text:
    STATE of Missouri, Respondent, v. Orville Sanford WOODSON, Appellant.
    No. 36224.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 22, 1975.
    Charles D. Kitchin, Public Defender, Thomas J. Prebil, Henry J. Rieke, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Orville Sanford Woodson, charged under the Second Offender Act, Sec. 556.280, RSMo 1969, V.A.M.S., was found guilty by a jury of burglary in the second degree and sentenced by the court to imprisonment for a term of ten years.

There is no challenge to the sufficiency of the evidence. Appellant’s only point on this appeal is that the trial court erred in not permitting him to argue to the jury “the absence of fingerprints for a proper foundation was made during the trial to allow such argument.”

A jury reasonably could find from the evidence that on September 23, 1973, appellant broke into and entered a building in the City of St. Louis known as Singer Drugs, a pharmacy, where goods, wares and merchandise were kept with intent to steal therein.

Appellant contends that the testimony of Patrolman Daniel Granger established the proper foundation for the argument pertaining to the absence of fingerprints. He testified that on September 23, 1973, he responded to a radio call that an alarm was sounding at the Singer Drugstore. He went to the rear of the building and saw appellant emerging from the door of a church which adjoined the Singer Drugstore and through which a hole had been cut in a common wall between the two. Appellant ran about 200 feet but stopped when Officer Granger threatened to shoot him. During cross-examination the following occurred:

Q All right. Did you summon — what is ETU?
A That’s the Evidence Technician Unit.
Q Did you summon them ?
A Yes, sir.
Q Were you there when they arrived?
A Yes, sir.
Q Did you see them conduct any investigation at the scene?
A No, sir.
Q And have you had an occasion to, on prior occasion in your service as a police officer, to summon the Evidence Technician Unit to the scene of a crime?
A Yes, sir.
Q And in your experience as a police officer and your training on the force, what is your understanding of the function of that unit?
A To obtain physical evidence.
Q Now do you, — is it also a part of their function to process a scene for fingerprints ?
A Yes, sir.
Q Of your own knowledge, do you know whether or not they conducted such an investigation at this particular scene?
A I do not.

The issue is not whether evidence was admissible that the police searched for and did nor did not find any fingerprints of appellant at the scene of the crime. The question is whether in view of the above evidence, appellant was entitled to argue to the jury “the absence of fingerprints.”

The above testimony did not constitute evidence that the police searched for and did or did not find fingerprints of appellant on any item that he might have touched. “It was not incumbent upon the state to take defendant’s fingerprints from the articles that he touched, or if taken, to produce them in evidence. Nor is the state required to account for their absence.” State v. Holmes, 389 S.W.2d 30 (Mo.1965). This is not to say that if there had been evidence of a search for fingerprints that the result of that search would not be a proper subject for argument. But, in the situation before us, the proposed argument would have been outside the record, and the trial court properly excluded it.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: ALDEN A. STOCKARD, Special Judge.

license: Public Domain

text:
    Tonya Georgette WESSELS, a minor, by Luanna Sams, her next friend, Plaintiff-Appellant, v. Howard GIPFEL, Jr., Defendant-Respondent.
    No. 36046.
    Missouri Court of Appeals, St. Louis District, Division 4.
    April 22, 1975.
    Friedman & Fredericks, Oval A. Phipps, Clayton, for plaintiff-appellant.
    Heneghan & Roberts, Inc., Kemper R. Coffelt, Jay G. Newquist, St. Louis, for defendant-respondent.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff has appealed from the judgment of the circuit court dismissing her petition for compensatory damages resulting from the alleged wrongful death of her putative father.

Certain facts are admitted, or for the purpose of this appeal are assumed by the parties. George Wessels, age twenty-five, met his death on October 24, 1971, by reason of the negligence of Howard Gipfel, Jr., respondent. At the time George Wes-sels was not married and was living with his widowed mother, Juanita Wessels, and was her principal source of support. On November 10, 1971, Juanita Wessels brought suit against Howard Gipfel, Jr. for the wrongful death of her son. That suit was dismissed on April 30, 1973, pursuant to a stipulation, apparently as the result of a negotiated settlement.

On August 28, 1973, almost four months after the dismissal of the wrongful death suit brought by the mother of George Wes-sels, the petition in' this suit to obtain compensatory damages for the wrongful death of George Wessels was filed by Tonya Georgette Wessels. For the purposes of this appeal we accept as a fact that George Wessels was the natural father; that Luanna Sams is the mother of plaintiff; that plaintiff was born on May 16, 1972; and that George Wessels and Luanna Sams were never married.

The trial court dismissed plaintiff’s petition on the basis that it was barred by the statute of limitations, and plaintiff has appealed.

There is no contention that an illegitimate child does not have the same right to sue for the wrongful death of its natural father which occurred before its birth, as a child whose mother was married to the natural father at the time of the father’s death. See the annotation at 38 A.L.R.3d 613. Whatever right either has is now governed by § 537.080 to § 537.100, RSMo 1969, V.A.M.S., and it is only by virtue of these statutes, comprising what is called the Wrongful Death Act, that any claim or cause of action accrues. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889 (1943); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957).

By reason of the construction placed by the courts on previous wrongful death acts, and the relation between those provisions and the provisions of the present Wrongful Death Act, we will first refer to the previous provisions and the judicial construction of them. However, as to any wrongful death statute, “A party suing under the statute . . . must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment. Only such persons can recover (and in such time and in such manner) as the letter of the law prescribes. Only such persons may sue as the statute permits, and they alone can sue. ... It must ‘be conceded that the section reserves to itself the exclusive power of naming those who can maintain the action and of fixing the time in which each of the enumerated persons could sue.’ ” Chandler v. Chicago & A. R. Co., 251 Mo. 592, 158 S.W. 35, 37 (1913). Also, “The wrongful death statute creates but one indivisible cause of action which remains the same whether enforceable by the surviving spouse, by the minor child or children, or by the others named in the statute.” Nelms v. Bright, supra, at p. 487.

Prior to the amendment of the wrongful death statute, Laws of 1967, p. 663, effective October 13, 1967, what was then §§ 537.080, 537.090 and 537.070, provided that the damages for wrongful death could be sued for and recovered:

(1) By the husband or wife of the deceased ; or
(2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, . . . ; or
(3) If such deceased be a minor and unmarried . . . [other provisions not here applicable]; or
(4) If there be no husband, wife, minor child or minor children, [other provisions not here applicable].

What was then § 537.100 provided that “Every action instituted under section 537.-080 shall be commenced within one year after the cause of action shall accrue;

In Uber v. Missouri Pacific Railroad Company, 441 S.W.2d 682 (Mo.1969) the cause of action was governed by the above provisions. The alleged wrongful death occurred on February 24, 1967. On February 21, 1968, more than six months but less than one year after the death, suit was filed in which the widow and a minor son were named as plaintiffs. On May 31, 1968, the minor son voluntarily dismissed the petition as to him only. The court held: “As this case reaches this court, there is but one plaintiff, the widow, the original co-plaintiff [minor son] having voluntarily dismissed without prejudice the petition as to him only. ... It must be kept in mind that when this cause of action accrued the Wrongful Death Act contained two periods of limitation bearing on this case; the first provided that the widow, if there be minor children, shall sue within six months after the death; the second provided that every action instituted under the Act shall be commenced within one year after the cause of action accrued. The petition alleges that the decedent was survived by a minor child as well as by appellant [widow]. Therefore, at the time the cause of action accrued, appellant had six months in which to institute her suit after which if she failed to do so, the cause of action vested in the minor child.”

In Forehand v. Hall, 355 S.W.2d 940 (Mo.1962) the widow, who was the admin-istratrix of the estate, brought suit as ad-ministratrix, not as the widow, for damages for the wrongful death of Arthur Cobb. However, Arthur Cobb had died leaving surviving him a widow and a minor child. Neither commenced any action within the then one year maximum period. The court held: “Under § 537.080 his surviving wife was entitled to sue in her own name and right within six months after [the date of death], . . . This she did not do. The cause of action not having been appropriated by the surviving wife within the period authorized by the statute, the right to maintain the suit then passed to and vested in minor child . . .To avail himself of his cause of action [the] minor child . . . was ‘required to file suit within one year from the date of death of deceased.’ . . . This he did not do. The statute of limitations therefore ran on the minor child’s cause of action [one year after the death of the father].”

It thus appears that under the Wrongful Death Act as it existed prior to the amendments in 1967, the specified periods in which suits were permitted to be commenced by those designated, were periods of limitation, and failure to comply with the provisions resulted in a forfeiture of the right to maintain the suit for wrongful death.

By the amendments in 1967 which resulted in the provisions applicable to this suit, certain changes were made. Section 537.-080 now provides:

“Action for wrongful death — who may sue. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or fault is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered

“(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; provided, that in any such action the petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under this subdivision; and provided, further, that only one action may be brought under this subdivision against any one defendant ; or

“(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death then by the father or mother [other provisions not here applicable].”

Section 537.100 now provides that “Every action instituted under section 537.080 shall be commenced within two years after the cause of action shall accrue; . . . ”

There was no change in the basic theory of the Wrongful Death Act. The class of persons who had first priority to sue was changed, the time in which they were permitted to sue was extended to one year, and the maximum period in which any suit could be brought was extended from one year to two years. Therefore, the construction of the Wrongful Death Act prior to the 1967 amendments which resulted in the present Act is applicable to the present Act, subject only to the changes made in the definition of classes and the lengthening of the periods of limitation.

