminary examination be conducted in the “presence of the accused” (Rule 23.03, supra) constitutes nothing more than a legal facade if the accused, due to mental disease or defect, is unable to understand the proceedings or reap the benefits to be derived from consultation with counsel. For all practical purposes such an accused is not present because “in the presence of the accused” necessarily presupposes an accused who possesses mental capacity to understand the nature of the proceeding, and, as well, mental capacity to confer with and assist counsel. If this court adheres to the proposition that the preliminary hearing stage in a felony criminal proceeding is a “critical stage”, Coleman v. Alabama, supra, and Rule 23.03 supra, inability of an accused to be rationally present and effect a meaningful rapport with counsel has overtones of a denial of due process that pervades the entire felony criminal process.

Does Section 552.020, supra, proscribe inquiry by an examining magistrate at the preliminary hearing stage into an accused’s mental fitness to proceed? The statutory provisions thereof bearing on this inquiry are: “1. No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.”; and “2. Whenever any judge or magistrate has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private physicans to make a psychiatric examination of the accused or shall direct the superintendent of a facility of the division of mental diseases to have the accused so examined by one or more physicans whom the superintendent shall designate.” The first paragraph of Section 552.020, supra, neither designates a particular time for inquiring into an accused’s mental fitness to proceed nor prohibits such inquiry by an examining magistrate at the preliminary hearing stage. On the other hand, the second paragraph of Section 552.020, supra, expressly authorizes “any judge or magistrate” who has “reasonable cause to believe” that an accused “has a mental disease or defect excluding fitness to proceed” to order an examination pursuant to Section 552.020. One additional paragraph of Section 552.020, supra is of significance. Paragraph 7 thereof provides, in part, that if it be determined pursuant to Section 552.020 that “the accused lacks mental fitness to proceed, the proceedings against him shall be suspended and the court shall commit him to the custody of the director of the division of mental diseases for so long as the unfitness endures or until the charges or proceedings are disposed of according to law.” (Emphasis added.)

Only a tortured construction of the statutory language of Section 552.020, supra, done at the expense of abrogating basic constitutional rights of an accused, could dictate a holding that a magistrate lacks jurisdiction to inquire into an accused’s mental fitness to proceed at the preliminary hearing stage. The language employed in Section 552.020, supra, contains no indication that the legislature intended to limit the right to inquire into the mental fitness of an accused to proceed in a felony prosecution to the court having jurisdiction to try, convict and sentence him. To the contrary, the language employed evinces a legislative intent to vest an examining magistrate at the preliminary hearing stage with jurisdiction to inquire into an accused’s mental fitness to proceed, as well as the judge of the circuit court after a felony information has been filed.

This court, on its own initiative, has gone beyond the arguments tendered by respondent herein and considered various attendant practical ramifications. The following are but a few examples. Will inquiries into the mental fitness of an accused to proceed at the preliminary hearing stage be unduly disruptive of the widely employed practice of prosecuting felonies by information? Will such inquiries be financially burdensome ? Does the fact that such inquiries have historically been deferred until an information has been filed in the circuit court constitute a judicially sound basis for holding that examining magistrates at the preliminary hearing stage lack jurisdiction to do so? At best, these are hollow arguments. They must yield to the preservation of basic constitutional rights afforded an accused, and, as well, to the pervasive legislative intent expressed and found in Section 552.020, supra. Basic rights become a sham when convenience or unyielding adherence to a routine method of doing things takes precedence over substance. Justice is mocked if an accused, who, in fact, is mentally unfit to proceed, is effectively deprived of a meaningful and viable preliminary examination because of his mental status. The mockery is compounded if a mentally ill accused is subjected to incarceration without treatment during the interim. If an accused be both mentally unfit to proceed and innocent, justice is delayed if inquiry into his mental fitness to proceed is deferred until after he is bound over to the circuit court and an information has been filed.

On the combined basis of the Rules of Criminal Procedure cited above, the Sixth Amendment to the Constitution of the United States, basic concepts of fundamental fairness associated with due process in criminal proceedings, and Section 552.-020, supra, this court concludes that respondent is vested with jurisdiction to order a mental examination pursuant to Section 552.020, supra, to determine relator’s mental fitness to proceed at the preliminary hearing stage of the felony charges leveled against relator if he has “reasonable cause” to believe that relator has a “mental disease or defect excluding fitness to proceed”. This court pointedly emphasizes that such a conclusion in no way transgresses upon respondent’s discretionary power to determine whether or not he “has reasonable cause to believe that [relator] has a mental disease or defect excluding fitness to proceed.” Such is a discretionary matter for respondent alone to determine and this court has no right or authority to dictate how respondent shall exercise his discretion by mandamus.

The alternative writ in mandamus heretofore issued is made peremptory and respondent is ordered to exercise jurisdiction over and determine, one way or the other, whether “reasonable cause” exists to cause him to believe that relator “has a mental disease or defect excluding fitness to proceed” with a preliminary hearing on the pending felony complaints, and, if such determination be in the affirmative, to order an examination of relator pursuant to Section 552.020, supra, and to proceed further according to law.

All concur.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    Irene Hampton PHILLIPS and B. J. Boyd, as Executor of the Estate of E. T. Phillips, Appellants, v. C. N. PHILLIPS et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    Alfred T. Adams, Jr., I. Dyke Tatum, Nashville, for appellants.
    Gary J. Hodges, Erin, for appellees.
   OPINION

COOPER, Justice.

This is an action to set aside the probate of the will of Mabel May Phillips. The defendants moved for a summary judgment, pleading the seven year limitation on actions set forth in T.C.A. 32-410. The trial judge overruled the motion and certified the issue to this court pursuant to T.C.A. 27-305. The sole issue is whether the action is barred by the statute of limitations.

To set the scene and to give the chronological course of events, plaintiffs, C. N. Phillips, Mattie P. Davis, and Ellen Groves, are the brother and sisters of Mabel May Phillips, who died on May 28, 1965. The will under attack was probated in the County Court of Cheatham County on June 7, 1965. Under the terms of the will, the entire estate of Mabel May Phillips passed to E. T. Phillips, a brother of the testatrix. E. T. Phillips died testate on August 31, 1973, leaving his entire estate, including property taken under the will of Mabel May Phillips, to his wife, Irene Hampton Phillips. Plaintiff filed this action on May 9, 1974, against Irene Hampton Phillips and B. J. Boyd, as executor of the estate of E. T. Phillips, charging in substance that the probated will of Mabel May Phillips was a forgery.

According to the complaint and the affidavit filed in support thereof, upon the death of E. T. Phillips the plaintiffs made inquiry into the ownership of the property of their deceased sister, Mabel May Phillips, and learned at that time of the probate of the will now under attack. On learning of the will, they made further investigation and were informed by a handwriting expert that the signature on the will probated was not the signature of Miss Phillips but was a forgery, and that the forgery could not be detected by other than an expert. Plaintiffs further charged that the forgery was known, or should have been known to E.T. Phillips, at the time the will was probated and that E. T. Phillips practiced a fraud upon the County Court of Cheatham County and upon the plaintiffs by probating the will.

T.C.A. 32-410 provides that all actions or proceedings to set aside the probate of a will of realty or personalty, or petitions to certify such will for an issue devisavit vel non, must be brought within seven years from the entry of the order of probate of such will or be forever barred. The only exception is in favor of persons under twenty-one years of age or of unsound mind at the time the cause of action accrued, who may commence the action after removal of such disability within the time limitation for the particular cause of action, unless it exceeds three years, and in that case within three years from the removal of such disability. T.C.A. sections 32-410 and 28-107. No exception is made where the probate of a will is sought to be set aside on the ground that the will is not the true will of the testatrix, with the allegation being that the will was a result of either fraud or forgery as is charged in this case.

The present action was filed more than seven years after the will of Mabel May Phillips was probated. Further, the record shows that none of the plaintiffs comes within the exception stated in T.C.A. 32-410 as each was of sound mind and was more than twenty-one years of age when the will was probated. The question is do they come within an exception implicit in T.C.A. 32-410?

