author: REINHARD, Judge.

text:
    Lorene RYAN, Plaintiff-Respondent, v. Pierre J. BAPTISTE et al., Defendants-Appellants.
    No. 38667.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 18, 1978.

      Stephen C. Murphy, Cook & Murphy, Clayton, for defendants-appellants.
    Lorene Ryan, pro se.
   REINHARD, Judge.

Defendants, Members of the Board of Managers of the Burtonwood Manor Condominium, have appealed from a judgment of the Circuit Court granting a mandatory injunction against them and denying their counterclaim for damages. The defendants were ordered to remove locks from the doors of the exterior entrance-ways of the building in which plaintiff’s condominium unit was located. Following several occurrences of vandalism and theft, defendants installed locks on the entrance-ways. Keys were provided to unit owners. Plaintiff objects to installation of the locks arguing that the presence of the locks infringed on the easement rights granted in the condominium By-Laws. In addition to granting injunctive relief to plaintiff, the court ruled against defendants on their counterclaim for damages to the locks and doors allegedly caused by plaintiff.

Burtonwood Manor Condominium was created by filing a “Declaration of Condominium By-Laws and Indenture” with the Office of the Recorder of Deeds of St. Louis County, pursuant to § 448.010, RSMo.1969. Plaintiff is one of the original purchasers and owned one of eight units in building 29 of the Burtonwood complex. The By-Laws provide for administration of the condominium by a nine-member Board of Managers. Article 7.1(n) states that among the powers and duties of the Board of Managers are “Promulgation of administrative rules and regulations and such reasonable rules and regulations as it may deem advisable for the use, operation, maintenance, conservation and beautification of the ‘Common Elements’ and for the health, comfort, safety, and general welfare of the unit owners and occupants of said property”.

Easements in and to all common elements are granted to unit owners in § 4.2 of the By-Laws. Maintenance and repair of the common elements is a duty reserved to the Board of Managers in § 7.1(e) of the ByLaws. Any structural alterations deemed “necessary or proper for the maintenance and operation of the property” may be undertaken by the Board “for the benefit of all unit owners” under § 7.1(f) of the ByLaws.

Plaintiff has since sold her condominium unit and no longer lives in Burton-wood. However, live issues remain. Defendants posted a bond pending this appeal, and plaintiff might assert a claim against defendants for damages incurred during the pendency of the appeal and prior to the sale of her unit if the appeal is dismissed for mootness. See Morrison v. Hess, 231 S.W. 997 (Mo. banc 1921). There also remains the matter of defendants’ counterclaim against plaintiff. The case is not moot and we will decide it on the merits. Adamick v. Ferguson-Florissant School District, 483 S.W.2d 629 (Mo.App.1972).

This case requires a consideration and balancing of rights of the individual unit owner and of the entire residential community. Members of the Board of Managers are elected by the condominium owners to oversee and protect the rights and interests of the community at large. Accordingly, the Board is vested with considerable discretion with which to execute its managerial and administrative responsibilities. The individual unit owner, though extended certain rights and responsibilities, does not possess absolute control over his own property common to all owners. The condominium By-Laws represent a form of private law making, and individual owners come together and agree to subordinate some of their traditional individual ownership rights and privileges when they choose this type of ownership experience.

“[Ijnherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.”

Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla.App.1975).

The Board of Managers of Bur-tonwood is the designated decision-making body of the condominium association and exercises broad discretion in the maintenance and operation of the development. Nevertheless, the Board is not at liberty to promulgate arbitrary and capricious rules which bear no relationship to the health, happiness and enjoyment of life of the unit owners. Thus, in reviewing the action of the Board in this case, we believe the standard to be applied is reasonableness. Hidden Harbour Estates, Inc. v. Norman, supra. See also Forest Park Cooperative, Inc. v. Hellman, 2 Misc.2d 183, 152 N.Y.S.2d 685 (1956); Amoruso v. Board of Mgrs. of Westchester Hills Con., 38 A.D.2d 845, 330 N.Y.S.2d 107 (1972).

Applying this standard, we conclude the installation of the locks on doors providing entry to common passageways of the condominium building was a reasonable exercise of the Board’s authority. The need for locked entranceways was indicated by several reports of vandalism and theft. While the locks could be expected to create a minor inconvenience, it cannot be concluded .they in any way interfered with residents’ easement rights or constituted an unreasonable infringement upon their use and enjoyment of the premises. Rather, the decision to install the locks was a reasonable attempt to increase the security and thereby protect the rights and interests of the residential community.

The injunction must be dissolved, and in view of our determination that the action of the Board was reasonable, the trial court’s judgment in favor of plaintiff on defendants’ counterclaim must be reversed. The cause is remanded with instructions to dissolve the injunction and enter a judgment for defendants on plaintiff’s petition. Defendants’ counterclaim is remanded for a new trial.

STEWART, P. J., and SIMEONE, C. J., concur.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    Phillip WRIGHT, Plaintiff-Appellant, v. MGK, INC., and Marjorie Katz, Defendants-Respondents.
    No. 38845.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 18, 1978.
    Julius H. Berg, P. C., Mark D. Hirschfeld, Clayton, for plaintiff-appellant.
    Goldstein & Price, Elmer Price, Robert D. Nienhuis, St. Louis, for defendants-respondents.
   McMillian, Judge.