In Almcrantz v. Carney, 490 S.W.2d 59 (Mo.1973), the surviving spouse brought suit for the wrongful death of her husband more than one year but less than two years after his death. It was held: “In the present case, there was only one class in existence which was empowered to sue under subsection 1, and that was the surviving spouse who did sue within a two-year period. Under subsection 2, there was no person or class of persons who were entitled to sue as the result of any right conferred by subsection 2. We therefore hold that plaintiff’s time to sue was not shortened by subsection 2 since there was no other class of persons entitled to sue under that subsection.” The same result was reached under a similar set of facts in Montemayor v. Harvey, 490 S.W.2d 61 (Mo.1973).

Applying these principles to the facts of this case, we find that appellant, a member of the class of persons described in subsection 1, did not commence her suit for wrongful death within one year “after such death.” Assuming, but not ruling, that this period was extended for the reason that she was not born until approximately seven months “after such death,” she did not commence her suit within one year after her birth. There was in existence a member of the class of persons described in subsection 2, and this difference removes this case from the rule announced in the Almcrantz and Montemayor cases.

Perhaps without knowledge of the unborn child the mother of the deceased, prematurely as it turned out, filed suit during the first year following the death of her son. That was the period within which appellant could have, but did not, appropriate the cause of action. At the termination of the “one year” referred to in subsection 2 the statute of limitations ran on appellant’s cause of action, and the cause of action was subject to appropriation by the mother. Her suit was already pending, and it was her privilege to prosecute it to judgment or to settle pursuant to stipulation.

The judgment is affirmed.

SMITH, C. J. and NORWIN D. HOUSER, Special Judge, concur.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles RICE, Defendant-Appellant.
    No. 35613.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 22, 1975.

      Vogel & Frye, Wm. H. Frye, Cape Gir-ardeau, for defendant-appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Donald R. Bird, William F. Arnet, Asst. Attys. Gen., Jefferson City, James E. Moore, III, Pros. Atty., Stephen Taylor, Asst. Pros. Atty., Sikes-ton, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant appeals from his conviction and sentence of five years, after jury verdict, for exhibiting a dangerous and deadly weapon in a threatening manner. Sec. 564.610 RSMo 1969, V.A.M.S.

A Sikeston, Missouri, policeman identified defendant as the man who, after several minutes of conversation, pulled a handgun from his pocket and fired at the policeman. Although the occurrence was at night, the testimony indicated sufficient light for the policeman to make an identification, and his description of the assailant was corroborated generally by two other witnesses. The policeman said he saw a barrel in defendant’s hand from which two flashes emerged and two shots sounded. The shots and flashes were also corroborated. This is sufficient to support a conclusion that defendant had a gun. The firing of the gun at the policeman establishes the exhibition in a “threatening manner.” The evidence was sufficient to support the verdict.

Defendant also attacks the trial court’s refusal to suppress a pre-trial identification of defendant by the policeman. The motion makes it unclear whether it sought to suppress any identification or only an identification in the Charleston jail the day after the crime. Following an evi-dentiary hearing and denial of the motion to suppress, no objection was made to identification at trial or to references to the policeman having seen defendant in the Charleston jail. Such objections are required to preserve the alleged error for review and this case demonstrates the soundness of that rule. See State v. Caffey, 457 S.W.2d 657 (Mo.1970); State v. Triplett, 520 S.W.2d 166 (Mo.App.1975). In the absence of specific objections at trial, we are left in doubt which testimony defendant claims is inadmissible.

To the extent the claim of error is based upon the in-court identification, we find sufficient independent grounds for identification under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The in-court identification was based upon a three to five minute observance of the defendant at the scene by a trained observer. This was followed by a detailed, corroborated description of defendant sufficient to permit a police officer in another county to immediately recognize the man described when he received the information by telephone.

To the extent the attack is leveled at the admission of evidence of the jailhouse confrontation, it is unsupported by the record. The only evidence elicited by the prosecution of the policeman at trial was that he saw defendant in the Charleston jail the next day, that he was wearing the same clothes as on the night before, and that there was nothing “about his physical appearance on the 28th of July as opposed to the 27th of July.” At no time before the jury did the policeman indicate that he identified defendant on the 28th as his assailant, that he was requested to identify him or that he picked him out of a line-up. To the jury the policeman simply testified that he and another policeman went to Charleston after receiving a call that defendant had been picked up and was in jail at the Sikeston police request. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) deals with the vice of bolstering an in-court identification by reference to a line-up identification conducted illegally. The testimony here was not for that purpose and could not reasonably be concluded to have had that effect. We find no merit in defendant’s identification points.

Defendant complains that he was not afforded a speedy trial. Defendant was arrested July 28, 1972 and tried June 29, 1973. In the interim he had seven appointed counsel, six of whom he successfully requested be dismissed. Defendant was sent, at his request, to Fulton State Hospital for psychiatric examination and was there for two and one-half months. He requested and received a disqualification of the magistrate prior to preliminary hearing, a change of venue from Scott County to Cape Girardeau County, and a disqualification of the circuit judge. He filed numerous motions including several for psychiatric examination of the magistrate and of the trial judge (two of which he withdrew), a motion to disqualify the second circuit judge and motions to dismiss his final trial counsel. Defendant was given a hearing on all motions upon which he wished a hearing. While it is true that the obligation to assure a defendant a speedy trial rests upon the court and prosecutor, the delays caused here were the product of defendant’s action. In the posture of this case defendant’s real contention is that the court was too conscientious in hearing, deciding and on occasion sustaining defendant’s myriad of motions and in attempting to protect defendant’s rights. He is in no position to complain of the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 32 L.Ed.2d 101 (1972).

Four of defendant’s points raise the same basic problem, whether it was sufficient to submit only that the defendant’s action was done in a threatening manner, but not submitting that the action was done in a rude and angry manner. Defendant contends all three elements must be shown and submitted to the jury. We think not. The statute provides “rude, angry or threatening manner.” We see no reason why the disjunctive “or” should be construed to mean the conjunctive “and” here.

We have reviewed carefully defendant’s remaining points and find them without merit. Discussion of those points would have no precedential value and as to them we affirm in accord with Rule 84.16(b), V.A.M.R.

Judgment affirmed.

KELLY and STEWART, JJ., concur.


author: VANCE, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jessie Burchett REEDER, widow, et al., Appellees. Ford BURCHETT, Lessee, Cross-Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Cross-Appellee.
    Court of Appeals of Kentucky.
    April 25, 1975.
    Jim D. Robinson, Gen. Counsel, Dept, of Highways, Frankfort, Lewis D. Jones, Flemingsburg, Robert L. Woolery II, Ash-land, for appellant and cross-appellee.
    Thomas D. Theobald, Jr., Grayson, Ora F. Duval, Counts & Duval, Olive Hill, for appellees and cross-appellant.
   VANCE, Commissioner.

This is a condemnation case in which the Department of Highways appeals from a judgment in which it claims the damages are excessive and a lessee of mining rights in the property cross-appeals because he was not awarded any compensation for the destruction of his lease.

The Department of Highways took 16.77 acres for right-of-way purposes of a 79.8-acre tract of land owned by the appellees. At the time of taking the property was subject to a lease under which the cross-appellant, Ford Burchett, had a right to remove fire clay upon the payment of a royalty of thirty-five cents per ton to the owners. Ford Burchett had carried on mining operations on this property profitably for a number of years and at the time of taking was actually mining from the right-of-way. He had a long-term contract to supply fire clay to Louisville Fire Brick Works.

Since the beginning of the lease, Ford Burchett had mined 18,117 tons of fire clay from the subject property and had paid the owners $6,240.00 in royalties.

The witnesses for the Department of Highways valued the entire tract of land before the taking upon the basis that its highest and best use was a hill farm with second growth timber. They fixed the value of the entire tract of land before the taking, giving consideration to the fact that it contained deposits of fire clay subject to being leased but considering it as free and clear of the lease, at $3,000.00. They fixed the value of the land before the taking, subject to the encumbrance of the lease, at $3,000.00 and the value after the taking at $1,800.00 for a difference of $1,200.00.

The appellees’ witness, Brooks Wells, fixed the value of the land before taking, considering that it contained deposits of fire clay subject to being leased but valued as if free and clear of the lease, at $45,000.00. He fixed the value of the land before taking but considering it subject to the encumbrance of the lease at $45,000.00 and the value of the land after the taking at $2,500.00. The jury accepted the testimony of the witness Brooks Wells and returned a verdict fixing the valuations at exactly the amounts to which he testified.

The effect of this verdict is to award the landowners $42,500.00 for the taking. The lessee, Ford Burchett, is awarded nothing.

There is no merit to the grounds of appeal urged by the appellant, Department of Highways. A previous trial in which the lessee, Ford Burchett, sought damages against the highway contractor for mining clay from the right-of-way which was subject to his lease resulted in a judgment in favor of the contractor. This judgment was not res judicata of the issues here. The verdict is not excessive at first blush. Cf. Commonwealth, Department of Highways v. Friend, Ky., 500 S.W.2d 405 (1973).

The cross-appellant, Ford Burchett, complains of the injustice of his receiving no compensation for the destruction of his lease. The difficulty with his position is that he did not present any evidence whatever that his lease had any value. All of the witnesses as to valuation testified that the value of the property before taking was exactly the same subject to the lease as it was when considered free and clear of the lease. It was their opinion that the existence of the lease did not in any way diminish the value of the land.

Our decisions in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963) and Gulf Interstate Gas Company v. Garvin, Ky., 368 S.W.2d 309 (1963), clearly set forth the proper procedure for calculating the value of a leasehold estate in condemnation proceedings. We are not persuaded to depart from the criteria set forth therein.

The judgment is affirmed on both the appeal and the cross-appeal.

All concur.


author: HENRY, Justice.

text:
    George M. TIDWELL, Commissioner of Revenue, Appellant, v. Hyman L. COLLINS, etc., et al., Appellees.
    Supreme Court of Tennessee.
    April 14, 1975.