In considering general statutes of limitation, this court has recognized an exception not voiced in the statutes and which tolls the statute where, due to fraudulent concealment, a plaintiff is unaware of his cause of action. Woodfolk v. Marley, 98 Tenn. 467, 40 S.W. 479; Porter’s Lessee v. Cocke, 7 Tenn. 30; Shelby’s Heirs v. Shelby, 3 Tenn. 179. However, while fraudulent concealment of a cause of action will toll a general statute of limitations, fraud in and of itself will not.

“It is not the fraud, but its concealment by the party perpetrating it, unmixed with fault or negligence on the part of him who complains, which works this result.” Woodfolk v. Marley, 98 Tenn. 467, 471, 40 S.W. 479, 480 (1896).

We know of no basic reason why the fraudulent concealment exception should not be applicable to the special statuté of limitations voiced in T.C.A. 32-410. However, in this case no facts are alleged which would support a finding of fraudulent concealment. To the contrary, the record shows there was no concealment of the will of Mabel May Phillips or of the signature on the will. The will was of public record for more than nine years before plaintiffs filed this action. Being of public record, the will was available at all times for examination by the plaintiffs or any handwriting expert chosen by them. The plaintiffs, however, elected not to make inquiry into the authenticity of the will until after the death of their brother, E. T. Phillips, who was the principal beneficiary of the will of Mabel May Phillips. By then, the seven year limitation on the bringing of actions to set aside the probate of a will had passed and plaintiffs’ action was barred.

The decree of the trial judge is reversed and the action is dismissed. Costs incident to the appeal are adjudged against the plaintiffs, C. N. Phillips, Mattie P. Davis, and Ellen Groves, and their surety.

HENRY, HARBISON and BROCK, JJ., and LEECH, Special Justice, concur.


author: HARBISON, Justice.

text:
    Ernest GRIGGS et al., Appellants, v. Bryan W. SANDS et al., Appellees. Ernest GRIGGS, Commissioner of Employment Security of the State of Tennessee, Appellant, v. Melba T. BLACKBURN et al., Appellee.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    Sam J. McAllester, Jr., Chief Counsel, Peggy P. Williams, Asst. Counsel, Nashville, for appellant.

      Cecil D. Branstetter, Carrol D. Kilgore, Nashville, for appellees.
   OPINION

HARBISON, Justice.

These consolidated cases present the same issues for determination on appeal. They were tried and decided in different courts below on separate petitions for certiorari, seeking review of a decision of the Board of Review of the Tennessee Department of Employment Security, rendered on December 6, 1971.

The basic issue presented for decision is whether or not a back-pay award, made to discharged employees by an arbitrator, under a collective bargaining agreement, is to be treated as “wages” under the terms of the Tennessee Employment Security Law, so as to entitle the Department of Employment Security to a refund of unemployment benefits paid to the employees. An incidental question, raised by the decision of one of the chancellors below, is whether or not the terms and provisions of the Tennessee Employment Security Law authorize the Department to seek reimbursement in cases such as this.

These questions, or issues substantially similar to them, have been the subject of a number of decisions in courts of other states, but they appear to be issues of first impression in this state.

There is no dispute as to the facts of the cases, which involve five individual claimants, as the matter comes before this Court. These individuals were employees of the Heil-Quaker Corporation. Each was discharged from his employment on October 15, 1969 for alleged violation of the terms of a collective bargaining agreement between their union and the employer. Each employee was discharged for alleged unauthorized participation in a “slow-down” and curtailment of work, after having received a warning and reprimand from the employer.

The employees presented claims for unemployment compensation benefits under the Tennessee Employment Security Law, T.C.A. § 50-1301 et seq. They were initially determined by the Department to be ineligible for benefits under the terms of T.C.A. § 50-1324, subd. B(2). The Appeals Tribunal of the Department, on December 3, 1969, reversed this initial determination and approved the claim of each of the employees, who then received unemployment compensation benefits from the Department, retroactive from the time he was discharged.

In this interim, the employees had filed a grievance under the collective bargaining agreement, which is not in the record and the terms and provisions of which were not before the courts below and are not before this Court.

There is a stipulation in the record to the effect that the grievance was heard before an arbitrator, who rendered his decision on March 3, 1970, ordering the employer to reinstate the employees “with back pay to make them whole for the economic losses which they have incurred.”

Regarding the back pay, the arbitrator ruled:

“In computing the backpay due each employee the Company shall deduct any earnings from each Grievant from the date of his termination to the date of his return to employment. Any Unemployment Compensation benefits received by a Grievant shall also be deducted from the back pay due.”

It is further stipulated that the employer voluntarily complied with this award. Each employee apparently was rehired during April 1970, receiving retroactive pay from the time he was discharged until the time he was rehired, less any unemployment compensation and other earnings received by him during the period of his discharge.

The employer submitted information to the Department concerning the results of the arbitration, and on July 16, 1970 the Chief of Benefits of the Unemployment Insurance Division made a redetermination of the claim of each employee. He concluded that none of the employees was entitled to receive unemployment compensation for the same period of time which was covered by the back-pay award. Accordingly he rescinded the former approval of the claim of each employee, and the claims were rejected as of the date of the filing. An overpayment in the amount of the benefits paid to each claimant was declared, and demand was made upon the employees to reimburse the Department.

Appeals were taken by the employees from this decision to the Appeals Tribunal, and on May 6, 1971 the Chief Appeals Referee issued an opinion affirming the conclusion of the Chief of Benefits. Appeals were then taken by the employees to the Board of Review of the Department, which issued an opinion dated December 6, 1971, affirming the decision of the Appeals Tribunal.

Petitions for certiorari were then filed in the Chancery Courts of Giles County and Marshall County on behalf of different groups of the employees, and each of the Chancellors of those courts concluded that the amounts received by the employees as back pay were not to be treated as “wages” received by them, under the terms and provisions of T.C.A. § 50-1315. Each of the courts below reversed the decision of the Board of Review and disallowed the claim of the Department of Employment Security for reimbursement, in effect holding that each of the employees was entitled as an original matter to the unemployment compensation benefits which he had received, and that there had been no overpayment to any employee.

The Department has duly perfected an appeal to this Court, pursuant to the provisions of T.C.A. § 50-1325(1).

Under the provisions of the statute last cited, the findings of the Board of Review as to the facts are conclusive if there is any material evidence to support them, and, as previously stated, in the present case there is no dispute among any of the parties as to the facts. The statute provides that the jurisdiction of reviewing courts shall be confined to questions of law, assuming that there is material evidence to support the factual conclusions of the Board.

On a number of occasions in the past, this Court has held that to sustain the Board of Review’s application of the provisions of the Employment Security Law, “we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings. The ‘reviewing court’s function is limited’. All that is needed to support the commission’s interpretation is that it has ‘warrant in the record’ and a ‘reasonable basis in law.’ ” Milne Chair Company v. Hake, 190 Tenn. 395, 403, 230 S.W.2d 393, 396 (1950); Moore v. Commissioner of Employment Security, 197 Tenn. 444, 273 S.W.2d 703 (1954); Aluminum Company of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898 (1960); Cawthron v. Scott, 217 Tenn. 668, 400 S.W.2d 240 (1966); Thach v. Scott, 219 Tenn. 390, 410 S.W.2d 173 (1966).

As previously stated, this Court does not have before it the collective bargaining agreement, or any question as to the interpretation, meaning or effect of the award of the arbitrator. The employer likewise is not before the Court. Whether the arbitrator was correct or incorrect in requiring deduction of the amounts of unemployment compensation from the back pay received by each employee is a question which is simply not before us and upon which we cannot here make any determination. Whether, if the Department is held to be entitled to obtain reimbursement from an employee, the employee may reopen the arbitration award, or have any further recourse against his employer, are issues which we cannot reach upon this record. Regarding the issue as to where the ultimate responsibility for the unemployment compensation benefits should lie, one of the chancellors below stated the matter very aptly:

“No attempt has been made here to see whether the obligation could in this proceeding be cast on the employer where it rightfully belongs. Probably that would be a fertile field for investigation.”