Appellant, Phillip Wright, appeals from a judgment entered by the circuit court sustaining respondents, MGK, Inc. and Marjorie Katz’s motion to dismiss appellant’s claim for failure to state a cause of action. Because we find the contract in question to be a private, commercial employment agreement and not a labor contract, we reverse and remand.

Appellant’s petition sought $25,000 damages for breach of contract. The petition stated that the parties entered into a written contract in which respondent agreed to employ appellant as a salesman and to pay him compensation at the rate of $500 per week for the term of the contract.

The contract was typed on a printed form of the NAWCAS Guild. At the top of the agreement, in bold type, was the following:

“NAWCAS GUILD STANDARD CONTRACT AGREEMENT”

In addition, the agreement contained an arbitration clause which read as follows:

“12. The parties hereto agree to arbitrate any dispute arising out of any of the terms and provisions of this agreement. The parties may refer such dispute to the NAWCAS Guild for arbitration under procedures established by the NAWCAS Guild. If this is not mutually agreeable to both parties, they may refer such dispute to an arbitrator mutually agreeable to both parties. If both parties cannot agree upon one arbitrator, then, each party shall appoint one arbitrator, and the two arbitrators so selected shall select a third person to compose a panel of three arbitrators, who shall hear and determine the dispute, the cost of such arbitration hearing to be borne equally by both parties. The decision of any such arbitration hearing shall be final and binding upon both parties.”

The trial court dismissed the appellant’s claim because the appellant failed to submit his claim for wages allegedly due under the contract to arbitration before filing suit.

On appeal, appellant raises two points: First, that the trial court erred in sustaining respondents’ motion to dismiss because under § 435.010 RSMo 1969, the agreement could not prevent appellant from filing suit on the contract without prior arbitration. Secondly, that the agreement to arbitrate did not state expressly, or by necessary implication, that arbitration was a condition precedent to appellant’s filing suit.

As to the first issue, appellant argues that an agreement to arbitrate cannot bar a party from first filing suit on a contract, regardless of the contract’s provision for arbitration, citing § 435.010 RSMo 1969. This section provides—

“Any contract or agreement hereafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action.”

Conversely respondent argues that the agreement involved is a labor contract and thus § 435.010 is inapplicable, and consequently the arbitration clause is binding. Therefore, the crux of the first issue is whether the agreement is a labor contract or a commercial employment contract. If the former is the case, then § 435.010 is clearly inapplicable. See Grubb v. Leroy L. Wade & Son, Inc., 384 S.W.2d 528, 535 (Mo.1964).

A labor agreement is definitely distinguishable from a commercial employment agreement with each having its own separate rules and principles. A labor agreement, a term used synonymously with the term collective bargaining agreement, is described as an accord between the employer and the bargaining representatives of the employees as to the general terms and conditions which will govern and control individual contracts of employment. J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 335, 64 S.Ct. 576, 88 L.Ed. 762 (1943). The labor contract becomes part of the contract of employment with its terms consolidated within the individual hiring agreements. Arbuckle v. Fruehauf Trailer Co., 372 S.W.2d 470, 473 (Mo.App.1963). See also Baron v. Kurn, 164 S.W.2d 310 (Mo.1942).

In J. I. Case Co., supra, at 334-5, 64 S.Ct. at 579, Mr. Justice Jackson pointed out the distinction between the two concepts:

“Contract in labor law is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment. . . ”

Applying these general principles to the present situation, the agreement at issue is a contract of employment rather than a labor contract. There was no accord shown between MGK, Inc. and the NAW-CAS Guild which was incorporated into the contract between the appellant and MGK, Inc. In fact, the NAWCAS Guild was identified neither on the signed contract, nor in the pleadings. In addition, it was neither shown nor alleged that the appellant was even a member of the NAWCAS Guild, or any other union which might have a collective bargaining agreement with MGK, Inc. Thus, the contract appeared to refer to an individual contract for employment, rather than a labor contract which would have embraced a union negotiated collective bargaining agreement. Because there is no collective bargaining agreement involved § 435.010 is applicable, and accordingly, any requirement to arbitrate is unenforceable.

The respondent argues, however, that the Grubb case is controlling here, and that § 435.010 is inapplicable. The present fact situation is clearly distinguishable from the situation presented in Grubb. In Grubb the Missouri Supreme Court held that § 435.010 was only applicable to commercial arbitration clauses, and not to labor arbitration agreements. The reason for this being that such clauses in labor contracts are controlled by the great body of federal law which has been drafted to control the enforcement of collective bargaining agreements. Grubb, supra, at 534. Grubb, however, involved a suit for breach of a collective bargaining agreement brought by five union members against their employer. Thus, Grubb presents a situation in which a labor contract is involved, rather than an individual contract for employment as presented here.

The second issue raised is whether the agreement to arbitrate contained in the contract stated an express or implied condition precedent to appellant’s filing suit. Because § 435.010 has been found to be applicable, we need go no further than the pertinent language of this statute. Section 435.010 provides that “. . . and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action.” (Emphasis added.) The statutory language controls here, and accordingly, it was not necessary that appellant seek arbitration before bringing action on the contract.

Accordingly, the trial court’s order dismissing appellant’s action for failure to state a claim is reversed.

Judgment reversed and cause remanded.