      R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for appellant.
    Dale C. Workman, Norbert J. Slovis, Lockett, Slovis & Weaver, Knoxville, for appellees.
   OPINION

HENRY, Justice.

This suit in chancery seeks a refund of state inheritance taxes paid under protest. The Chancery Court at Knoxville held in favor of taxpayers and the Commissioner of Revenue has perfected an appeal.

I.

Plaintiffs, co-executors of the estate of Milton Collins, brought suit against George M. Tidwell, in his official capacity as Commissioner of Revenue of the State of Tennessee.

In the preparation and submission of the State inheritance tax return, they valued the life estate of a seventy-seven year old female beneficiary at a figure which was substantially increased by the Commissioner. The resulting increase in the tax liability was paid under protest and this suit was instituted.

At issue is the proper application and construction of Sec. 30-1613, T.C.A., which reads in pertinent part as follows:

The value of every future, contingent or limited estate, income, interest or annuity for any life or lives in being shall, so far as possible, be determined by the rule, method and standard of mortality and the value set forth in the actuaries combined experience tables (sic) of mortality . (Emphasis added)

It should be emphasized that the phrase “the actuaries combined experience tables” not only appears in lowercase but in the plural.

It is the contention of appellees that since this is not capitalized and is in the plural the statute does not have reference to the Actuaries Combined Experience Table of Mortality appearing on page 1148 of Volume 1, T.C.A., nor to the Annuity Valuation Tables ensuing at page 1154. They insist that the statute refers to no particular table and attempt to validate their insistence by showing that this particular table is one hundred thirty-one (131) years old, is out of date and its application is unfair and prejudicial. They urge the use of the 1937 Standard Annuity Table.

It is the contention of the Commissioner that the tax liability is to be determined pursuant to Sec. 30-1613, T.C.A. with the use of the Actuaries Combined Experience Table of Mortality in accordance with the long standing policy and practice of the Department of Revenue.

The Chancellor, quite correctly, took judicial notice of the fact that there has been a substantial increase in life expectancy. He held that the phraseology of the statute did not indicate or specify a particular table; that the Actuaries Combined Experience Table was out of date and that it was more sensible and appropriate to use the 1937 Standard Annuity Table. The Chancellor commented upon, but did not attempt to construe the meaning of the phrase “so far as possible.” Accordingly, judgment was entered for plaintiffs.

II.

Section 30-1613, T.C.A. had its origin in Chapter 29, of the Public Acts of the Extraordinary Session of the 1929 General Assembly. It was carried forward into the official code of 1932 as Sec. 1270. It also appears in Michie’s Codes of 1932, 1934, and 1938, under the same number. At no time has the title of the mortality table appeared in capital letters, nor has it ever come before this Court in any reported decision.

At the very outset we dispose of the contention with respect to the failure to capitalize the mortality table by holding that the statute refers to and designates the Actuaries Combined Experience Table of Mortality.

The premier rule of statutory construction is to ascertain and give effect to the legislative intent. Lawrence v. Lawrence, 35 Tenn.App. 648, 250 S.W.2d 781 (1952). In doing this we look to the general purpose to be accomplished. State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956).

It was the obvious intent for the Legislature in the adoption of this statute to provide a fair method for the evaluation of future interests for purposes of taxation.

It is a fundamental rule of construction that statutes are not to be construed by strict and critical adherence to technical grammatical rules. The statute is intelligible and conveys a reasonable certainty of meaning, in its present form, insofar as the use of lowercases to designate the mortality tests is concerned. Were we to construe this statute so as to impute a legislative intent to refer to unidentified and unidentifiable mortality tables, the result would be an absurdity and a repugnance which would defeat the purpose of the statute. Such a construction would be impermissible. Samuelson v. State, 116 Tenn. 470, 95 S.W. 1012(1906).

It is unfortunate that the Legislature selected a table of mortality which was outmoded at the time of its selection; however, this is a matter which addressed itself to its judgment and discretion. We have neither the jurisdiction nor the disposition to revise and update the statute by substituting a current mortality table for one characterized by its patent antiquity. Moreover, any specified table will itself ultimately become obsolete.

The effect of the obsolescence of the specified table, however, is not fatal to a fair, reasonable and just application of the statute. Nothing contained therein accords any exclusivity to the Actuaries Combined Experience Table. The statute provides that the value of a life estate “shall, so far as possible, be determined” by the table. It was the evident intent of the Legislature, by the use of this language, to recognize that many factors enter into life expectancy, and to point to this particular mortality table as a guide in the determination of the value of any future interest.

If not so construed, this phraseology renders the statute ambiguous, inconsistent and repugnant, and its application would result in injustice and hardship. It is the duty of the Court to reconcile inconsistent or repugnant provisions; to place a construction thereon which will not be prejudicial to the public interest; to construe a statute so that no part will be inoperative, superfluous, void or insignificant, and the one section will not destroy another; and further to give effect to every word, phrase, clause and sentence of the act in order to carry out the legislative intent.

We have followed these recognized rules of construction. We are particularly concerned that this statute not be construed or applied in a prejudicial or oppressive manner. We are impressed with the manifest regard for justice which characterized the Chancellor’s approach to this problem. We are also impressed with the commendable candor of the presentation made by the Assistant Attorney General in oral argument at the Bar of this Court. These approaches are in the highest tradition of the Bench and Bar.

The Chancellor noted the increase in life expectancy. We have delved into the matter, with interesting results.

From Volume 13, Encyclopedia Britannica, Life Expectancy, page 1091, et seq., we find that the Neanderthal man had an average life expectancy of twenty years. A Roman citizen, born during the golden age of Rome, could expect to live twenty-eight years, and so with the men of Athens during the classical Greek period. In medieval England man’s average life span had increased to thirty-two years. By the year 1850, seven years after the adoption of the Actuaries Combined Experience Table, a female born in the United States had a life expectancy of 40.5 years. By 1900 this had increased to 50.07; by 1929, when the table was incorporated in the statute involved, it was 61 years, and during the years 1948-1960 it rose to 73 years.

The 1974 World Almanac, at page 1019, in a chart based upon information supplied by the Division of Vital Statistics, National Center for Health Statistics, shows that the life expectancy of a female born in 1972 is 75.2 years. Britannica’s 1974 Book of the Year, based on the United Nations Hemographic Yearbook for 1971, shows the life expectancy of a female born in the United States to be 74.8 years.

We cite these statistics to show the manifest injustice which would result from the rigid application of any precise formula in an area marked by substantial fluctuation. We do not believe the Legislature had any such intent.

In the case sub judice the Commissioner relied upon the Actuaries Combined Experience Table, which shows the remaining life expectancy for a white female, age 77 to be 5.76 years. The Chancellor applied the 1937 Standard Annuity Mortality Table which gives a similar female an expectancy of 10.59 years.

In Crenshaw v. Knight, 127 Tenn. 708, 156 S.W. 468 (1913) in an opinion by the late Chief Justice Grafton Green, the Court had under consideration Sec. 12 of Chapter 174 of the Public Acts of 1893, carried forward into Shannon’s Code as Section 737. This was the predecessor statute to sec. 30-1613 T.C.A. It provided that in valuing life estates

. the computation shall be made by the Carlisle Life Tables whenever the use of life tables is necessary or applicable.

In disposing of this case the Court said:

It will be observed that the section of the act of 1893 above quoted does not undertake to say that the Carlisle Life Tables should be used as a basis of computation in every case where it is necessary to value a life estate, but the provision is that such tables should be used whenever a case arises in which their use is necessary or applicable.
We have no hesitancy in concluding that the use of life tables is not necessary or applicable to this case.
The statutory direction to the appraiser is to fix the cash value of all annuities and life estates, and in making his computation to use the Carlisle Tables— not as a fixed standard in every case, but only in cases to the settlement of which life tables are applicable or necessary.
The rules with respect to the use of mortality tables in the determination of an expectancy of life are well settled in Tennessee. While the use of such tables is permitted, and their value recognized, they are not conclusive. It is in fact the duty of commissioners, juries, and courts, in passing upon such matters, to hear testimony as to the age, habits, and health of the person whose expectation of life is being considered, and to take into consideration the character of his occupation if it be hazardous. If it appears, without controversy, that such a person is in a very low state of health, debilitated, and incurably afflicted, with scant hold upon life and little promise thereof, it would doubtless be improper to consider life tables at all. Such a person could have no expectancy, within the purview of the rule of law which justifies the introduction of such tables.

We find the rationale of this case to be most persuasive.

We note that Chancellor Gibson, with his usual clarity, laid down rules for ascertaining the value of life estates. Sec. 1117, Gibson’s Suits in Chancery, Fifth Edition, reads in pertinent part:

Each case is determined on its own facts, the object being to ascertain the market value of the life estate in money, as practical businessmen would estimate it, if it were put on the market for sale.

Continuing, Chancellor Gibson lists various factors bearing upon the problem, viz: age, health, habits, longevity of parents and the presence or absence of hereditary disease, all of which combine to aid in a determination of the probable duration of life.

We accept these basic premises. All will concede that no prudent businessman, no experienced lawyer and no competent judge would view the life estate of a healthy, vigorous, robust person as being of equal value with that of a person of the same age in the last stage of a terminal illness, merely by blind adherence to an inexact, antiquated, and ever-changing formula. The Legislature had no such intent.

We, therefore, hold that Sec. 30-1613 T.C.A., taken in its entirety, contemplates the valuation of life estates, by taking into consideration the Actuaries Combined Experience Table of Mortality and such factors as will enable the Court to arrive at a reasonable conclusion as to the probable duration of the life of the life tenant. Such other factors include age, health, habits, longevity of parents, and the presence or absence of hereditary disease in the family.

The decision of the Chancellor is reversed, and this action is remanded for further proceedings consonant with the conclusions reached herein.

The costs of this appeal are taxed against the Department of Revenue.