The amounts claimed to have been overpaid to each employee are in the record before us, but the amounts which each employee actually received from his employer as back pay do not appear. The primary issue for determination by us, however, regardless of any rights or obligations among the employees, the employer and the union, is whether or not such sums as were received by the employees as unemployment compensation benefits were correctly determined to be overpayments in view of the fact that the employees did receive back wages covering the same period of time.

Our examination of the statutes involved and of the cases from other jurisdictions involving substantially similar questions, convinces us that back-pay awards should properly be treated as “wages” and their receipt renders an employee ineligible for unemployment compensation benefits.

Under T.C.A. § 50-1313, “unemployment” is defined:

“An individual shall be deemed ‘unemployed’ in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full time work if the wages payable to him with respect to such week aré less than his weekly benefit amount.”

In T.C.A. § 50-1315 are the following provisions:

“ ‘Wages’ means all remuneration paid for personal services from whatever source, including commissions and bonuses and the cash value of all remuneration in any medium other than cash.”

It is pointed out by the appellant, and conceded by the appellees, that awards of back pay are treated as the equivalent of “wages” under many federal statutes and for many different purposes. Thus, in the leading case of Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946), it was held that an award of back pay to an employee was “wages” within the definition of the Social Security Act, for the purpose of determining contributions to the Social Security fund. It was argued that the employee had not performed any services, and that benefits under the Act related to “wages earned” for “work done”. In rejecting this contention the Court held:

“We think that ‘service’ as used by Congress in this definitive phrase means not only work actually done but the entire employer-employee relationship for which compensation is paid to the employee by the employer.” 327 U.S. at 366, 66 S.Ct. at 641.

The United States Supreme Court further said:

“It is also true that in requiring reparation to the employee through ‘back pay’ that reparation is based upon the loss of wages which the employee has suffered from the employer’s wrong. ‘Back pay’ is not a fine or penalty imposed upon the employer by the Board. Reinstatement and ‘back pay’ are for the ‘protection of the employees and the redress of their grievances’ to make them ‘whole’. . A worker is not given ‘back pay’ by the Board equal to what he would have earned with the employer but for the unlawful discharge but is given that sum less any net earnings during the time between discharge and reinstatement.” 327 U.S. at 864, 66 S.Ct. at 641.

Concurring, Mr. Justice Frankfurter pointed out that “a man’s time may, as a matter of law, be in the service of another though he be inactive.” He stated:

“This is, practically speaking, the ordinary situation of employment in a ‘standby’ capacity. . . . The basis of a back-pay order under the National Labor Relations Act ... is precisely that. When the employer is liable for back pay, he is so liable because under the circumstances, though he has illegally discharged the employee, he still absorbs his time. . . . . In short, an employer must pay wages although, in violation of law, he has subjected his employee to enforced idleness. Since such compensation is in fact paid as wages, it is a plain disregard of the law for the Social Security Board not to include such payments among the employees’ wages.” 327 U.S. at 371, 66 S.Ct. at 644.

In the case of Manseau v. United States, 52 F.Supp. 395 (E.D.Mich., 1943), it was held that a back-pay award was taxable as income to the recipient, under the Internal Revenue Code. Quoting from earlier cases the Court noted that reinstatement of an employee and payment for lost time were not common law remedies. Speaking of the National Labor Relations Act, and quoting from an earlier decision of the United States Supreme court, the Court said:

“ ‘The Act . . . is an announcement to employees that if they are discharged for such activity they may have reinstatement and, in proper cases, back pay. Such a promise to employees was essential to assure them immunity for conduct made lawful by the Act.’ The employer is also notified that he will have to pay the employee notwithstanding the fact that the employee performs no service. . . . The money received by plaintiff which has been referred to in the findings of fact as back pay is income derived from wages or compensation for personal services within the meaning of Section 22(a) of the Internal Revenue Act . ” 52 F.Supp. at 396.

Although we recognize, as pointed out in the opinion of one of the courts below, that definitions contained in federal statutes are not necessarily controlling, nevertheless the state unemployment security law is closely geared to various federal statutes, and the definitions and usages given in federal law are persuasive.

The phrases, terms and definitions found in the unemployment compensation laws of the various states are not identical, but in almost every case which we have examined involving unemployment compensation statutes, back-pay awards, whether made by arbitrators or pursuant to the National Labor Relations Act, have been treated as the equivalent of “wages”.

One of the leading cases is that of In re Skutnik, 268 App.Div. 357, 51 N.Y.S.2d 711 (1944), appeal denied, 268 App.Div. 1072, 52 N.Y.S.2d 937 (1945). In that case back pay was awarded to striking employees, and the Court held that the employees had not, therefore, experienced “total unemployment” as a result of the strike. Accordingly awards of unemployment compensation' for the strike period were held to be invalid, and the Industrial Commission was held entitled to make a redetermination of the eligibility of the employees. The employees were required to repay the benefits received. There were some seventy-five claims involved, and the back-pay award to the employees by the National Labor Relations Board did not cover the entire period for which the employees were on strike. Nevertheless they were required to refund the compensation benefits received. In the course of its opinion, the Court said:

“In going on strike the claimants, in a sense, took the position that because their employer was guilty of unfair practices they were justified in refusing to perform the duties of their employment and, in prosecuting their complaints, that, although on strike, they were entitled to their wages. In this they were upheld and the award of their ‘back pay’ can, I think, only be held to have been compensation to them for the time which, but for the strike, they would have been employed in the usual sense of the word.”

The Court held that the employees were, in legal effect, employed during the time while they were on strike, although they justifiably refrained from performing their work because of unfair labor practices.

In the case of Meyers v. Director of Employment Security, 341 Mass. 79, 167 N.E.2d 160 (1960), the Supreme Judicial Court of Massachusetts reached the same result on facts almost identical to those of the present cases. There an employee had been awarded back pay and had been ordered to be reinstated, by an award of an arbitrator under a collective bargaining agreement. The award in that case, as in the instant cases, directed that the employee “should be made whole” but deducted from the award were any amounts which he had received from unemployment compensation during the period involved.

The Division of Unemployment Security redetermined the eligibility of the employee, and found that he was not entitled, as an original matter, to unemployment benefits, in view of the back-pay award. The Division sought reimbursement, which was allowed in the administrative proceedings and. in the lower court. Affirming, the Supreme Judicial Court of Massachusetts held that the employee could not have been considered to be in “total unemployment” because of the back-pay award, despite the fact that the back-pay award did not include the compensation benefits. The Court said:

“It is clear from the language used by the arbitrator that the award was to make the petitioner whole for the wages he lost from November 8, 1957, to March 12,1958. It appears that the award only gave the petitioner his back pay less the amount he received from unemployment benefits. This award, however, is not binding upon us or upon the director of the division. The Supreme Court of the United States has stated that the matter of recoupment by the State for unemployment benefits is a matter between the State and the employee. National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 365, 71 S.Ct. 337, 95 L.Ed. 337.” 167 N.E.2d at 162.

The Court further stated:

“The purpose of the arbitration proceedings was to reimburse the employee for any loss of wages caused by the wrongful act of the employer. An award of back pay in these circumstances was not a fine, penalty or damages as contended by Meyers. We think rather that it was remuneration from the employer for wages. .
“We think that the decision of the board, that the payment of unemployment benefits during the waiting period was not proper, was correct and that payment of benefits for the waiting period was properly a matter for redetermi-nation. .
“We do not have before us the issue whether, in view of our decision, Meyers is entitled to further payment of wages under the arbitration award.” 167 N.E.2d at 162-163.

To the same effect is the case of Texas Employment Commission v. Busby, 457 S.W.2d 170 (Tex.Civ.App.1970).

In that case also a discharged employee was ordered to be reinstated with back pay, pursuant to arbitration under a collective bargaining agreement. Reversing a decision of the trial court, and reinstating a decision of the Texas Employment Commission, the Court of Civil Appeals held that the back pay constituted “wages” under the Texas Unemployment Compensation Act, which defined wages in phraseology identical to that contained in the Tennessee statute.

In that case, also, the arbitrator’s award required that there be deducted from the back pay all amounts received by the employee from other employment and unemployment compensation during the period of her wrongful discharge. As in the Massachusetts case, this was not considered to be a bar to the right of the Texas Employment Commission to obtain reimbursement for the unemployment benefits originally awarded.