CLEMENS, P. J., and SMITH, J., concur.


author: HARBISON, Justice. HENRY, Chief Justice,

text:
    Ben Richard MAPLES, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    April 24, 1978.
    Jerry K. Galyon, Sevierville, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Al Schmutzér, Jr., Dist. Atty. Gen., Sevierville, for respondent.
   OPINION

HARBISON, Justice.

Petitioner was fined for contempt as the result of admittedly fraudulent divorce proceedings which he instituted in a chancery court and in which he gave false testimony. Subsequently he was convicted of the statutory offense of perjury for that false testimony. His principal insistence on appeal is that the criminal prosecution was barred on principles of double jeopardy. The Court of Criminal Appeals affirmed the conviction. We granted certiorari to give further consideration to that question and also to the manner in which petitioner’s petition for probation was handled in the trial court.

On October 17, 1974, petitioner instituted a divorce action in Union County, making sworn allegations that his wife was a resident of that county. She filed an answer admitting that and other allegations. Four days after the complaint was filed, there was an oral hearing in which petitioner testified that his wife was a resident of Union County. He was awarded a divorce, and the court approved a property settlement, which stated that petitioner’s wife did reside in that county.

Subsequently, petitioner’s wife died, and in September 1975 he filed a petition under Rule 60, Tennessee Rules of Civil Procedure, to set aside the divorce decree which he had obtained under the foregoing circumstances. He testified at the hearing on that motion that he had sworn falsely to the Chancellor in the previous proceedings, and it was made to appear at that time that neither petitioner nor his wife had ever at any time resided in Union County. Although the Chancellor granted petitioner the relief which he sought, and set aside the divorce decree as having been fraudulently obtained, he nevertheless fined the petitioner fifty dollars for contempt of court and further directed that an investigation be made as to whether criminal proceedings should not be instituted against petitioner. Unfortunately, the decree which the Chancellor entered did not specify the particular conduct of petitioner which was found to be contemptuous, nor the exact statutory provision upon which the Court relied. He could have cited the petitioner for the filing of a fraudulent divorce proceeding in the Chancery Court, or the citation could have been for the false testimony given at the divorce hearing or for the procuring and obtaining of the final divorce decree.

The record is clear that the indictment on the perjury charge was based upon the 'false testimony given by petitioner at the divorce hearing on October 21, 1974.

While the record is not free from uncertainty in this regard, the Court of Criminal Appeals treated the contempt citation as having been based upon the same conduct as the perjury charge, that is, the oral testimony given by petitioner at the divorce hearing. It nevertheless concluded that the prosecution was not barred by the double jeopardy provisions of the state or federal constitutions, and, in the opinion of the majority, that conclusion was correct.

The statutes under which petitioner apparently was cited for contempt provide:

“The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
“(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice.”
“(4) Abuse of, or unlawful interference with, the process or proceedings of the court.” T.C.A. § 23-902.

The statutory crime of perjury is defined as follows:

“Whoever [upon oath or affirmation] . shall upon such oath or affirmation, swear or affirm willfully, corruptly and falsely touching a matter material to the point in question, shall be guilty of perjury, and on conviction shall be imprisoned in the penitentiary for not less than one (1) year nor more than five (5) years.” T.C.A. § 39-3301.

In the opinion of the majority, even if it is assumed that the contempt citation rested upon the false testimony given at the divorce trial, nevertheless there has not been demonstrated a sufficient identity between this summary contempt penalty and the statutory offense of perjury to establish a defense of double jeopardy. The purposes of the general statutes authorizing a court to punish for abuse of its processes and those creating and prescribing punishment for various indictable offenses are so entirely different, and designed to accomplish such wholly different purposes, that we do not find any violation of constitutional principles in imposing punishment upon an offender under both sets of statutes.

There can be no question that the punishment given for contempt was summary in nature and that it was imposed immediately by the Chancellor upon his learning of the facts. The record does not present a case of a formal citation for contempt or a show-cause order and trial thereon.

In a few cases punishments for contempt imposed following such formal citations have been held to preclude criminal prosecutions for statutory crimes based on the same conduct. Thus in the case of People v. Gray, 36 Ill.App.3d 720, 344 N.E.2d 683 (1976), the defendant has been enjoined from going about or molesting his wife in a divorce proceeding. He violated this order, struck and then shot his wife, and was cited for contempt of court. There was a formal trial and hearing, following which he was found to be in contempt of the divorce court and sentenced to serve six months in jail.

Thereafter the defendant was indicted for aggravated battery and attempted murder of his wife. The Illinois Court of Appeals held that under those circumstances the contempt citation did prevent the criminal prosecution. It should be noted in that case, however, that the contempt did not occur in the presence of the court, nor was the punishment summarily imposed, but followed a formal citation and trial.

In that case the court recognized and distinguished several federal cases where summary punishment for contempt was held not to preclude later criminal prosecution based upon the same conduct. Illustrative of these cases is U. S. v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963). In that case an obstreperous defendant, during the course of a long criminal trial, stood up in the courtroom, took the witness chair on which he was sitting, and hurled it at the United States Attorney. He threw the chair some fifteen feet, and it struck the jury rail about three feet from the lectern where the attorney was standing. For this disregard for the dignity and decorum of the court, the defendant was summarily held in contempt and sentenced to one year in prison. Thereafter he was indicted for the use of force in assaulting or interfering with a federal official in the performance of his duties. The defense of double jeopardy was interposed but was overruled in a careful and thoughtful opinion by the Court, in which the following observation was made:

“Let us consider by way of illustration the consequences of upholding Mirra’s claim in the context of an extreme but not wholly improbable case that could have arisen after, and out of, Mirra’s contempt conviction. Assume that Mir-ra’s projectile had received more accurate a propulsion and had scored on its intended target — the Assistant United States Attorney. And assume further the grizzly and morbid fact that the Assistant United States Attorney had sustained an injury which ultimately proved fatal. To sustain Mirra’s claim would, in effect, grant a summary contemnor immunity from a homicide prosecution — an unconscionable result. Merely to state the case suffices to reveal what must perforce to be the answer to Mirra’s theory.” 220 F.Supp. at 366.