SANDERS, Special Judge, and COOPER, BROCK and HARBISON, JJ., concurring.

      . Tennessee Elec. Power Co. v. Chattanooga, 172 Tenn. 505, 114 S.W.2d 441 (1937).

      . Bums v. Duncan, 23 Tenn.App. 374, 133 S.W.2d 1000 (1939).

      . Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956).

      . Mowers v. Aetna Cas. & Surety Co., 186 Tenn. 603, 212 S.W.2d 595 (1948).


text:
    Winfield DUNN et al., Appellants, v. Rosary T. PALERMO, Appellee.
    Supreme Court of Tennessee.
    April 7, 1975.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Advocate Gen., Nashville, for appellants.
    Martha Craig Daughtrey, Jayne Ann Woods, Nashville, for appellee.
   OPINION

HENRY, Justice.

This action presents the question of whether it is mandatory that a married woman assume the name of her husband.

I.

Rosary T. (Rose) Palermo is a Nashville lawyer. On 29 September 1973 she married Denty Cheatham, also a Nashville lawyer. She has continued to use and enjoy her maiden name, Palermo, professionally, socially and for all purposes.

Tennessee has a state-wide, compulsory Registration Law. Subsequent to her marriage, she lodged with the Registrar a change of address form listing her name as Palermo. She was advised that she was required to register anew under the surname of her husband, or have her name purged from the registration records. The Registrar was prompted by Sec. 2-206, T. C.A. which reads in pertinent part as follows :

2-206. Acts purging registration — Notice. — The registration of a person shall be purged:
(a) * * *
(b) Ninety (90) days after he changes his name by marriage or otherwise ; ■

Upon her refusal to so register, her name was purged from the registration list. Thus this action, wherein appellee seeks a declaratory judgment declaring that the defendants’ interpretation of Sec. 2-206, is erroneous, or in the alternative that this statute be declared violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and of the Nineteenth Amendment to the Constitution of the United States.

The Chancellor held: (1) that under the common law a married woman had the right to assume her husband’s surname but she acquired his name by repute and not by operation of law; (2) that Sec. 2-206 does not operate to change the name of a woman at marriage to that of her husband; and, (3) that the action of the Registrar in purging the plaintiff’s name was error and based upon an erroneous interpretation of the law.

Defendants have appealed, and insist that the statute dictates that a woman automatically take her husband’s name upon marriages and that this was a requirement of the common law.

The conclusions we reach necessarily involve a consideration of the statutory laws of the state, the common law and the relevance of custom, usage and tradition.

II.

Tennessee has no statutory enactment providing in haec verba that a woman automatically assumes her husband’s surname upon the event of marriage.

The statute under consideration, standing alone, does not mandate a change of name by marriage. It merely recognizes the prevalence of the virtually universal custom under which a woman normally adopts the surname of her husband. Moreover, it is equally susceptible of the construction that when either party to the civil contract of marriage elects to use the name of the other, the registration will be changed.

Sec. 59-708(d), T.C.A., relating to drivers’ licenses, provides for notification of the Department of Safety “when the name of a licensee is changed by marriage” of the “former and new names.” Again this statute merely takes cognizance of custom and does not mandate a change.

Change of name is authorized in adoption proceedings. (Sec. 36-101 et seq, T.C.A.)

The lackadaisical policy or relative insignificance of a change of name under Tennessee Law is best demonstrated by reference to Sec. 23-801, T.C.A., et seq, governing such changes. No standards, guidelines or criteria are established. All that is required is that a live person file a sworn application in the proper court of the county of his residence “giving his reasons for desiring the change.” There is no requirement that the reasons be good and sufficient; just that they be given. We assume that a married woman not enamoured with the custom, could get her name changed by “giving his reasons.”

Finally, in divorce cases, courts may restore the wife’s maiden name.

We proceed next to a discussion of the common law.

III.

A name is a word or phrase that consti-tütes the distinctive designation of a person or thing. Webster’s New Collegiate Dictionary (8th ed. 1974).

A person’s first name is generally known as his given, Christian or proper name and is awarded at, or soon after birth. His surname, patronymic or family name is that which is derived from the common name of his parents, or is borne by him in common with other members of his family.

The history of the use of names, in England, the country that has had the greatest influence upon the customs of the United States, and the source of our common law, is of interest and relevance.

Until about the time of the Norman Conquest, during Eleventh Century England, there was no such thing as a surname or family name, and each person was identified only by his Christian or given name. This led to substantial confusion resulting from the paucity of given names. The custom of using surnames developed slowly with only sporadic use of such names until the practice became prevalent about the beginning of the fourteenth century, A man was designated, in addition to his Christian name, in the great majority of cases, by the name of his estate, the place he was born, where he lived, or whence he had come, or by his calling as John the Smith, or William the Taylor, in time abridged to John Smith and William Taylor. Sometimes the occupation became the family name. A son would be distinguished from his father by calling him John’s-son or William’s-son. The Normans added “Fitz” to the father’s Christian name to designate the son, as Fitzgerald or Fitzhugh. Among the Celts of Ireland and Scotland, where each clan bore a surname, “Mac” was added to distinguish the son and “O” to distinguish the grandson, resulting in MacDonald and O’Donnell. Men also adopted surnames based upon physical characteristics (Long, Short), colors (Brown, Black), or moral attributes (Wiley, Moody, Wise), or of birds, animals or plants (Martin, Fox, Rose). This is a brief synopsis of the interesting developments of surnames. By the fourth year of the reign of Edward IV (1465), statutes were adopted requiring the use of surnames.

Apparently, surnames were adopted and abandoned at will, and it was not unusual for one person to have several surnames in the course of a lifetime. No requirement or custom demanded that a woman adopt the surname of her husband, and early records showed that husband and wife often were known by different surnames.

The family group did not necessarily use the same surnames, and men sometimes adopted the surnames of their wives. Property sometimes entered into the picture, and it was not uncommon for children to adopt the mother’s name where she owned the most property or had the largest estate.

The common law tended to place more stress on the baptismal than the surname. Coke instructs us:

And regularly it is requisite that speciall heed bee taken to the name of baptism for that a man cannot have two names of baptism as he may have divers surnames.

In Button v. Wrightman, Poph. 56 (1682), it was said:

The law is not so precise in the case of surnames, but for the Christian name, this ought always to be perfect.

Up to this juncture we have been primarily concerned with historical developments. We now turn to legal authorities.

The Tennessee Constitution of 1796, (Art. 10, Sec. 2) provided:

All laws and ordinances now in force and use in this Territory, not inconsistent with this constitution, shall continue to be in force and use in this State, until they shall expire, be altered, or repealed by the legislature.

Subsequent constitutions have contained substantially the same provisions.

We adopted the common law:

(A)s it stood at (1776) and before the separation of the colonies . . . (it) being derived from North Carolina, out of which state the State of Tennessee was carved. The Acts of North Carolina, 1715, c. 31, and Acts of North Carolina, 1778, c. 5, preserved the common law, while Session Act 1789, c. 3 provided for its continuance in the State of Tennessee. (Parenthetical date supplied).

Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965); Smith v. State, 215 Tenn. 314, 385 S.W.2d 748 (1965).

Thus it is that Tennessee, through North Carolina, adopted the common law of England as it existed in 1776. Case law research is next to impossible and text treatment in a relatively minor area of the common law is rendered extremely difficult by virtue of the antiquity of the cases. We can only turn to earlier English works and to the decisions from other jurisdictions.

Volume 12, Encyclopedia of the Laws of England, 53 (1898—London), under the heading, Surname, reads in pertinent part:

A person usually bears the surname of his father, but if he so pleases he may change it for another name, and it is not necessary that he should take any formal step to . effectuate this (Davies v. Lowndes, 1835, J. Bing. N.C. 618) unless, indeed he changes his name in compliance with the injunction of a name and arms clause .
⅜ ⅛ ‡ ‡ ⅛ ⅛
Except where the name to be assumed is prescribed by a name and arms clause, a person is at liberty to choose and bear any name he likes.
A woman on her marriage takes her husband’s name, and she retains it although the marriage may have been dissolved by divorce unless she has so far obtained another name by repute as to obliterate the original name. (Emphasis added). (Fendall v. Goldsmid, 1877, 2 P.D. 263).

The acquisition of a surname by repute figures very prominently in a change of name under English law.

The case of Cowley v. Cowley, (1901) A.C. 450, was heard before the House of Lords. Lady Cowley divorced Lord Cowley and married a commoner. Lord Cowley sued to restrain her from bearing his name and arms. During the course of the deliberations, Lord Lindley said:

Speaking generally, the law of this county allows any person to assume and use any name, provided its use is not calculated to deceive and to inflict pecuniary loss.

In Vol. 19, Halsbury’s Laws of England, 3rd ed., at page 829, Sec. 1350, it is said, among other things:

When a woman on her marriage assumes, as she usually does in England, the surname of her husband in substitution for her father’s name, • it may be said that she acquires a new name by repute. The change of name is in fact, rather than in law, a consequence of the marriage. (Emphasis added)

In Volume 20, American Journal of Comparative Law, page 606 (1972) it is said:

In English law, contrary to the law of most countries, there are no rules about legal names. The surname of any person, male or female, is the name by which he or she is generally known, provided that the name was not assumed for any fraudulent purpose. It follows that, if a man and a woman are cohabiting without marriage it is perfectly possible and not unusual for the woman to assume the same surname as the man. She usually does this by executing a deed poll declaring the name by which she wishes to be known. This is usually referred to as “changing one’s name by deed poll”. In fact the name is not changed by the deed poll. The name is changed by the reputation, of which the deed poll is good evidence.
The better opinion seems to be, and this is accepted by the learned editors of the latest edition of Halsbury’s Laws of England, that the assumption by a woman of her husband’s surname on marriage is a matter of custom and not of law. (emphasis supplied)

We now examine and analyze cases from various American jurisdictions. As will be seen, the opinions in these cases are not in harmony either as to results or as to the particular court’s view with respect to the common law.