Consistent with the foregoing, although presenting the question in a different context, is the case of la re Tonra, 258 App.Div. 885, 15 N.Y.S.2d 755 (1989), appeal denied, 258 App.Div. 1002, 17 N.Y.S.2d 858 (1940), affirmed sub nom. Tonra v. Robins Dry Dock and Repair Co., 283 N.Y. 676, 28 N.E.2d 402 (1940).

In that case pursuant to a stipulation of the parties, all claims of an employee for back wages covering the period following a labor dispute were settled. It was held that all moneys paid by the employer under the settlement were “wages” as defined in the state Unemployment Insurance Law and were properly added to the wages of the employee, affecting his base for benefits. To the same effect, involving payments made under a National Labor Relations Board order, back pay was held to constitute remuneration and wages under the state law. McCoy v. Remington Rand, Inc. 262 App.Div. 790, 27 N.Y.B.2d 298 (1941), reargument denied, 262 App.Div. 976, 80 N.Y.S.2d 111 (1941), appeal denied, 286 N.Y. 733, 37 N.E.2d 150 (1941).

In the case of Salerno v. John Oster Mfg. Co., 37 Wis.2d 433, 155 N.W.2d 66 (1967), the issue involved a determination of the weeks of unemployment of the claimant, rather than the actual definition of wages. Although it was held that a back-pay award did not affect the number of weeks in which the employee was actually performing wage-earning services for his employer, in the course of its opinion the Court said:

“It is undisputed that back pay received during a discharge is the equiva-' lent of wages for benefit purposes and that consequently the recipient of the back pay would be ineligible for unemployment compensation.” 155 N.W.2d at 69.

The principal authority to the contrary which our research has revealed is the case of Waters v. State, 220 Md. 337, 152 A.2d 811 (1959). By a divided decision, the Maryland Court held that the Department of Employment Security had no authority, under the Maryland statutes, to proceed to recover from an employee benefits which had been paid to him, although he had received a back-pay award. In that case, an arbitrator awarded back pay to an employee for the period October 18, 1956 to January 24, 1957. He had already been paid unemployment compensation benefits for that period, and there was no deduction for those benefits in the back-pay award. Proceeding on the theory that it was entitled to be reimbursed either under state statutes or by reason of unjust enrichment, the Department made a redetermination of the eligibility of the employee, found an overpayment, and sought recovery. This was allowed in the administrative proceedings, and in the trial court, but was reversed on appeal by a divided decision. The majority of the Court held that the employee was “unemployed” during the period when he was not actually working, and when he was not actually receiving wages, despite the fact that he later received a back-pay award. The majority also held that under the terms and provisions of the Maryland statute, there was no authority for the state to seek reimbursement, in the absence of a material misrepresentation or nondisclosure of material fact.

It thus appears from our examination of the authorities that the Courts which have examined the question have uniformly, with the exception of the Maryland ease, found that an award of back pay is equivalent, both in theory and in fact, to wages earned by an employee, and that upon receipt thereof, the employee is ineligible for unemployment compensation benefits and may be made to account for them, either by reimbursement or by disallowance of future benefits.

We are persuaded that this is the better view, supported both by precedent and reason, and accordingly we hold that under the Tennessee statutes the back pay awarded to the appellees constituted “wages” for the period of their discharge, disentitling them to unemployment compensation benefits. The decision of the Board of Review, based upon our research, had “a reasonable basis in law.”

Appellees and the Courts below placed almost exclusive reliance upon the holding of this Court in the case of Balding v. Tennessee Department of Employment Security, 212 Tenn. 517, 370 S.W.2d 546 (1963). In that case, this Court held that severance pay, due to employees upon termination of their employment, was not the equivalent of “wages” and did not affect the entitlement of the employees to unemployment compensation benefits. We consider this holding to be entirely sound, and do not depart from it in any sense. Nevertheless, there is a fundamental difference between severance pay, the benefits of which usually accrue to employees by reason of seniority, and back pay, which is awarded, either by arbitration or by administrative action, by reason of wrongful discharge or suspension.

As pointed out by the Board of Review, in its opinion in the instant cases:

“The severance pay in the Balding case was awarded to an employee as a matter of right. The contract between the employer and the employees in the Balding case provided pay to employees meeting certain requirements and became a vested right to the employee when he was discharged through no fault of his own. The Court in that case pointed out that the employees would have received severance pay under their contract even though employed in a new job immediately upon the closing of the plant. The severance pay had no relation to the status of the employee after his dismissal from work. Clearly in our case, back pay related not to the prior performance of duties but only to the question of whether or not the employees were legally discharged. As pointed out in the stipulation in our case, the claimants were ordered reinstated with the employer required to remit back pay to make the employees whole for the economic losses the employees incurred during the illegal discharge.”

We believe that this is a sound distinction, and that there is no conflict whatever between the present decision and the Baid-ing case.

As stated previously, in the decision of one of the courts below, it was suggested that the Department of Employment Security was not authorized by statute to seek reimbursement from employees of benefits paid, absent a misrepresentation or nondisclosure of a material fact. It is true that T.C.A. § 50-1354, expressly provides for recovery in cases of nondisclosure or misrepresentation, but T.C.A. § 50-1325(B) contains explicit provisions for redetermination of awards and recovery for them in the same manner as is provided for the collection of past-due contributions from employers.

As pointed out by the United States Supreme Court in the case of National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 365, 71 S.Ct. 337, 340, 95 L.Ed. 337, 342 (1951):

“We note that some states permit re-coupment of benefits paid during a period for which the National Labor Relations Board subsequently awards back pay. E. g., Re Skutnik, 268 App.Div. 357, 51 N.Y. S.2d 711. Recoupment in such situations is a' matter between the State and the employees.”

In the later case of Nash v. Florida Industrial Commission, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967), the Court again recognized that a state can recoup unemployment compensation payments made during a period covered by a back-pay award.

We are of the opinion that the Tennessee statutes do authorize and contemplate reimbursement in appropriate cases, and that these are not confined merely to cases of misrepresentation or nondisclosure.

We have dealt with the issues presented here in some detail, not only because of their importance to the parties, but because they can potentially be involved in almost every arbitration and administrative decision. The result we have reached is not greatly different from that obtaining in workmen’s compensation cases, where employees may receive compensation awards subject to reimbursement if an ultimate recovery is made from a third party. T.C.A. . § 50-914. Arbitrators should take into account, in making back-pay awards, the impact of unemployment compensation benefits previously paid, and the effect of reimbursement which may be called for.

The judgments of the Courts below are reversed and the judgment of the Board of Review is reinstated at the cost of appel-lees.

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

      . In a case such as this, where an employer was required to pay back-wages to employees, minus the amounts of unemployment compensation benefits which they had received, it was held that the State Employment Security Board might recover from the employer the amounts which the Board paid to employees, under a theory of unjust enrichment. See State to use of Employment Security Board v. Rucker, 211 Md. 153, 126 A.2d 846 (1956).

      . Remuneration in excess of $3,300 per an-num (at all times pertinent here) is excluded for certain purposes, but all remuneration is included on which the employer is liable for any federal tax for which credit is available for “contributions” paid under the Tennessee Act, T.C.A. § 50-1315.
      The records before us do not develop issues under these statutory provisions, and we are simply asked to determine the broad issue of whether back-pay awards generally are within the meaning of the term “wages”.


author: HENRY, Justice.

text:
    Joe Harrison PATRICK, Petitioner, v. Helen DICKSON, Respondent.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    Tyler Berry, III, Franklin, for petitioner.
    John B. Wilkes, Nashville, for respondent.
   OPINION

HENRY, Justice.

This bastardy proceeding involves the construction and application of Section 28-106, T.C.A., governing the institution of actions after an adverse decision not foreclosing merits. Additionally it involves the question of whether the Tennessee Rules of Civil Procedure govern such cases.

I.