See also U. S. v. Rollerson, 308 F.Supp. 1014 (D.D.C.1970), aff’d, 145 U.S.App.D.C. 338, 449 F.2d 1000 (1971); O’Malley v. U. S., 128 F.2d 676 (8th Cir. 1942). These cases stress that in summary contempt cases, followed by later criminal proceedings, the accused is not subjected to the successive trials and prosecutions forbidden under the double jeopardy clause.

The elements necessary to sustain a conviction for the statutory crime of perjury are wholly different and distinct from those necessary to justify imposition of a contempt citation under T.C.A. § 23-902. In order for perjury to amount to contempt, there must be more than false swearing. There has to be an additional element of obstruction of justice or interference with the processes of the court. For example, false swearing could occur in a deposition, in an answer to an interrogatory, in an oath to a deed, or in some other context which might justify a conviction for perjury, but which would not necessarily amount to a contempt of court.

In the case of Ex parte Hudgings, 249 U.S. 378, 383-84, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919), the Supreme Court of the United States observed:

“An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted — a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt, there must be added to the essentia] elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. . . . It is true that there are decided cases which treat perjury, without any other element, as adequate to sustain a punishment for contempt. But the mistake is, we think, evident, since it either overlooks or misconceives the essential characteristic of the obstructive tendency underlying the contempt power, or mistakenly attributes a necessarily inherent obstructive effect to false swearing.”

See also In re Michael, 326 U.S. 224, 227-28, 66 S.Ct. 78, 80, 90 L.Ed. 30 (1945), where the Court expressly held that a witness could not be punished for contempt solely because he had committed perjury. The Court said:

“All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact-finding tribunal must hear both truthful and false witnesses.”

In the case of United States v. Essex, 407 F.2d 214, 217 (6th Cir. 1969), it was stated that:

“It is now well beyond dispute that false testimony alone will not amount to contempt of court.”

In that case the filing of a false or perjured affidavit was held insufficient to sustain an obstruction of justice charge. After discussing the case cited above the Court said:

“[T]he above . . . cases stand firmly for the rule that perjury alone lacks the element of obstruction which is the essence of contempt.” 407 F.2d at 218.

See generally 17 Am.Jur.2d Contempt § 33 (1964), where it is stated:

“Making a false statement under oath may constitute contempt, notwithstanding that the conduct may also be a crime, such as perjury or false swearing.”

See also Annot. 89 A.L.R.2d 1258 (1963).

Although the matter has not been considered in great detail in previous reported opinions, the courts of this state have consistently held that the imposition of a contempt citation does not preclude a later criminal prosecution. In the case of Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076 (1903), it was emphasized that the offenses of contempt and subornation of perjury are

“. . . created upon different principles, for different purposes, are tried and punished differently, and a conviction or acquittal of one is no bar in a prosecution for the other.” Ill Tenn. at 382-83, 77 S.W. at 1077.

See also Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49 (1930); Underwood v. State, 187 Tenn. 530, 216 S.W.2d 26 (1948); Barrowman v. State, 214 Tenn. 408, 381 S.W.2d 251 (1964).

We find no reason to depart from the earlier cases in this state, nor are we persuaded that the series of Colombo cases, relied upon by petitioner, require that result. Those cases involved a series of separate contempt citations for the same conduct, which we regard as a different problem from that presented here.

Further, we do not believe that the case of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) is inconsistent with the result reached here. In that case the same conduct was held to violate two different statutes, serving two different purposes, and punishment for violation of both statutes was expressly held not to violate the double jeopardy clause. Specifically, there was a sale of contraband drugs without a written order from the purchaser and not in the original package. This one transaction was held to violate both a federal statute prohibiting sales other than in the original package and a statute prohibiting a sale without a written purchase order. The Court there noted the distinctions in the elements of the offenses and in the proof necessary to establish each, and it affirmed both convictions based upon the single drug sale.

In the case of State v. Black, 524 S.W.2d 913 (Tenn.1975), the Court relied upon and followed the Blockburger decision, and pointed out that in each case where a double jeopardy issue is presented for violation of two separate statutory provisions, a close and careful analysis of the elements of each statutory offense and of the proof necessary to establish each is required.

The summary power to punish for contempt committed in the presence of the court is quite different from that exercised in cases of so-called “indirect” contempt. It is a power which in our opinion, is indispensable to the orderly dispatch and conduct of the business of the courts. Its use is not intended to, nor should it, immunize the contemnor from prosecution for violation of specific provisions of the criminal code. Certainly, in the instant case, the action of the Chancellor was not so intended, nor do we believe that it had that legal effect.