Virtually all cases holding that a woman changes her name by marriage are bottomed on a faulty construction of Chapman v. Phoenix National Bank of N.Y., 85 N.Y. 437 (1881). This was a case wherein a woman sought to have a confiscation proceeding set aside because it was brought in her maiden name, her insistence being that it was invalid for lack of notice. Chapman was a North Carolina school teacher. She had purchased stock in the Phoenix Bank prior to her marriage, with the certificates being in her maiden name. Dividends were paid to her until January 1, 1861. Thereafter, the War between the States ensued, but Chapman took no part in what the New York Court injudiciously and with palpable historic ignorance called “the rebellion.” In February 1864 the Bank was notified that her stock and all accrued dividends were seized. Thereafter the United States Attorney filed a libel alleging that the stock belonged to “a rebel” and had been bought and used for the purpose of aiding, abetting and promoting “insurrection and rebellion.”

This case, in current parlance, probably should be denoted as “The Case of the Busy Lady”. It was alleged that she had acted as an officer of the rebel army and navy, as a member of the Confederate Congress, as a judge, commissioner and agent of the Confederate States, and as a member of a convention and judge of some one of the Confederate States. All these allegations were false.

Chapman, having no notice of the ensuing attachment and seizure, did not show up in court and default judgment was entered. When she learned of this action a year later, she brought suit.

The court denounced the sufficiency of the notice on numerous grounds. Among other things, it was held that there was no possibility of her having received the notice and she was “within the Confederate lines” and “could not have crossed the lines to respond thereto.” To bolster the court’s holding that she was- “in no way brought into court,” the effect of the stock being held in the maiden name of a married woman was considered. In this connection the court said:

For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby. (emphasis supplied)

This dictum was a triumph for this lady, but a travesty and a tragedy for her sex.

The appellants rely upon Roberts v. Grayson, 233 Ala. 68, 173 So. 38 (1937), insisting, in brief, that it holds that “a woman’s maiden name ceases upon her marriage, and she ceases to be known thereby”. With utmost deference to counsel we find nothing in the case to support this assertion. This case involved a claim against a decedent estate in which the deceased Hattie W. Jones, was designated as Mrs. J. C. Jones. The whole thrust of the Court’s holding was that the name used was sufficient to give notice stimulating inquiry. As a part of the holding the Court stated:

(A) married woman’s name consists, in law, of her own Christian name and her husband’s surname.

Roberts very obviously does not raise the question or discuss or decide the issue of whether a married woman automatically, and as a matter of law, assumes the surname of her husband.

Appellants also rely upon the case of Peoples ex rel. Rago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642 (1945), which is precisely in point.

Rago, a Chicago lawyer, who used her maiden name professionally, socially and exclusively after her marriage, was denied permission to remain registered under her maiden name. The Illinois statute is substantially the same as that of Tennessee, providing that “Any registered voter who changes his or her name by marriage . shall be required to register anew ”

The Court held the statute made it mandatory for Rago to re-register under the surname of her husband. Relying upon Chapman and other authorities, the Court said:

(I)t is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband’s surname, with which is used her own given name.

Further, the Court refers to

(T)he long-established custom, policy and rule of the common law among English-speaking peoples whereby a woman’s name is changed by marriage and her husband’s surname becomes as a matter of law her surname. (Emphasis supplied)

Our attention is called to an opinion rendered on February 13, 1974 by the Attorney General of Illinois, wherein he states:

I am aware of the decision in People ex rel. Rago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642, which holds that it is well settled by common-law principles and immemorial custom that a woman takes the surname of her husband. I do not believe this appellate decision should control. The other Illinois decisions and cases elsewhere establish that a woman may in fact retain her own name upon marriage with or without court proceedings. (emphasis supplied)

Appellee places heavy reliance upon State ex rel. Krupa v. Green, 114 Ohio App. 497, 177 N.E.2d 616 (1961), which fully supports her position. This was an action seeking to prohibit a Board of Elections from placing the maiden name of a married woman on the ballot. The court in pertinent part said:

“It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father.
“The Supreme Court of Ohio in the case of Pierce v. Brushart, 153 Ohio St. 372, at page 380, 92 N.E.2d 4, at page 8, said:
‘It is universally recognized that a person may adopt any name he may choose so long as such change is not for fraudulent purposes.’
“In England, from which came our customs with respect to names, a woman is permitted to retain her maiden surname upon marriage if she so desires.
“M. Turner-Samuels, in his book on ‘The Law of Married Women’ at page 345, states:
“ ‘In England, custom has long since ordained that a married woman takes her husband’s name. This practice is not invariable ; nor compellable by law. * * * A wife may continue to use her maiden, married, or any other name she wishes to be known by. * * *’

Krupa is the primary American authority cited in support of Stuart v. Board of Supervisors, infra, and is said to be “the only previous American decision to approach the issue of married women’s surnames from the general context of the legal history of surnames and to bring a searching common law analysis to bear upon the qeustion”.

Appellant cites Wilty v. Jefferson Parish Democratic Executive Com., 245 La. 145, 157 So.2d 718 (1963). The facts are somewhat unique. Vernon J. Wilty, Jr. sought to prevent his estranged wife’s name from appearing upon the ballot as a candidate against him, as Mrs. Vernon J. Wilty, Jr. He asserted that her correct legal name was Mrs. Laura Verret Wilty. The court decided the issue in favor of the husband.

While we do not regard this case as being precisely in point, we include it because it has been rather widely cited.

The Majority Opinion (the court produced five opinions) starts out by stating that “there is no definite law or decision in Louisiana as to what is the legal name of a married woman”. Justice Sanders, concurring in the results, takes issue, saying:

Although unnecessary for the decision, the majority cites, with apparent approval, the rule that by marriage a woman loses her maiden surname and takes her husband’s surname as her legal name. I am unable to agree that marriage has this effect under the law of Louisiana.
After marriage, the legal name of a woman continues to be her maiden name, or patronym. The surname of the husband is used only as a matter of custom to indicate the marital status of the wife. (Emphasis supplied). See Succession of Kneipp, 172 La. 411, 134 So. 376.

Kneipp is also widely cited in commentaries and cases but is not alluded to in the majority opinion. Wilty is simply not authority as to the issue in the case sub ju-dice. It is concerned solely with fairness in elections and as pointed out in the foregoing concurring opinion, the expressions with respect to the correct name of a married woman were unnecessary and are dicta.

Appellant strongly relies upon Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971). This class action, heard by a three-judge panel, challenges a requirement of the Alabama Department of Safety that a married woman use her husband’s surname on her driver’s license, and asserts that such a requirement violates the equal protection clause of the Fourteenth Amendment.

Citing Roberts v. Grayson, the Court notes that “Alabama has adopted the common law rule that upon marriage the wife by operation of law takes the husband’s surname.” The Court also observes:

Certainly the ctistom of the husband’s surname denominating the wedding couple is one of long standing. While its origin is obscure, it suffices for our purposes to recognize that it is a tradition extending back into the heritage of most western civilizations. It is a custom common to all SO states in this union. Uniformity among the several states in this area is important, (emphasis supplied)

We agree that we are dealing with custom and tradition. This is all Forbush actually stands for insofar as Rose Palermo’s suit is concerned. The Forbush court actually held that the requirement that a married woman obtain a driver’s license under her husband’s surname found a rational basis in administrative convenience. The Court does not discuss the existence of a rational basis for the common law requirement of Alabama, if there be such a requirement. There are other questions left unanswered, e.g., whether sex is a “suspect classification.”

Appellees place great reliance upon Stuart v. Board of Supervisors of Elections, 266 Md. 440, 295 A.2d 223 (1972). Mary Stuart, a married woman, registered to vote under her maiden name. Upon her refusal to re-register under the surname of her husband, her registration was can-celled. As Rose Palermo, she had used her maiden name exclusively and had never used her husband’s surname.

In upholding her right to register under her maiden name, the Maryland Court of Appeals, in a brilliant and scholarly opinion by Chief Judge Murphy said:

We have heretofore unequivocally recognized the common law right of any person, absent a statute to the contrary, to “adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued.” Romans v. State, 178 Md. 588, 597, 16 A.2d 642, 646.
Consistent with the “common law principle referred to in the Maryland cases, we hold that a married woman’s surname does not become that of her husband where, as here, she evidences a clear intent to consistently and nonfraudulently use her birth given name subsequent to her marriage. Thus, while under Romans a married woman may choose to adopt the surname of her husband — this being the longstanding custom and tradition which had resulted in the vast majority of married women adopting their husbands’ surnames as their own — the mere fact of the marriage does not, as a matter of law, operate to establish the custom and tradition of the majority as a rule of law binding upon all.
From a study of the English authorities cited to us by the parties and amici curiae, we believe the rule we enunciate today is founded upon the English common law incorporated into the laws of Maryland by Article 5 of the Maryland Declaration of Rights. (Emphasis supplied)

In Custer v. Bonadies, 30 Conn.Sup. 387, 318 A.2d 639 (1964), the Supreme Court of Connecticut followed Stuart and Krupa, supra.

Our investigation has led us to the case of Application of Wallace, 319 A.2d 793 (N.J.1974), wherein a married woman petitioned the Court for permission to resume the use of her maiden name. The Court held that she had assumed the husband’s surname on marriage and that to permit her to use her maiden name should be denied in the light of the confusion which would be created if children were born of the marriage. This case contains an excellent and exhaustive review of the authorities on each side of the question here presented.