On February 25, 1971 respondent, Helen Dickson filed her petition in the Juvenile Court of Davidson County seeking to have that court determine that petitioner, Joe Harrison (subsequently identified as Joe Harrison Patrick) was the father of her child born June 9, 1968, and to recover the statutory support and incidental expenses. She alleged that the defendant had acknowledged paternity and had made small payments and gifts within the preceding two years. Process was served the following day.

On March 19,1971 the defendant filed his plea, demanding blood tests and fully denying all averments of the petition.

On October 5, 1971 the defendant moved the court to dismiss for lack of prosecution and for failure of complainant “to comply with the orders of the Court”, to present herself for blood tests. We parenthetically note that the record does not reflect the entry of an order pursuant to Sec. 36-228, T.C.A.

Two years later (March 23, 1973) the Juvenile Court entered an order reciting .that the case was set for trial on March 14,1973; that the parties were so notified; that the complainant was “paged twice to come forth and plead her case . . . and she did not appear”; that complainant “failed to respond to the court orders ordering her to have a blood test made, and ordering

(t)hat the complaint of Helen Paulette Dickson be dismissed as to this defendant, with prejudice. . . . (emphasis supplied)

In the absence of court orders relative to blood tests we must assume that the basis of the dismissal was failure to prosecute.

Three months after the entry of this order, (June 25, 1973) respondent, through another attorney, filed a new petition in the Juvenile Court of Davidson County seeking a paternity determination, reimbursement for expenses incident to pregnancy and for the support, maintenance and education of the child.

The defendant, by plea, moved to dismiss on the basis of the dismissal, with prejudice, of the former suit, moved for a blood test, and answered generally.

On January 23, 1974 the Juvenile Court entered an order sustaining the motion to dismiss solely on the basis of the dismissal, with prejudice,. of respondent’s first petition.

The Court of Appeals, in a split opinion, reversed and remanded for a trial on the merits.

The majority opinion, by Judge Todd, proceeds upon the assumption that § 28-106, T.C.A. and Rule 41.02, Tennessee Rules of Civil Procedure, are in irreconcilable conflict; that the Rules of Civil Procedure are not applicable to bastardy cases in juvenile court; that the statute must take precedence over the rule; that respondent did not have a hearing on the merits as contemplated by § 28-106, and that she had the right to prosecute her second suit to a conclusion.

Judge Shriver concurred in the remand, but agreed with Judge Drowota that the Rules of Civil Procedure are applicable in paternity cases. He concurs with Judge Todd that Rule 41.02 (1) and (3) would not be effective to deprive a plaintiff of the right to re-file a suit within one year after dismissal “upon any ground not concluding his right of action”. Judge Drowota would apply the Rules to paternity cases in Juvenile Court, and would hold that the court’s action in dismissing the first action would clearly operate to conclude the right of action and would bar the second suit, except to the extent that it relates to the cause of action of the child, which he would permit to stand under Reynolds v. Richardson, 62 Tenn.App. 269, 462 S.W.2d 233 (1970).

II.

We hold that the Tennessee Rules of Civil Procedure do not apply to paternity cases in the juvenile courts, under the present structure of these courts. Legal and practical considerations prompt this conclusion;

Rule 1, Tenn.R.Civ.P. reads as follows:

Subject to such exceptions as are stated in them, these rales shall govern the procedure in the circuit and chancery courts of Tennessee and in other courts while exercising the jurisdiction of the circuit or chancery courts, in all civil actions, whether at law or in equity, including civil actions appealed or otherwise transferred to those courts. These rules shall not be applicable to courts of general sessions except in cases where such courts by special or private act exercise jurisdiction similar to that of circuit or chancery courts. These rules shall be construed to secure the just, speedy and inexpensive determination of every action.

The Committee Comment following the Rule reads as follows:

Committee Comment: This rule makes it clear that these Rules establish identical procedures for circuit and chancery courts and for those other courts of record which have been established by special or private acts of the General Assembly and which have jurisdiction similar to that of the circuit or chancery court, or of both. The Rules are not applicable to general sessions courts in the exercise of jurisdiction conferred by general statutes, but if a particular general sessions court exercises, under authority of a special or private act of the General Assembly, special jurisdiction similar to that of the circuit or chancery court, then these Rules do apply to that court in the exercise of that special jurisdiction.

This Rule and the Comment thereunder makes it clear that the Rules apply only to the circuit and chancery courts and to other courts while exercising the jurisdiction of these courts. This was obviously intended to embrace special law courts, law and equity courts and those general sessions courts that, by private act, exercise limited circuit and chancery jurisdiction.

We question the propriety of extending Civil Rules to paternity cases. As a minimum, they are quasi-criminal in character. They are instituted by an arrest warrant, unless the court, in its discretion, determines that a summons be issued as in criminal cases. (§ 36-224).

When the putative father is arrested, he may be committed to jail in default of bond (§ 36-225). Section 36-231 provides for imprisonment of the accused for wilful failure to pay support.

The Civil Rules are not compatible with a quasi-criminal hearing.

We are not unmindful of the holding in Nabors v. Durham, 60 Tenn.App. 637, 450 S.W.2d 314 (1968) wherein the Court of Appeals for the Western Section held that proceedings in the juvenile court to determine paternity are equitable in nature; however this was in order to avoid a rigid rule of law with respect to pleading and does not purport to characterize a bastardy action as a suit in equity.

Indeed, the entire juvenile court structure, despite recent renovations and innovations continues to constitute, in a large measure, a junior criminal court.

This characteristic of these courts was recognized by the Supreme Court of the United States in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), wherein the Court points out that “there is a gap between the originally benign conception of the system and its realities” and observes that recent cases require “that [the] courts ‘eschew the “civil” label of convenience which has been attached to juvenile proceedings’ and that the juvenile process .... be candidly appraised.”

Courts cannot in good conscience always consider the practical impact of decisions, and this is especially true when constitutional rights and evolving standards of due process are involved, but here we deal only with the application of a procedural rule. We cannot avoid taking note of the fact that of the 105 courts exercising juvenile jurisdiction in Tennessee, only 26 are presided over by lawyers. This means that the application of these rules to the juvenile courts would result in their being administered and enforced by 79 lay judges — 75 per cent of the total number.

Until such time as these courts shall have been restructured this Court will not exercise its inherent or statutory supervisory power to impose upon them a set of rules, which were written for courts presided over by law-trained judges and operating on a much more formal basis than is contemplated for juvenile court proceedings.

III.

We now consider the question of whether § 28-106 T.C.A. operates to bar the second paternity action.

It does not.
This section reads as follows:
28-106. New action after adverse decision not foreclosing merits. — If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.

The very first case’ annotated under this statute recites that it’s for the benefit of a plaintiff whose first case has been dismissed without a hearing on the merits. Reed v. Cincinnati, N.O. & T.P.R. Co., 136 Tenn. 499, 190 S.W. 458 (1916).

Under the old practice, a dismissal for failure to file a declaration (a form of failure to prosecute) did not conclude the right of action. La Follette Coal, Iron & R. Co. v. Minton, 117 Tenn. 415, 101 S.W. 178 (1906).

In Rye v. DuPont Rayon Co., 163 Tenn. 95, 40 S.W.2d 1041 (1931), the Court held that a dismissal for failure to prosecute an action does not conclude the right to renew the suit within a year.

Rye was relied upon by this Court in Woods v. Palmer, 496 S.W.2d 474 (Tenn.1973), wherein Justice Humphreys, writing for the Court, held that “Sec. 28-106 T.C.A. is remedial and should be liberally construed in furtherance of its purpose, and in order to bring cases within its spirit and fair intention.” Woods involved a claim against a decedent estate which was dismissed for failure to prosecute.. Thereafter, within one year, the claim was re-filed. It was dismissed by the probate court on the basis of a plea of res judicata. Relying on Rye, the Court held that unless the dismissal was on the merits, the refiled claim was not barred either by the statute of limitations or by the doctrine of res judicata. In setting aside the judgment of the probate court, the Court concluded its opinion with these apt words:

So, while, because of the volume of judicial business today, there may be justifiable impatience with a failure to prosecute, the statute authorizing the reinsti-tution of a suit, where the first suit has been terminated on inconclusive grounds cannot be ignored. 496 S.W.2d at 477.