We have considered the other assignments of error filed by the petitioner and find them to be without merit, except an assignment dealing with the manner in which his petition for probation was disposed of in the trial court. It was apparently disposed of without a separate hearing, and even before a formal petition for probation had been filed. We find this to be irregular, and we remand the case to the trial court with directions that a proper hearing be held upon the petition for probation which has been filed,, and any proper amendments thereto, and the entry of appropriate findings of fact and conclusions of law thereon. With this modification, the judgment of the Court of Criminal Appeals is affirmed at the cost of petitioner.

COOPER, FONES and BROCK, JJ., concur.

HENRY, C. J., dissents.

HENRY, Chief Justice,

dissenting.

I respectfully dissent.

On October 17,1974, petitioner, a resident of Pigeon Forge, Sevier County, filed his sworn complaint in the Chancery Court at Maynardsville, in Union County, seeking an absolute divorce. Among other sworn allegations were these:

a. that his wife was a resident of Union County, Tennessee;
b. that he and his wife “have been separated since October 1, 1974, and have not lived together since that time.”

I digress to point out that in point of fact each of these allegations was willfully, knowingly and flagrantly false.

On the following day, October 18, 1974, petitioner’s wife filed her answer admitting the statistical information contained in the complaint. This, of course, constituted a direct admission that she was a resident of Union County. Her answer contains no denial of the allegation pertaining to the separation of the parties, nor does it contain a general denial.

The hearing was conducted on October 21, 1974; and, by decree entered December 2, 1974, petitioner was granted a divorce. This decree approved and incorporated a property settlement agreement executed on October 16, 1974, which, inter alia, set out that petitioner’s wife, Freda S. Maples, was a resident of the “County of Union.” At the hearing petitioner testified that his wife was a resident of Union County.

Freda S. Maples died on July 18, 1975, under circumstances not here pertinent and not fully disclosed by the proof.

On September 16, 1975, petitioner filed his Rule 60.02 motion alleging that “the final decree was entered by mistakes; inadvertence; excusable neglect; and/or fraud, by reason that the complaint was filed in Union County, Tennessee, to avoid embar-assment, and to pacify the defendant’s emotional state of mind.”

It is further alleged that “the parties were following advice of counsel,” and that the court “does not have the proper venue and jurisdiction over the parties as provided by T.C.A. 36-804.” It was further averred that the parties continued to live together as man and wife.

On the hearing conducted pursuant to this motion, the petitioner told the presiding Chancellor, William H. Inman, “Judge, I just lied to you.” The conclusion reached in the majority opinion to the contrary notwithstanding, this was clearly “the particular conduct of petitioner which was found to be contemptuous,” as was found by the Court of Criminal Appeals.

It appears from the proof, somewhat sketchily, that this whole sordid affair was a scheme concocted by petitioner and his wife, with the connivance and counsel of his then attorney (not counsel of record before this Court) to protect their property against the claims and demands of creditors, by transferring title to valuable properties to the wife. This iniquitous scheme brings into play serious questions of ethics and erudition of counsel. (Again, not counsel before this Court.)

After the hearing, Chancellor Inman set aside the property settlement and divorce as being “obtained fraudulently because the defendant was a citizen and resident of Sevier County, Tennessee, as admitted under oath by the plaintiff.” He further adjudged petitioner to be in contempt of court, fined him $50.00 and bound him over to the next term of the grand jury.

While petitioner swore falsely in two particulars in the complaint (residence and separation) and again in the same two particulars on the divorce hearing and would have been subject to punishment for contempt in any of the four instances, the record is clear that he was punished for contempt for falsely swearing at the divorce hearing that his wife was a resident of Union County.

The ensuing grand jury indictment was artfully prepared and fully meets all legal requirements. It charges in plain terms that petitioner swore, before Chancellor In-man, that his wife “was a resident of Union County,” knowing at the time that in point of fact she was a resident of Sevier County.

Upon the trial under this indictment, petitioner was found guilty and sentenced to serve in the state penitentiary for not less than one (1) nor more than two (2) years.

I.

The Double Jeopardy Issue

It should be noted at the outset that petitioner was convicted of a criminal contempt in Chancery Court.

The Court of Criminal Appeals placed primary reliance upon Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076 (1903). The very brief opinion in this case contains dictum that supports the conclusion of the Court of Criminal Appeals; however, the court did not have before it two convictions. The defendant was tried and convicted for contempt of court consisting of subordination of perjury. Apparently his defense was that contempt merged into the greater offense of subornation of perjury. In this context the Court said:

The offenses [contempt and subornation] are entirely distinct and independent. They are created upon different principles, for different purposes, are tried and punished differently, and a conviction or acquittal of one is no bar in a prosecution for the other.
Ill Tenn. at 382-383, 77 S.W. at 1077.

Next, the Court of Criminal Appeals cites Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49 (1930). There the defendant, a juror in a prior case, was convicted of bribery and was subsequently prosecuted for contempt of court based upon the same occurrence. The late Chief Justice Green, after holding that the defendant could be prosecuted for bribery and contempt, stated:

. [A] double punishment for the same offense is contrary to the spirit of our laws. Since he has been convicted of the felony, we suggest that the Attorney-General dismiss the contempt proceedings.
160 Tenn. at 602, 28 S.W.2d at 49.