One day following oral argument in Rose Palermo’s case, the Supreme Court of Wisconsin released its opinion in Kruzel v. Podell, 226 N.W.2d 458 (Wis.1975). Rose Kruzel, a married woman, petitioned the Court for change of name in order that she might use her maiden name. She had consistently and exclusively used her maiden name. The Court, in a most comprehensive opinion, held that “a woman upon marriage adopts the surname of her husband by thereafter customarily using that name, but no law requires that she do so. If she continues to use her ante-nuptial surname, her name is unchanged by the fact that marriage has occurred.”

We are indebted to the Wisconsin Court for calling our attention to a recent New York case, which casts doubt upon the precedent of the Chapman dicta. In this regard the Court said:

In the recent case of Application of Halligan [for Leave to Change Her Name to Sara Ryan], (1974) 46 A.D.2d 170, 361 N.Y.S.2d 458, a unanimous court held that Sara Ryan, married one Halli-gan, had the right to be known as Sara Ryan and by no other name, despite the marriage. No reference was made to the Chapman case.

And yet the erroneous statement of the common law in Chapman formed the predicate for a substantial number of decisions misinterpreting the common law of England.

On the common law theory of marriage the Court said:

It is undoubtedly true that the tendency of a wife to take her husband’s surname was spawned by the common law theory of marriage. Under that theory, upon marriage, a man and a woman became one and that one was the husband. In view of that theory of marriage, it is perhaps surprising that the English common law, out of which grew the theory of coverture, did not require that the husband’s surname be assumed in all cases by the wife. On the contrary, however, when the wife did assume the husband’s name, it was a matter of custom or practice and not of law.

Based upon an intensive investigation into the law from which we distill the cases herein cited — and upon excellent and elaborate briefs submitted by counsel for the respective parties — we conclude that at the common law, as of the time of the separation of the colonies, a woman acquired a new name by repute and that her name was thus changed in fact and not in law. The name change came as a result of custom and usage. It was windblown across the Atlantic Ocean in the same form and has become a universal practice in this country. But it has never had the force of law in Tennessee either under our common law or statutes.

We frankly concede that there is a division of authority as to this question. We are persuaded that we have adopted the better view; however, we make no claim to judicial infallibility. Irrespective of the common law, we hold that there is no legal requirement in Tennessee that a married woman automatically assume the surname of her husband.

This Court in the past has not hesitated to depart from the rigid common law where “the reason for the common law rule does not exist.” Brown v. Shelby, 206 Tenn. 71, 332 S.W.2d 166 (1960).

The common law does not have the force of Holy Writ; it is not a last will and testament, nor is it a cadaver enbalmed in perpetuity, nor is it to be treated like the sin of Judah — “written with a pen of iron and with the point of a diamond.” Jeremiah 17:1.

Former Chief Justice Frantz of Colorado, in his dissenting opinion in Tesone v. School Dist. No. Re-2, In County of Boulder, 152 Colo. 596, 384 P.2d 82 (1963), made this erudite observation on the common law:

“The common law of America is evolutionary; it is not static and immutable. It is in constant growth, going through mutations in adapting itself to changing conditions and in improving and refining doctrine. By its very nature, it seeks perfection in the achievement of justice.”

This is an eloquent description of the greatness and the glory of the common law.

We are urged to the conclusion that the custom of women adopting the surnames of their husbands has ripened into law and that, therefore, a wife is under a legal duty to adopt her husband’s surname. Quite aside from the fact that the law of customs relates essentially to commercial transactions, there is for consideration the fact that the mere custom of married women adopting their husband’s surnames, does not necessarily imply a rejection of their own names. We are cited to no case where the non-user of a name works a forfeiture of the right to its use. Moreover, married women have labored under a form of societal compulsion and economic coercion which has not been conducive to the assertion of some rights and privileges of citizenship. The application of a rule of custom and its conversion into a rule of law, would stifle and chill virtually all progress in the rapidly expanding field of human liberties. We live in a new day. We cannot create and continue conditions and then defend their existence by reliance upon the custom thus created. Had we applied the rules of custom during the last quarter of a century, the hopes, aspirations and dreams of millions of Americans would have been frustrated and their fruition would have been impossible.

We are admonished that permitting a married woman to retain her maiden name would result in chaos and confusion. In point of fact, permitting a married woman to retain her own name, would eliminate substantial administrative problems incident to a change of name. With the rapid increase of divorces and re-marriages in America today, with attendant name changes, we may reach the point of having to forbid a change of name by marriage in order to bring about stability, reduce confusion and preserve the identity of women who acquire a different name from each successive husband.

IV.

In summary, we hold that in this jurisdiction a woman, upon marriage, has a freedom of choice. She may elect to retain her own surname or she may adopt the surname of her husband. The choice is hers.

We hold that a person’s legal name is that given at birth, or as voluntarily changed by either spouse at the time of marriage, or as changed by affirmative acts as provided under the Constitution and laws of the State of Tennessee. So long as a person’s name remains constant and consistent, and unless and until changed in the prescribed manner, and absent any fraudulent or legally impermissible intent, the State has no legitimate concern.

We hold that appellee’s legal name is Rosary T. Palermo.

What we have said has no bearing on the continuing right of any individual to the use of a “stage name”, or “pen name”, or any designation by which he or she desires to be known in any trade, business, occupation or profession.

We do not reach the constitutional issues.

Affirmed at the costs of appellants.

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

      . See Sec. 2-201, T.C.A.

      .This history is a composite from the following authorities: 57 Am.Jur.2d, Names, Sec. 2 (1971); Arnold, Personal Names, 15 Tale L.J. 227 (1905); 32 Maryland L.Rev. 409 (1973); and Petition of Snook, 2 Pittsburg Reports 26 (1859).

      . Estimates range from 200 to 600, in general use.

      . 32 Maryland L.Rev. 413 (1973); p. Reany, the Origins of English Surnames 83 (1967).

      . Ibid.

      . Reany, 84, 85.

      . Coke, Litt., Sec. 3(a) as footnoted in 15 Yale L.J. at page 228 (1905).

      . See footnote, 15 Yale L.J. at page 228.

      . See Tennessee Constitution, Art. XI, See. 1.

      . Sec. 6-54, Election Code of Illinois.

      . 32 Maryland L.Rev. 409 (1973).

      . The administrative convenience test was rejected by the Supreme Court in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

      . In Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529 (1971), the California Supreme Court in finding sex to be a class which should be “suspect”, said:
      Sex . . . is an immutable trait, a status into which the class members are locked by the accident of birth. What differentiates sex from nonsuspeet statuses, such as intelligence or physical disability, and aligns it with the recognized suspect classifications is that the characteristic frequently bears no relation to ability to perform or contribute to society .

      Women, like Negroes, aliens, and the poor have historically labored under severe legal and social disabilities.


author: WALKER, Justice.

text:
    Darlene PRICE, Petitioner, v. The ESTATE of Welton Terry ANDERSON, Deceased et al., Respondents.
    No. B-4840.
    Supreme Court of Texas.
    May 7, 1975.
    Malcolm McGregor and Janet R. Pauls, El Paso, for petitioner.
    Scott, Hulse, Marshall & Feuille, Frank Feuille, IV, El Paso, for respondents.
   WALKER, Justice.

This is a suit to recover damages for personal injuries sustained by Darlene Price, petitioner, while riding as a passenger in an automobile driven by Welton Terry Anderson, who died several months after the accident. The original petition named “The Estate of Welton Terry Anderson” as defendant, and citation was served on the temporary administrator of the estate. We hold that this interrupted the running of the statute of limitations and that the claim was not barred when petitioner subsequently amended to name the temporary administrator as a defendant.

The accident occurred in El Paso on July 13, 1968, and petitioner filed suit against Anderson a few months later. Anderson died on December 3, 1968. His attorneys first filed a suggestion of death in accordance with Rule 152, Texas Rules of Civil Procedure, and on October 13, 1969, they filed a motion to dismiss for failure to join necessary parties within a reasonable time. On October 16, 1969, Paul Echols was appointed temporary administrator of the decedent’s estate by the County Court of El Paso County. The order of appointment authorized the temporary administrator to accept service of process, notify insurance carriers, and retain counsel in personal injury claims against the estate. Petitioner elected to take a non-suit on June 8, 1970, and then retained the attorneys now representing her.

The present suit was instituted on July 10, 1970, and the only defendant named in the original petition was “The Estate of Welton Terry Anderson.” It was further alleged, however, that the estate might be served with process through Paul Echols, temporary administrator, at the address given in the petition. Echols was served promptly and forwarded the citation to the attorney who had represented the decedent’s insurance carrier in the first suit. The attorney filed at different times on behalf of “the estate” an original answer, a first amended original answer, a motion in limine, a motion for continuance and supporting affidavit signed by the temporary administrator, and eventually on July 9, 1973, a motion to dismiss on the ground that the plaintiff’s cause of action was barred by the two-year statute of limitations.

Petitioner then filed her first amended original petition in which both the estate and the temporary administrator are named as defendants. The temporary administrator, who is respondent here, answered with a general denial and a motion to dismiss with prejudice, alleging that the temporary administrator is a necessary and indispensable party and that the suit against him is barred by the two-year statute of limitations. By an order reciting that the court had concluded that the motions to dismiss should be granted, the trial court rendered judgment that plaintiff take nothing against either the estate or the temporary administrator. The Court of Civil Appeals affirmed. 512 S.W.2d 78.

The parties recognized that the “estate” of a decedent is not a legal entity and may not properly sue or be sued as such. A suit seeking to establish the decedent’s liability on a claim and subject property of the estate to its payment should ordinarily be instituted against the personal representative or, under appropriate circumstances, against the heirs or beneficiaries. From this premise respondent argues that the present suit was a nullity until he was joined as a party, and that the cause of action against him as a representative of the estate was then barred by the two-year statute of limitations. We do not agree.