See also W. R. Grace & Company v. Taylor, 55 Tenn.App. 227, 398 S.W.2d 81 (1965), wherein Justice Humphreys, while a member of the Court of Appeals for the Middle Section, held that a decree dismissing a suit for want of prosecution was not res judicata since the dismissal was not on the merits, and a subsequent suit could be brought within one year.

We are not unmindful that the original order of dismissal recited that it was “with prejudice”. In Long v. Kirby-Smith, 40 Tenn.App. 446, 292 S.W.2d 216 (1956), the dismissal order was “with full prejudice”. In a most excellent opinion by Justice Felts, it is pointed out that such dismissals were unknown to the common law. At common law a non-suit, a discontinuance or a non prosequitur merely ended that particular suit but did not bar a subsequent suit on the same cause of action, unless a retraxit (an open and voluntary renunciation of suit in court) was entered. The rule of retraxit does not prevail in Tennessee. Apropos this case the Court said:

Nor do the common-law courts in this state have jurisdiction, like courts of equity, to enter decrees dismissing actions “without prejudice” to plaintiff’s right to sue defendant again on the same cause or “with prejudice” to such right. The decisive test is whether the judgment was on the merits. 292 S.W.2d at 221.

The present practice is governed by Rule 41 of the Tennessee Rules of Civil Procedure, but, as aforesaid these rules do not apply to the juvenile court. That court continues to be governed by the common law rules of Long, supra.

We hold that the first order of the juvenile court, dismissing for failure to prosecute, was not “on the merits” and that the words “with prejudice” were a nullity. We further hold that the action of the juvenile court in dismissing the second paternity action was erroneous.

The judgment of the Court of Appeals is affirmed. The costs in this Court will be paid by petitioner.

COOPER, HARBISON and BROCK, JJ., and LEECH, Special Justice, concur.


text:
    The STATE of Tennessee, etc., Appellant, v. DELINQUENT TAXPAYERS AS SHOWN ON 1972 REAL PROPERTY DELINQUENT TAX RECORDS OF The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, and more specifically described in Exhibit A, et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 18, 1975.

      James H. Harris, III, Metropolitan Atty., Nashville, for appellant.
    Ames Davis, Waller, Lansden, Dortch & Davis, Nashville, for appellees.
   OPINION

HENRY, Justice.

To the extent of this appeal the sole issue in this controversy is the right of a delinquent taxpayer to maintain an action for tax relief without first paying the taxes under protest.

The base suit was filed by the Metropolitan Government of Nashville and Davidson County for the purpose of collecting real estate taxes for the year 1972 from various property owners. Appellees made no defense, but petitioned the Court for leave to discharge their tax lien by payment of the base tax, without the payment of penalty and interest. The basis of their request for the remission of the penalty and interest is that at the time the tax became due and payable, the property was mortgaged to secure payment of construction money. Appellees insist that they understood that these taxes were to be paid out of the mortgage escrow account. Subsequently, this loan was the subject of two successive transfers. On each occasion Chicago Title Company issued its policy of mortgage insurance and no reference was made to the tax liability for the year 1972.

The Metropolitan Government moved to dismiss pursuant to Rule 12.02(1), Tennessee Rules of Civil Procedure, for failure to comply with Sec. 67-2303 et seq., T.C.A., which it asserts is the exclusive remedy and requires payment of disputed taxes under protest as a condition precedent to relief.

The Chancellor entered an order requiring payment of the base tax and interest, but remitted the penalty. The Metropolitan Government has perfected its appeal.

I.

Sections 67-2303 et seq., T.C.A., provide a full, complete, orderly and exclusive remedy for the taxpayer who conceives himself wronged by an improper exercise of the taxing power. This statutory scheme contemplates payment of disputed tax liability as a condition precedent to a suit for a refund. There is no statutory predicate for a suit for the forgiveness of taxes, penalty, or interest, and no case law in this jurisdiction supports such a procedure.

The statutory scheme provides, in clear and cogent language, that where proceedings are instituted for the collection of revenue due the municipality, the taxpayer:

(s)hall, if he conceives the same to be unjust or illegal, or against any statute or clause of the Constitution of the state, pay the same under protest. (Emphasis supplied) Sec. 67-2303, T.C.A.

The whole theory of this exclusive remedy for contesting tax liability is that tax revenues are the lifeblood of public corporate existence and public bodies may not be frustrated in the performance of essential governmental functions by postponements or delays in their collection. Bank of Commerce and Trust Co. v. Senter, 149 Tenn. 569, 260 S.W. 144 (1924).

In Tidwell v. Goodyear Tire & Rubber Company, 520 S.W.2d 721 (Tenn.1975), we recognized the traditional power of courts of equity to relieve against forfeitures and penalties. Indeed this is a broad equitable power, but in a case such as this, it may only be invoked pursuant to payment under protest.

The matter of the allowance of attorney’s fees, as provided in Sec. 67-2008 T.C.A. will abide the decree of the Chancellor in the base suit.

Reversed.

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

      . Sections 67-2303 — 67-2308, inclusive and Sections 67-2310 — 67-2312 are made applicable to municipalities, by § 67-2313.


text:
    Vivian Seagraves LOCKE, Appellant, v. John W. DAVIS, Executor, Estate of F. F. Locke, Deceased, Appellee.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    Harwell, Bottoms & Plant, Boston, Weatherford & England, Lawrenceburg, for appellant.
    Holtsford, Hairrell & Doerflinger, Law-renceburg, Keaton & Turner, Hohenwald, for appellee.
   OPINION

COOPER, Justice.

James Mack Seagraves, Executor of the Estate of Vivian Seagraves Locke, has appealed from a decree of the Chancery Court of Lawrence County, Tennessee dismissing the action brought by Mrs. Locke against the estate of her husband to recover $50,-000.00 allegedly due her under the will of her deceased husband, Foster F. Locke.

On January 15, 1971, Vivian Seagraves and F. F. Locke entered into an antenuptial contract, the material part of which is as follows:

“Now, therefore, if the party of the second part (Vivian Seagraves) survives the party of the first part (Foster F. Locke), the party of the second part agrees to accept from the estate of the party of the first part the sum of ($50,000.00) Fifty thousand dollars in lieu of dower and her distributive share of the personal property, and that the party of the first part shall hold all the real estate which he now owns or may hereafter acquire free from claim of dower, inchoate or otherwise; in consideration whereof the party of the first part shall be paid the sum of ($50,000.00) Fifty thousand dollars, if the party of the second part survives the party of the first part as the lawful widow of the party of the first part, as soon after the decease of the party of the first part as may be practicable, and that said sum shall constitute a charge upon the entire estate, real or personal, of which the party of the first part may die seized or possessed.”

Mrs. Seagraves and Mr. Locke were married on January 21,1971, and lived together until Mr. Locke’s death on August 17, 1973.

The will of Mr. Locke admitted to probate bore the date of February 12th, 1971. The will contains a number of specific bequests including a bequest to “my wife, Vivian Locke, $50,000.00.” Mr. Locke also provided in Item II of his will that:

“My home on East Gaines Street is to be used and occupied by my wife, Vivian Locke, so long as she lives or as long as she remains a widow . . . and until that time she is to have the undisturbed occupancy thereof and after that, it goes to John Foster Hickman.”

In a codicil to the will, Mr. Locke made provision for payment to Mrs. Locke of the sum of One Hundred ($100.00) Dollars per month for life, from the income of a motel which was given to Ellen Duggan and Ivan Warren in the original will. Mr. Locke further provided that in the event the legatees of the motel decided to sell it, then in that event Ten Thousand ($10,000.00) Dollars of the proceeds of the sale were to be placed with the executor of his will, to be placed on interest and for his wife, Vivian to have the income from the Ten Thousand ($10,000.00) Dollars and that, at her death, the Ten Thousand ($10,000.00) Dollars to go to the residuary beneficiary.

The executor of Mr. Locke’s estate paid Mrs. Locke Fifty Thousand ($50,000.00) Dollars. Mrs. Locke also received One Hundred ($100.00) Dollars per month from the income of the motel, was given the household goods and appliances, and the use of the house on East Gaines Street.