Next, the Court of Criminal Appeals relied upon Underwood v. State, 187 Tenn. 530, 216 S.W.2d 26 (1948). There the Court held that, where a defendant violated an injunction against violating the liquor laws, he was liable both for criminal prosecution for violation of the liquor laws and for contempt for violating the Court’s order. The Court reasoned:

When one is enjoined from committing certain illegal acts a commission of these acts subjects the offender to a criminal prosecution and a prosecution for contempt for violating the court order. This is not in effect double punishment. One is a punishment for violating a law while the other is for violating a court order. A court mandate or order would be a nullity if the violator could say I have paid a fine for a criminal violation and am, therefore, not subject to the order of the court.
187 Tenn. at 531-532, 216 S.W.2d at 26-27.

See also Barrowman v. State, 214 Tenn. 408, 381 S.W.2d 251 (1964) (following Underwood ).

These cases are indeed supportive of the conclusion reached by the Court of Criminal Appeals. All are bottomed upon the premise that two separate and distinct offenses are involved. This predicate must be examined in the light of more recent cases.

I start my analysis with the Colombo series of cases.

Colombo was called before a Kings County, New York, grand jury and refused to answer questions. He was adjudged guilty of criminal contempt and punished accordingly. He was subsequently indicted for criminal contempt for the same failure to testify. The New York Appellate Court reversed the trial judge’s determination that double jeopardy precluded the prosecution under the indictment. People v. Colombo, 25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340 (1969).

The Supreme Court granted certiorari, vacated the judgment and remanded for further consideration. Colombo v. New York, 400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 16 (1970). On remand the New York Court of Appeals adhered to its earlier decision, reasoning that the first citation was for civil contempt whereas the indictment charged the commission of a criminal offense.

The Supreme Court again granted certio-rari and in Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 (1972), vacated the judgment below, held that the contempt was criminal in character, and, without determining the double jeopardy question, remanded to the New York Court of Appeals for the purpose of considering this issue.

On remand, the New York Court of Appeals held that the two convictions could not stand together basing its reasoning on the “same evidence” and “same elements” tests:

The same evidence provides the Judiciary Law contempt for which defendant was previously punished and the Penal Law contempt charged in the indictment, and the elements of the two contempt charges are the same. (Emphasis supplied). People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 98, 293 N.E.2d 247, 247 (1972).

The Court of Criminal Appeals attempts to walk around Colombo by saying that “[tjhere is no diversity of offenses present in Colombo" but that here “[t]he indictment and conviction ... for perjury is a separate and distinct offense.”

But are they? The evidence and the elements are precisely the same. To prove the criminal contempt, perjury must be established. To prove the perjury, perjury must be established. No additional fact is necessary to either proof. The fact that it violated two separate statutes is of no significance.

In our recent case of State v. Black, 524 S.W.2d 913 (Tenn.1975), we did not expressly adopt the “same evidence” test; but the majority relied heavily upon Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is bottomed on the “same evidence” or “same elements” tests, which are essentially identical:

‘Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not’ 284 U.S. at 304, 52 S.Ct. at 182. (Emphasis supplied.) Quoted in 524 S.W.2d at 919.

The instant ease flunks the Blockburger test, for neither the contempt nor the perjury conviction requires proof that the other does not.

The criteria of Black were summarized by Judge Daughtrey, writing for the Court of Criminal Appeals in Greer v. State, 539 S.W.2d 855 (Tenn.Cr.App.1976):

(1) whether the episode or transaction constitutes a violation of two distinct statutory provisions; (2) whether either of the offenses is a necessarily included offense of the other; (3) whether each of the offenses requires proof of a different element; and (4) whether each requires proof of an additional fact which the other does not. [Citation omitted.] A distillation of these factors produces essentially the ‘same evidence’ standard. 539 S.W.2d at 858.

Of course, the act in question here clearly violated at least two separate and distinct statutes: contempt, T.C.A. § 23-902(4), and perjury, T.C.A. § 39-3301. This is the factor which has dominated prior decisions permitting both offenses to stand together.

Neither offense is a lesser included offense within the other.

The final two factors, however, support the Defendant’s position. The contempt statute and the perjury statute do not have distinct elements for purposes of this case.

It is clear from Black and Blockburger that the last two criteria — differing elements and additional facts — are the controlling considerations. See also Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), for further discussion of the issue of double jeopardy.

I think it evident that the clear trend of modern decisional law against dual convictions for what is essentially a single, indivisible act, as evidenced by the rationale of Black, Blockburger and Colombo, forces a re-evaluation of Ricketts and Underwood. I would hold that the criminal prosecution of the petitioner for perjury, following his conviction for criminal contempt, is barred by the double jeopardy provisions of Article I, Section 10 of the Constitution of Tennessee and the Fifth Amendment of the Constitution of the United States.

II.

There is yet another, and equally substantial, reason for reversing petitioner’s conviction.

It is fundamental to a conviction for perjury that the false swearing be to a material fact. The statute (§ 39-3301) so commands; our case law so requires. State v. Bowlus, 50 Tenn. 29 (1870).

On March 7,1977, we released our opinion in Kane v. Kane, 547 S.W.2d 559, holding (1) that Sec. 36-804, T.C.A., deals only with venue of divorce actions and not jurisdiction; and (2) that venue may be waived.

It is evident that the Chancery Court at Maynardsville had jurisdiction to entertain a divorce action. By filing an answer and submitting herself to the personal jurisdiction of the court, petitioner’s wife waived venue. Because the court had both subject matter jurisdiction and in personam jurisdiction, the residence of the parties had no materiality. It, therefore, follows that petitioner did not swear falsely “touching a matter material to the point in question” and his conviction for perjury may not stand.