Petitioner has directed our attention to the so-called misnomer cases, which hold that the running of the statute of limitations is interrupted by institution of suit against the intended defendant under an incorrect name, provided the true defendant is not misled but appears and has an opportunity to defend the suit before the statute of limitations has run. See Butler v. Express Pub. Co., Tex.Civ.App., 126 S.W.2d 713 (wr. ref.); Callan v. Bartlett Elec. Co-op., Tex.Civ.App., 423 S.W.2d 149 (wr. ref. n. r. e.); Craig v. White Plaza Hotel, Inc., Tex.Civ.App., 289 S.W.2d 625 (wr. ref. n. r. e.); Law Reporting Co. v. Texas Grain & Elevator Co., Tex.Civ.App., 168 S.W. 1001 (wr. dis.); Pickering Mfg. Co. v. Gordon, Tex.Civ.App., 168 S.W. 14 (no writ); Weatherford, M.W. & N.W.R. Co. v. Crutcher, Tex.Civ.App., 141 S.W. 137 (no writ); McCord-Collins Co. v. Prichard, 37 Tex.Civ.App. 418, 84 S.W. 388 (wr. ref.); Prichard v. McCord-Collins Co., 30 Tex.Civ.App. 582, 71 S.W. 303 (no writ). See also Adams v. Consolidated Underwriters, 133 Tex. 26, 124 S.W.2d 840; Abilene Independent Tel. & Tel. Co. v. Williams, 111 Tex. 102, 229 S.W. 847. This rule is well settled and sound. See Stokes v. Beaumont, S. L. & W. Ry. Co., 161 Tex. 240, 339 S.W.2d 877. Various reasons have been given for the holdings in the misnomer cases. The courts have spoken of waiver, estoppel, mistake not discoverable in the exercise of reasonable diligence, and relation back of the amended petition in which the defendant is correctly named.

This is not a true misnomer case. The mistake in a misnomer case is one of fact, i. e. as to the correct name of the party intended to be sued. The mistake in the present case is one of law, i. e. as to the party that should be sued to establish the liability of a decedent and collect the claim out of property belonging to his estate. It could be argued that a mistake of this nature is inexcusable, but we do not attempt to explore that question here. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. See Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816, and authorities there cited. The original petition in the present case was filed within the period of limitation, and citation was served promptly on respondent, the person who should have been named as defendant. The purpose of the suit and the nature of the claim asserted were clear from the outset, and respondent answered for the “estate” and participated in all proceedings affecting the case.

Paraphrasing the language of the Court in Hallaway v. Thompson, supra, we think the purpose of the statutes of limitation will be given proper effect by holding that petitioner’s action was commenced with the filing of the original petition. Respondent was then notified of the nature of the claim and the occurrence or transaction out of which it arose. He and his attorneys, who have represented him throughout this litigation, were then given timely opportunity to interview witnesses and to obtain such evidence as they deemed advisable to defend the suit. While petitioner made a mistake in her original petition as to the defendant that should have been sued, respondent was at all times fully cognizant of the facts and could not have been misled as to the basis of the suit, nor was he placed at any disadvantage in obtaining relevant evidence to defend the same. Under these conditions, we think it would be a misapplication of the statutes of limitation to hold that petitioner’s action was barred.

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


author: ODOM, Judge.

text:
    Antonio Castanada GARZA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49877, 49878.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Rehearing Denied May 28, 1975.
    Kerry P. Fitzgerald, Dallas (Court-appointed on appeal only), for appellant.
    Henry Wade, Dist. Atty., Steve Wilen-sky and Bill Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions for burglary of a habitation. The appellant pled guilty and received thirty years in Cause No. 49,878 and ten years in Cause No. 49,877.

Initially, appellant complains he was improperly admonished upon his pleas of guilty because the trial court never specifically inquired as to whether his pleas were “influenced by any persuasion.” There has been no showing he was prejudiced or injured by the failure of the trial court to fully comply with Article 26.13, Vernon’s Ann.C.C.P. No objection was made at the time the pleas were accepted and no motions for a new trial were filed. The first ground is without merit and overruled. Guster v. State, 522 S.W.2d 494 (1975).

In his second ground of error, appellant asserts the trial court erred by its failure to halt the proceedings and conduct a separate pre-trial competency hearing. On April 29, 1974, his trial counsel filed a motion for appointment of a psychiatrist for an examination to determine present competency to stand trial. Dr. James P. Grigson, appointed by the court, examined the appellant and prepared a report wherein he concluded appellant was both sane and competent. The report indicated appellant was trying to “fake a psychiatric illness.” The appellant pled guilty to both offenses on June 28, 1974.

In Perryman v. State, 494 S.W.2d 542, this Court said, at page 544:

"If the trial court determines that no such issue [of present sanity] exists, his decision will not be disturbed in the absence of abuse of discretion.”

The fact that the court ordered a psychiatric examination of the appellant does not constitute a determination by the trial court of the existence of a sanity issue. Cf. Perryman v. State, supra. Indeed, in the instant case, there was no evidence to raise the issue of the competency of the appellant to stand trial. There has been no showing of an abuse of the court’s discretion with regard to the failure to hold a competency hearing.

The final asserted ground of error is that the indictment in Cause 49,878 is fatally defective because it omits the essential allegation required by V.T.C.A. Penal Code, Section 30.02 that the burglarized habitation was “not then open to the public.”

Section 30.02, supra, provides in part as follows:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or . . . ”

It can be seen from the grammatical construction of Section 30.02(a)(1) that “not open to the public” is meant to modify “building” and not “habitation.” If it were meant to modify “habitation” also, the comma would have been placed after “building” rather than after “habitation.” It was not necessary that the indictment allege that the habitation was “not then open to the public.”

The judgments in both causes are affirmed.

ONION, P. J., dissents to the disposition of the first ground of error.

      . One of the introductory provisions of the Penal Code provides:
      “(b) Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01 through 3.12 of the Code Construction Act (Article 5429b—2, Vernon’s Texas Civil Statutes) apply to the construction of this code.’’ V.T.C.A. Penal Code Sec. 1.05(b).
      Section 2.01 of the Code Construction Act says that “Words and Phrases shall be read in context and construed according to the rules of grammar and common usage.” (Emphasis supplied.)

      . The word “habitation” is defined in Section 30.01(1) of the new Penal Code:
      “(1) ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:


author: MASSEY, Chief Justice.

text:
    Wilma Faye NITSCHKE, Appellant, v. Daniel Edward NITSCHKE, Appellee.
    No. 19235.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 21, 1975.
    Nelson, Montgomery & Robertson, Wichita Falls, for appellant.
    Schenk, Wesbrooks, Smith & Douglass, Wichita Falls, for appellee.
   OPINION ON MOTION TO EXTEND TIME FOR FILING TRANSCRIPT AND STATEMENT OF FACTS

MASSEY, Chief Justice.

On this day this Court handed down its opinion in the case of Home Fund, Inc. v. Garland, 520 S.W.2d 939. We consider it most important in that it examines the state of the law which controls authority of a Court of Civil Appeals to grant a motion for extension of time within which to accept a late filed Statement of Facts.

It would be, of course, likewise applicable relative to a late filed Transcript.

We recognize that until the practicing bar takes note of the state of the law occasions for injustice might result. It has been long established but somehow ignored by this Court in liberality in the granting of extensions of time for filing records late where there was not resistance of the Motions for Extension of Time within which such might be filed.

Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) not only established the inapplicability of Texas Rules of Civil Procedure, rule 1, “Objective of Rules” (concerning when there might be a liberal construction of the Rules of Civil Procedure so as to accomplish a just, fair, equitable and impartial adjudication of the rights of litigants), but established es-sentiality of the requisite that there be establishment of “good cause” by a motion for an extension of time to support any order of the court allowing the late filing of a record in the appellate court under T.R.C.P. 386, “Time to File Transcript and Statement of Facts”. We are presently of the opinion that where requisite of the law is not satisfied complaint of our erroneous admission of a late filed record may not be waived and, in a proper case, may be made a ground for a motion for rehearing in the appellate court.

In the instant case we have Motions for Extension of Time for Filing both the Transcript and the Statement of Facts. Neither is verified. Neither has appended thereto any verified matter.

Relative to the Transcript the unsworn statement appears that counsel was of the opinion that the District Clerk’s office would mail the same direct to this Court, and that, besides, some documents were missing which should appear therein. The transcript, received after the 60-day period provided by Rule 386, but within IS days thereafter, was accompanied by the Motion for Leave to File.

There has also been received the un-sworn letter of the court reporter in which she takes occasion to state that she would be unable to finish the Statement of Facts before the first of March, 1975, which is beyond the 20 days requested by the motion. The Statement of Facts was not likewise forwarded, but a Motion for Extension of Time in which it might be admitted was received at the same time. Appended was the unsworn statement of counsel that exhibits and previously transcribed testimony had been misplaced, whereby an extension of 20 days in time would be necessary.

Both as applied to the Transcript and the Statement of Facts there is a failure to “establish” why either could not have been timely filed.

Nevertheless, under the law we have had occasion to examine in preparing the decision in Home Fund, Inc., supra, we have not the discretion to permit the late filing requested.

Both the motions are denied.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    Patsy Ruth BYNUM, Independent Executrix of the Estate of Robert Lee Dalby, Appellant, v. SIGNAL LIFE INSURANCE COMPANY, Appellee.
    No. 18557.
    Court of Civil Appeals of Texas, Dallas.
    April 10, 1975.
    Rehearing Denied May 1, 1975.