On February 22, 1974, Mrs. Locke filed the present action against the Executor of the Estate of Mr. Locke, seeking to have the court direct the defendant “to pay over to plaintiff all of the sums and amounts that were provided for in the will of her deceased husband, F. F. Locke.” Mrs. Locke died while the action was pending and the appellant, as executor of her estate, was substituted as plaintiff.

The Pulaski Street Church of Christ, the residuary beneficiary, intervened and joined the executor in defending the action, both taking the position that Mrs. Locke was due no further payments by the Estate of Mr. Locke under either the will or the antenup-tial contract.

Reduced to its simplist form, the issue in the trial court, and now in this court, was whether the bequest of Fifty Thousand ($50,000.00) Dollars to Mrs. Locke was intended by Mr. Locke to be in payment of the obligation created by the antenuptial contract or was intended to be a gift. The chancellor concluded that it was intended to be in satisfaction of the antenuptial contract obligation and dismissed the action, citing the doctrine of satisfaction and the fact that there was nothing in the will to indicate any intent to the contrary.

It is basic that in construing a will, the testator’s intention must prevail if it can be ascertained from the language of the will read in the light of circumstances known to the testator at the time the will was executed. Tigrett v. Tigrett, 61 Tenn.App. 172, 453 S.W.2d 100 (1968); Ashley v. Volz, 218 Tenn. 420, 404 S.W.2d 239 (1966); Blackmore v. Blackmore, 35 Tenn. 365 (1855). If the testator’s intention is not evident from the language of the will and the surrounding circumstances, in cases where a legacy of the same or greater amount, and agreeing in character and time of payment, with an existing debt of the testator, is given to the creditor by a will which contains no provision indicating a different intention, it is presumed to be in satisfaction of the debt and not in addition to it. Whenever this presumption of satisfaction arises, the creditor-legatee is put to an election and cannot have both legacy and debt. See 86 A.L.R. 7; 47 A.L.R.2d 1143; 1 Phillips, Pritchard on Wills, Section 465, 6 Bowe-Parker; Page on Wills, Sec. 57.9. This rule of construction, which is known as the doctrine of satisfaction, has been frequently criticized as being harsh and one which results in the defeat of the testator’s intention as often as it results in carrying out his intention. Consequently, as noted in the Annotation: Legacy or Devise to Creditor, “generally, the courts recognize the existence of this doctrine, but in the next breath they are apt to observe that the rule is regarded with disfavor, and that slight variations suffice to make it inapplicable. Indeed, [the doctrine of satisfaction], at least in the later cases, has shown such debility that it is probably safe to say that no reliance can be placed on it with any degree of prudence.” 47 A.L.R.2d 1143. In 6 Bowe-Parker: Page on Wills, Sec. 57.9, it is pointed out that “in some cases this attitude very nearly results in a practical if not an admitted denial of the presumption, unless such presumption appears affirmatively to coincide with the testator’s intention.” German v. German, 47 Tenn. 180 (1869), where the legacy was smaller than the debt, is included in cases cited in support of the statement. See also 1 Phillips, Pritchard on Wills, Section 465 wherein it is stated:

“The courts have shown a disposition to restrain the operation of the rule in all cases where from circumstances to be collected from the will, it might be inferred the testator did not intend to satisfy the debt with the legacy; and have not been disposed to understand the testator as meaning to pay a debt when he declares he makes a gift, unless the circumstances or language of the will lead to a different conclusion.” (emphasis added).

In this case there is no variation between the amount and date of payment of the debt arising from the antenuptial agreement and the legacy so as to deny credibility to the presumption arising from the doctrine of satisfaction, nor is there any circumstance to be collected from the will which would indicate that Mr. Locke did not intend to satisfy the debt by the legacy. But more importantly, even absent the doctrine of satisfaction, the time sequence of the antenuptial contract, the marriage and the execution of the will, all taking place in less than a thirty day period, and the further fact that the bequest is in the amount agreed upon in the antenuptial contract as Mrs. Locke’s basic share of the estate payable on the death on Mr. Locke, lead us to the conclusion that Mr. Locke intended that the legacy be in satisfaction of the obligation created by the antenuptial contract.

The decree of the chancellor dismissing the action is affirmed. Costs are adjudged against appellant, James Mack Seagraves, as Executor of the Estate of Vivian Sea-graves Locke, and his surety.

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


text:
    UPTAIN CONSTRUCTION COMPANY, Appellant, v. Oscar McCLAIN, Jr., Appellee.
    Supreme Court of Tennessee.
    Aug. 18, 1975.
    William B. Cain, Cain & Moore, Columbia, for appellant.
    Jim T. Hamilton, Mt. Pleasant, for appel-lee.
   OPINION

COOPER, Justice.

This is an appeal by an employer from an adverse decree entered by the Chancery Court of Maury County in a workmen’s compensation action.

The record shows the appellee, Oscar McClain, Jr., was employed by appellant, Uptain Construction Company, as a sand blaster helper. On March 1, 1973, Mr. McClain was called upon to lift a sandblasting machine and to set it upright and, in doing so, injured his back.

On trial of the case on May 28, 1974, the chancellor found that as the result of the on-the-job injury, the appellee was entitled to recover temporary total disability benefits from the date of injury to April 28, 1978, and “permanent partial disability benefits at the rate of 15% to the body as a whole.”

The appellant insists there is no evidence in the record to support the chancellor’s award of permanent partial disability benefits. Appellant makes no issue of the award of temporary total disability benefits.

Only two witnesses testified in this case, the appellee and his doctor, Dr. Tom K. Young. The substance of the appellee’s testimony is that he has been completely free of pain since injuring his back and that he cannot perform labor without pain. Appellant further testified he has worked with reasonable consistency, though always with pain, since November, 1978, as a tile setter for Bolton Tile Company.

Appellee’s assessment of his physical condition is competent testimony and may not be disregarded. However, while his testimony is of probative value in establishing simple matters, such as existence of pain, its location, his ability to work, it will not support a finding of permanent disability. Washington County Board of Education et al. v. Hartley, 517 S.W.2d 749 (Tenn.1974); Tom Still Transfer Company v. Way, 482 S.W.2d 775 (1972). In all but the most obvious cases, such as the loss of a limb or of an eye, the permanency of an injury must be established by expert medical testimony. Washington County Board of Education et al. v. Hartley, supra; Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). As heretofore noted the only witness other than appellee was Dr. Tom K. Young. According to Dr. Young, he treated Mr. McClain during the period of April 2, 1978, through April 30, 1973. Dr. Young also examined Mr. McClain on March 18, 1974, preparatory to testifying in this case. Dr. Young testified that on the initial examination of appellee on April 2, 1978, he concluded that appellee was suffering from “an acute lumbo-sacral strain,” with some left sciatic radiation through the posterior part of the thigh. There was no demonstrable nerve damage. Dr. Young testified that he then prescribed a muscle relaxing drug and also medicine for pain; that he next saw appellee on April 23, 1973, and released appellee to return to work; that on April 30, 1973, appel-lee returned for further treatment, still complaining of low lumbar pain with left sciatica. A muscle relaxant was prescribed at that time. Dr. Young stated that he did not examine or treat Mr. McClain further until March 18, 1974. In connection with this last examination, Dr. Young testified as follows:

“Q. All right, sir. When did you last see the patient, Doctor?
“A. He came out for an evaluation, I believe at the request of one of your attorneys on 3-18-74.
“Q. At that time, what did you find or what did he allege to you?
“A. He alleged at that time that he still had left lumbar pain most of the time and it was aggravated by strain or lifting.
“Q. All right, sir.
“A. That he still on occasion had left upper sciatica, that is, through the portion of the thigh. And I still was not able to state that he had any nerve damage.
“Q. And with a person such as Mr. McLain (sic) and with the type of injury you have indicated, I’ll ask you again, is it unusual for him to complain of severe pain when he has to do the type of labor that he was doing, that is strenuous labor?
“A. That is what he has alleged to me.
“Q. Yes, sir.
“A. Three times, you might say, the original, the time I tried him a week at work, and then for his final evaluation in March.
“Q. And in your letter of March 18th that I have before me, you stated that any disability that this man would have at this time would be related to the subjective element listed above, namely pain; is that correct? (The letter referred to by counsel was not introduced in evidence.)
“A. That’s correct, with this reservation, I know there is not universal agreement on this point, but I think it’s fair to people, if a man has to make a living at common labor and he’s unable to do it, I feel that you have to consider it in your disability.”