I would reverse and dismiss.

      . People v. Colombo, 25 N.Y.2d 641, 306 N.Y.S.2d 258, 254 N.E.2d 340 (1969), vacated sub nom. Colombo v. New York, 400 U.S. 16, 91 S.Ct. 99, 27 L.Ed.2d 16 (1970); Colombo v. New York, 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 (1972); People v. Colombo, 31 N.Y.2d 947, 341 N.Y.S.2d 97, 293 N.E.2d 247 (1972).

      . Advice of counsel is no defense to a criminal contempt, but may be considered in mitigation of punishment. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908 (1964).

      . See Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542 (1966); McCraw v. Adcox, 217 Tenn. 591, 399 S.W.2d 753 (1966); Gunn v. Southern Bell Telephone & Telegraph Co., 201 Tenn. 38, 296 S.W.2d 843 (1956).

      . I did not participate in Kane v. Kane and have grave reservations about the conclusions reached. It reinstates a practice long condemned by the bench and bar. However, it is currently the law in Tennessee.


author: HARBISON, Justice.

text:
    The HILLHAVEN CORPORATION, Appellant, v. The STATE of Tennessee ex rel. MANOR CARE, INC., et al., Appellees.
    Supreme Court of Tennessee.
    April 28, 1978.
    Robert M. Johnson, Memphis, Robert C. Hendon, Jr., Nashville, for appellant; Canada, Russell & Turner, Memphis, Waller, Lansden, Dortch & Davis, Nashville, of counsel.
    Charles F. Newman, Charles G. Burr, Memphis, for appellees; Burch, Porter & Johnson, Memphis, Kramer, Lowenstein, Nessen, Kamin & Soil, New York City, of counsel.
   OPINION

HARBISON, Justice.

Appellees, as minority stockholders in the Hillhaven Corporation, instituted this action in the Chancery Court of Shelby County as a petition for mandamus, seeking to enforce their right to inspect the books and records of the corporation and to obtain a list of shareholders, pursuant to T.C.A. § 48-717. Appellees alleged that they collectively owned fewer than five percent of the outstanding shares and that they had held their shares for less than six months. Their complaint alleged, however, that they sought the list of shareholders in order “to communicate to the shareholders of the defendant corporation an offer to purchase shares of the defendant corporation.”

Exhibited to the complaint was a recent letter setting forth their demand for this information, which, it was alleged, had been refused.

An alternative writ of mandamus was issued, requiring the appellant corporation to make available the requested information or to show cause why this should not be done. Appellant filed an unsworn answer, admitting stock ownership by appellees and admitting their alleged purpose and their prior demand. In its answer, however, the company alleged that appellees were seeking the shareholders list for an improper purpose, and that their purchase offer violated certain state and federal regulatory statutes. The answer alleged that appellees were engaged in a fraudulent and illegal scheme to acquire control of appellant. Attached to the answer was a copy of a civil complaint filed by the appellant against appellees in a federal district court in another state. Appellant specifically alleged that appellees had failed to comply with the Tennessee Investor Protection Act, T.C.A. §§ 48-2101 et seq.

Upon the filing of the answer, appellees moved for a peremptory writ of mandamus, alleging that the answer of appellant failed to show good cause for withholding the requested corporate records.

Evidently a hearing was held before the Chancellor upon these pleadings. In their briefs counsel state that the matter was argued extensively. However, very little evidence was introduced by either side, nor were there any written stipulations of fact. Appellant filed a brief affidavit from a corporate officer, setting out the location and approximate value of company assets in Tennessee, the number of shareholders residing in the state and the location of the shareholder list. Apparently there was also introduced a copy of a complaint which had been filed in the Chancery Court at Nashville on April 11, 1978 by the Commissioner of Insurance, charging appellees with violations of the Investor Protection Act. Attached to that complaint were copies of a temporary restraining order and of an order to show cause issued by the Chancellor in Nashville.

Insofar as we can tell, no other proof of any sort was introduced. Clearly either party had a right to offer evidence in support of factual issues, and apparently all parties were afforded an opportunity to do so. In all events, there is no complaint on appeal that any right to an evidentiary hearing was abridged or curtailed.

After the hearing, the Chancellor entered an order, stating that he was of the opinion that the answer filed by appellant failed to show good cause for its refusal to make available the corporate data requested. He sustained the complaint and directed the issuance of a peremptory writ of mandamus, requiring appellant to produce or make available the corporate records sought, pursuant to T.C.A. §§ 48-716, —717. The corporation appealed and obtained a temporary supersedeas in this Court. The cause was heard on April 19, 1978, and all parties have treated that hearing as dealing with the merits of the appeal, as well as dissolution of the supersedeas. The only issue is whether the Chancellor erred in issuing the peremptory writ of mandamus. All parties recognize that the appeal would become moot if execution of that order occurred prior to appellate review.

The corporate records inspection statute, T.C.A. § 48 — 717, provides that minority stockholders, owning fewer than five percent of the outstanding shares and holding them for less than six months, may nevertheless compel the production for examination of the books, documents and records of the corporation “upon proof of proper purpose . . . T.C.A. § 48-717(2).

The complaint in the present case alleged ownership of minority stock and the purpose of communicating to other shareholders a purchase offer. Both of these allegations were admitted in the answer, and counsel for appellant conceded in oral argument that the purchase stated in the complaint was not, in and of itself, either improper or illegal.