      Marvin G. Shwiff, Shwiff, Hurst & Addison, Dallas, for appellant.
    Earle Cobb, Jr., Cobb, Thurmond & Bain, San Antonio, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Patsy Ruth Bynum, independent executrix of the estate of Robert Lee Dalby, deceased, brought this action against Signal Life Insurance Company (hereinafter called Signal), seeking to recover the proceeds of a life insurance policy which had been issued by Signal to Robert Lee Dalby. The executrix appeals from a take-nothing judgment rendered by the trial court based upon a jury verdict. We reverse and render judgment for appellant.

The material antecedent facts are without dispute. On July 5, 1971, Robert Lee Dalby signed a written application for a. life insurance policy in the sum of $10,000 to be issued by Signal. In this application, after being questioned about a number of specific diseases, he was asked if he had “any other disease, injury, operation or deformity” to which he answered “No.” In another part of the application, he was asked if he had “any other impairment, sickness, injury in past five years,” to which he answered “No.” Contemporaneous with the execution of the written application, Dalby was given a complete physical examination by Dr. S. G. Khoury of Longview, Texas, at the request of Signal. As a result of this examination, Dr. Khoury reported to Signal that he found a “slight impairment to the left eye.” Under “explanation of any abnormal findings” the doctor stated:

In 1962 he received a blow to his head and probably resulted in the relatively poor vision left eye — he does wear glasses to compensate for the impairment vision—

Dr. Khoury testified at the trial of the case, by deposition, that Dalby had told him during the examination on July 5, 1971, that he had suffered from impaired vision to his left eye, all of which he,;*attributed to an automobile injury which he had previously sustained in 1962. Signal issued the insurance policy to Dalby on July 15, 1971, and this coverage was in full force and effect at the time of Dalby’s death on June 3, 1973. The death certificate revealed that the cause of Dalby’s death was a brain tumor.

After Patsy Ruth Bynum was named independent administratrix of the estate of Dalby, she made demand upon Signal for the proceeds of the policy but the company refused to pay and this precipitated the filing of the action. The only affirmative defense made by Signal was that “the policy of life insurance upon which plaintiff bases this suit was obtained by misrepresentations which were material to the risk, which were relied upon, and which were intended to mislead the defendant and did induce issuance of the subject policy.” Signal alleged the misrepresentations were that Dalby had a brain tumor since approximately 1962; that he had been treated for symptoms of brain tumor at the time of the completion of the application; that at the time of the completion of the application Dalby had symptoms-of brain tumor and that the representations made by Dal-by to the contrary were false.

In answer to special issues, the jury found: (1) that the representations made by Dalby in his application for the policy of insurance that he did not know of any impairment now existing in his physical health or condition were false; (2) that such representations were known by Dal-by to be false; (3) that such representations were material to the risk; (4) that Dalby did not make the representations inquired about in special issue number one with intent to deceive and mislead the Signal Life Insurance Company in issuing the policy in question; (5) that Signal Life Insurance Company relied on such representations in issuing the policy to Dalby; (6) that the representations made by Dalby in the application that he had not consulted a physician for illness during the past five yegrs was false; (7) that such representation was known by Dalby to be false; (8) that such representation was not material to the risk; and (9) that such representation inquired about in special issue number six was not made by Dalby with the intent to deceive and mislead the Company in issuing the policy.

Based upon this verdict, the trial court rendered judgment that the executrix recover nothing from Signal.

Appellant contends that the trial court should have rendered a judgment in favor of the estate, together with interest and attorney fees, because appellee Signal had failed to secure a favorable jury finding in special issue number four — one of the elements necessary to establish the defense of misrepresentation. We agree with appellant. Our Supreme Court, and numerous Courts of Civil Appeals, have consistently held that to avoid a policy of insurance on the grounds of misrepresentation, the insurance company must both plead and prove (1) the making of the representation; (2) the falsity thereof; (3) the materiality thereof; (4) the reliance thereon by the insurer; and (5) that the false statements must have been made wilfully and with design to deceive or defraud the insurance company or made wilfully and with the intention of inducing the insurer to issue him a policy. Clark v. National Life & Accident Insurance Co., 145 Tex. 575, 200 S.W.2d 820, 823 (1947); Allen v. American National Insurance Co., 380 S.W.2d 604, 608 (Tex.1964); Great Southern Life Insurance Co. v. Doyle, 136 Tex. 377, 151 S.W.2d 197, 201 (1941); American Central Life Insurance Co. v. Alexander, 56 S.W.2d 864, 866 (Tex.Com.App.1933, holding approved); Prudential Insurance Co. v. Levinson, 444 S.W.2d 811, 814 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Wolfing v. Prudential Insurance Co., 417 S.W.2d 498, 499 (Tex.Civ.App.—Waco 1967, no writ); Empire Life and Hospital Insurance Co. v. Shannon, 415 S.W.2d 532, 534 (Tex.Civ.App.—Amarillo 1967, no writ); Bankers Health and Life Insurance Co. v. Ryan, 411 S.W.2d 373, 374 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n. r. e.); 11 Baylor L.Rev. 236, 239-40 (1959).

Empire Life and Hospital Insurance Co. v. Shannon, 415 S.W.2d 532 (Tex.Civ.App.—Amarillo 1967, no writ), is a case very similar to that which we now consider. In that case the insurance company denied liability and pleaded the defense of fraudulent misrepresentation in that the insured, Shannon, had denied, in the written application, that he was suffering from diseases, including cancer. After the policy had been issued, it was discovered that the insured was suffering from cancer. The jury found that “Shannon had failed to include in his application all of his previous ailments and physical condition in answers to certain questions in the application for insurance,” but that such failure was not done wilfully and with intent to induce the insurance company to issue the policy. Chief Justice Denton, speaking for the Amarillo Court of Civil Appeals, reiterated the rule that to avoid a policy of insurance, false statements must have been made wilfully and with the intent and design to deceive or defraud or with the intent to induce issuance of the policy. Having failed to find this essential element of the defense of misrepresentation, the court held that judgment should have been rendered for the insured. It is interesting to note that in Shannon, as here, the insurance company contended that since the representations were known to have been false, it necessarily follows as a matter of law that such false representations were made with the intent to induce the company to issue the policy. The court in Shannon denied the contention pointing out that the record raised an issue of fact which the jury found adversely to the company’s contention.

In the light of this record, we conclude that the question of intent to deceive the insurance company and to induce it to issue the insurance policy is one of fact and not of law. Being one of fact, the jury considered the evidence and resolved the issue against Signal. There is ample evidence in this record to support the jury’s findings.

Appellant is also correct in her contention that there is no evidence that the appellee company relied upon the representation of Dalby in issuing the policy. The evidence is uncontroverted that Signal did not rely entirely upon the answers given by Dalby to the various questions propounded in the written application for the policy, but, instead, chose its own doctor to subject Mr. Dalby to a thorough physical examination which included the taking of a history of prior complaints and disabilities. While it is true that Dalby answered in the negative to the question of whether he knew that he had any existing physical infirmities or disabilities, it is likewise true that he frankly and honestly told Dr. Khoury, the insurance company’s examining physician, on the same day that he signed the application, and as a part of the history of his prior condition, that he had suffered from impaired vision in his left eye. Thus, the insurance company’s doctor was well aware of each and all of the symptoms related by Dalby at the time it issued its insurance policy. There is no evidence in this record that Dalby knew or realized that the slight impairment of vision in his left eye was a symptom of brain tumor. There is no evidence that Dalby was ever treated by any physician for a brain tumor prior to the issuance of the policy. Dr. Khoury, the insurance company’s examining physician, did not recognize the symptoms related by Dalby to be those of a brain tumor. The underwriter for the insurance company testified that the company invariably placed a high priority upon the report of the examining physician as a basis for the issuance of the policy. Thus, Dr. Khoury’s report which contained all of the facts known to Dalby concerning his physical condition was in the possession of the insurance company and subject to be evaluated prior to the issuance of the policy.

Appellee contends the deposition of Dr. Wensley, Dalby’s family physician, reveals that the deceased complained of headaches and dizziness during the physical examination which he administered on November 11, 1970, and that these complaints constitute physical impairments which the deceased failed to divulge in completing his insurance application. We conclude, however, that a person does not consider such common manifestations of discomfort to be a physical impairment. As Dr. Wensley stated, he heard “many times daily,” while administering medical examination, patients complaining of headaches, dizziness and lethargy.

Dr. Wensley did not associate Dalby’s occasional headaches or dizziness with a brain tumor or other bodily infirmities. He said if Dalby “had any organic brain problem he apparently didn’t know it at that time because he didn’t so indicate it to me.”

It is difficult to conceive how Signal could have been misled, deceived or induced to issue the policy by a false statement made by Dalby which the insurance company knew was false. If the person to whom a false representation is made is aware of the truth, it is obvious that he is neither deceived nor defrauded, and, therefore, any loss he may sustain is not traceable to the representation but is self-inflicted. Richardson v. Watson, 105 S.W.2d 473, 475 (Tex.Civ.App.—Texarkana 1937, writ dism’d); 18 Texas L.Rev. 507, 508 (1940). Likewise, a person cannot be induced to act upon a false statement which he knows is false.

For the reasons stated it follows that the trial court erred in rendering judgment for Signal.

During the trial of the case, it was stipulated between the parties that in the event of recovery by the administratrix that the sum of $2,500 would be a reasonable attorney’s fee to be awarded. It is, therefore, ordered that the judgment of the trial court be reversed and judgment is here rendered that Patsy Ruth Bynum, independent executrix of the estate of Robert Lee Dalby, the deceased, recover judgment against Signal Life Insurance Company in the sum of $10,000, representing the face amount of the policy of insurance, $1,200, representing statutory penalty and damages, and $2,500 attorney’s fees, or the total sum of $13,700, together with interest thereon at the rate of six percent per an-num from September 9, 1974 (the date of trial court’s judgment), until paid. It is further ordered that all costs incurred in this litigation be assessed against appellee Signal Life Insurance Company.

Reversed and rendered.