For some reason not evident in the record, counsel for neither party asked Dr. Young if Mr. McClain had sustained any permanent disability as the result of the on-the-job injury of March 1, 1973. Absent the answer to this question, the award of permanent partial disability benefits cannot be sustained. Floyd v. Tennessee Dickel Distilling Company, 225 Tenn. 65, 463 S.W.2d 684 (1971); Moyers v. Oman Construction Company, 223 Tenn. 449, 446 S.W.2d 684 (1969). In like cases, in the interest of doing complete justice to the parties, this court has remanded the case for the taking of proof on the issue of permanency of disability and its companion issue, the extent of the permanent disability if any is. found to exist. Floyd v. Tennessee Dickel Distilling Company, supra; Minton v. Leonard, 219 Tenn. 642, 412 S.W.2d 886 (1966).

Accordingly, the decree of the chancellor awarding appellee a recovery of temporary total disability benefits is affirmed. The award of benefits for permanent partial disability is reversed and the cause is remanded for a trial upon the issues of permanence and extent of the disability, if any, of Oscar McClain, Jr., as the result of his on-the-job injury of March 1, 1973. All costs to date are adjudged against the ap-pellee, Oscar McClain, Jr.

FONES, C. J., and BROCK and HARBI-SON, JJ., concur.

HENRY, J., not participating.


text:
    George M. TIDWELL, Commissioner of Revenue, State of Tennessee, Appellant-Defendant, v. GAINES MANUFACTURING COMPANY, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Aug. 18, 1975.

      Everett H. Falk, Asst. Atty. Gen., Nashville, for appellant-defendant; R. A. Ashley, Jr., Atty. Gen., of counsel.
    Carl H. Langschmidt, Jr., Boone, Well-ford, Clark, Langschmidt & Pemberton, Memphis, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

This action was brought by appellee to recover franchise and excise taxes which had been paid under protest. The issue presented is whether or not appellee is entitled to use a statutory apportionment formula for its excise and franchise taxes on the ground that it is doing business “in Tennessee and elsewhere” as provided in T.C.A. §§ 67-2706 and 67-2912.

In an opinion of this Court released on June 16, 1975 in the case of The Navarre Corporation v. Tidwell, Tenn., 524 S.W.2d 647, the same issue was presented. The controlling Tennessee cases on the subject were discussed in some detail in that opinion, and it is therefore not deemed necessary to repeat that discussion here.

As pointed out in the Navarre case, the two criteria which have been given greatest emphasis in cases on this subject are whether the corporation has domesticated its charter or otherwise formally qualified to do business in another jurisdiction and whether or not it has in fact paid taxes to another jurisdiction based upon the privilege of doing business there in corporate form. As stated in that opinion, when both of these elements are lacking, a Tennessee corporation must make a very strong showing of substantial contacts with another jurisdiction in order to be entitled to avail itself of the apportionment formulae. It was pointed out in the Navarre case, however, that the two criteria mentioned above are not necessarily the sole considerations upon which apportionment may be allowed, and it may be possible for a corporation to use the apportionment formulae even though it has neither qualified in nor paid corporate privilege taxes to another jurisdiction. The factual situation in the Navarre case was such that the Court felt that an insufficient showing had been made.

In the present case the chancellor found that the appellee had made a sufficient factual showing, despite its lack of qualification or payment of privilege taxes in other jurisdictions. After reviewing the record, we are of the opinion that the conclusion of the chancellor is correct.

Appellee is a Tennessee manufacturing corporation, conducting all of its manufacturing operations at McKinzie and Dresden, Tennessee. It manufactures furniture for sale to retail furniture stores, and sells its products in some thirty to forty states. It has approximately twenty salesmen, eighteen of whom reside permanently in other states. All of these salesmen are full-time employees of appellee, compensated on a commission basis.

Involved in this case are the tax years 1966 through 1971. The record shows that the operations of appellee were conducted in the same manner throughout this period, although the gross sales of appellee rose steadily in the years before, during and subsequent to the tax period in question. The record reflects that sales in 1964 were four million dollars, and by 1973 had risen to nineteen million dollars. Tennessee sales generally represented about twelve per cent of the total.

During all of the years in question appel-lee rented space for showrooms in Chicago, Illinois and High Point, North Carolina on an annual basis. A sublease agreement entered into for showrooms at High Point, North Carolina on August 12, 1968 reflects an annual rental of $19,316.10. Substantial rentals were also paid for the Chicago space. The commission salesmen of appel-lee used these facilities as needed, and furniture was kept at each showroom throughout the year for display to customers. An additional showroom was rented in Atlanta, Georgia for the years 1970 and 1971. In addition to paying rent on these leased premises, appellee also paid telephone and other utility expenses.

In addition, appellee maintained throughout the tax years in question warehouses in Cleveland, Ohio and Detroit, Michigan, where an inventory of furniture was kept. Shipments were made from these inventories to fill orders taken by salesmen. Personal property taxes were paid to the States of Illinois, Michigan and North Carolina on the inventory of appellee in those states.

Despite the fact that the corporate offices of the appellee were located in the State of Tennessee and that all of its manufacturing operations were carried on there, we are of the opinion that the contacts of appellee with other jurisdictions were sufficiently permanent and substantial to justify the conclusion of the chancellor that the appellee was doing business in other states as well as Tennessee. The regular renting of substantial premises in these jurisdictions, the payment of personal property taxes there, the maintaining of inventories and a substantial number of full-time employees in these jurisdictions, in our opinion, are factors strongly supporting the conclusion of the chancellor.

It appears in the record that prior to the tax years in question the Commissioner of Revenue had permitted appellee to avail itself of the apportionment formulae. It was the opinion of the Commissioner and his staff that under the decision of this Court in the case of Signal Thread Company v. King, 222 Tenn. 241, 435 S.W.2d 468 (1968), appellee was no longer entitled to apportionment. We believe, however, that an examination of the Signal Thread case, reveals substantially fewer and much less permanent contacts with other jurisdictions than are revealed in the present record. In that case the taxpayer did maintain some finished goods and work in process inventory at North Carolina mills. It also had one full-time resident employee in the State of North Carolina. In addition, personnel of the taxpayer from time to time went to North Carolina to check on the equipment being used and on the quality of the product. The taxpayer did not pay personal property taxes on its inventories, and paid no franchise or excise taxes there until after it had become involved in a dispute with the Tennessee Department of Revenue. This Court held that the contacts with North Carolina, as shown in that case, were not sufficient to entitle the taxpayer to use the apportionment formulae. As stated, however, we believe that the factual showing made in the present case is substantially different from that in the Signal Thread Company case, and we do not consider the decision in the latter case to be dispositive here.

As pointed out by the Director of the Franchise and Excise Tax Division of the Department of Revenue in the present case, the phrase “doing business in Tennessee and elsewhere” as used in the Tennessee statutes, is not defined at any point in the legislation. The phrase “doing business”, of course, is not uniformly defined in the various types of cases where it is used. In cases involving the requirement of domestication of a corporation, or in cases involving the amenability of a corporation to service of process, different factors and considerations are stressed and discussed by the courts from those emphasized in the franchise and excise tax cases. In addition to formal qualification and actual payment of privilege taxes, the Director, in his testimony, indicated that the Department considered that the maintaining of full-time employees and a permanent place of business outside of the state were factors which the Department itself deemed relevant in determining whether or not apportionment was authorized. The Court is in agreement that these are legitimate considerations, and as previously stated, in our opinion the factual showing in the present case was sufficiently strong that we conclude that the taxpayer was entitled to continue to use the apportionment formulae during the tax years involved here.

The judgment of the chancellor is affirmed at the cost of appellant.

COOPER, BROCK and HENRY, JJ., and LEECH, Special Judge, concur.