Upon the record filed here, therefore, we agree with the Chancellor that it was incumbent upon appellant, both by pleading and by proper proof, to establish an improper or illegal purpose, so as to justify its refusal to make available the books and records requested. This it simply has not done. There are allegations of an unresolved suit pending between the parties in a federal court. There are also wholly unsupported allegations of illegality or irregularity of the purchase offer.

Allegations in pleadings are not, of course, evidence of the facts averred. Unless such facts are admitted or stipulated, they must be proved by documents, affidavits, oral testimony or other competent evidence. On the face of the record before us there is not even sufficient evidence to show that the tender-offer made by appel-lees falls within the provisions of the Investor Protection Act and of the regulations issued pursuant thereto. That statute applies only if acquisition by the offeror would result in ownership of a certain percentage of the equity securities of the of-feree, and there are a number of exceptions and exemptions. The record is silent as to the number of shares owned by appellees, the number of shares outstanding, and even as to the terms of the tender-offer. From the information before us, we could not possibly determine whether the offer is covered by or whether it complies with this or any other securities law.

As pointed out by appellees, there are a number of holdings in other states that a stockholder may not be deprived of a statutory right of inspection upon mere allegations of irregularity or illegality under various securities laws or other statutes. See Wood, Walker & Co. v. Evans, 300 F.Supp. 171 (D.C.Colo.1969); Kerkorian v. Western Airlines, Inc., 253 A.2d 221 (Del.Ch.1969); Application of Joslyn, 191 Mise. 512, 78 N.Y. S.2d 183, aff’d 273 App.Div. 945, 78 N.Y. S.2d 923 (1948). In several cases it was pointed out that allegations of irregularity did not amount to proof thereof, and that the courts must assume that regulatory agencies under securities laws will take appropriate action to compel compliance with any governing statutory provisions. Once stock ownership and a purpose reasonably related thereto are established, courts are reluctant to deny the right of inspection upon unsupported contentions of the corporation as to anticipated future use of the information obtained. See Alabama Gas Corp. v. Morrow, 265 Ala. 604, 93 So.2d 515 (1957); General Time Corp. v. Talley Industries, Inc., 43 Del.Ch. 531, 240 A.2d 755 (1968); Mite Corp. v. Heli-Coil Corp., 256 A.2d 855 (Del.Ch.1969).

On the record before us wre are unable to find any reversible error in the action taken by the Chancellor, and his judgment accordingly is affirmed at the cost of appellant. The supersedeas heretofore granted is dissolved, and the cause is remanded for further proceedings.

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

      .T.C.A. § 23-2006 provides that in response to the alternative writ, cause may be shown by a sworn answer. Sworn pleadings are generally dispensed with in civil actions except where required by statute. T.R.C.P., Rule 11.

      . T.C.A. § 23-2007.

      . T.C.A. § 23-2008.

      . In oral argument, counsel advised this Court that the U. S. District Court in that case had directed appellant to furnish at least a partial stockholders list to appellees and that this had been done since the present appeal was docketed.

      . Since disposition of this case in the trial court, counsel have produced and filed here a certified copy of a consent order entered in the Nashville proceedings, showing dismissal of the suit brought against appellees by the Commissioner of Insurance.


author: CARNEY, Presiding Judge. NEARN, Judge. CARNEY, Presiding Judge.

text:
    Charles Quitman STEPHENS, Plaintiff-Appellant, v. CITY OF MEMPHIS and Memphis Publishing Company, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 23, 1977.
    Rehearing Denied Aug. 10, 1977.
    Certiorari Denied by Supreme Court Feb. 13, 1978.
    Harvey L. Gipson, Robert A. Tucker, Memphis, for plaintiff-appellant.
    Marshall Gerber, Memphis, for defendant-appellee, City of Memphis.
    Armistead F. Clay, Memphis, for defendant-appellee, Memphis Publishing Co.
    Dale Woodall, Memphis, for defendant-appellee, Memphis Area Chamber of Commerce & Downtown Assn.
    Edward L. Welch, Edwardsville, Ill., for defendant-appellee, National Alliance of Postal & Federal Employees.
   CARNEY, Presiding Judge.

The Plaintiff below, Charles Quitman Stephens, brought suit against the several Defendants to recover rewards offered by them for information leading to the arrest and conviction of the murderer of Dr. Martin Luther King, Jr. Dr. King was shot to death from ambush at the Loraine Motel in Memphis, Tennessee, on April 4, 1968.

The Chancellor found that the rewards offered by the Appellees were:

(1) Memphis Publishing Company . . . $50,000.00

(2) Memphis Chamber of Commerce, Downtown Association and Future Memphis, Inc. 25,000.00

(3) Mrs. Wells Awsumb . 1,000.00

(4) National Alliance of Postal Employees . 10,000.00

(5) City of Memphis.. 5,000.00

(6) City Councilmen. 8,915.00

(7) Cash donations in the hands of Banks of Memphis . 85.00

TOTAL.$100,000.00

His Honor the Chancellor denied recovery on two grounds: (1) Plaintiff gave the Memphis Police practically all the material information he had on the evening of April 4, 1968, immediately after the death of Dr. King and before the rewards had been offered; (2) Information furnished by Plaintiff did not lead to the identification and arrest of James Earl Ray as the murderer. The Plaintiff’s suit was dismissed and Plaintiff has appealed.

Assignment of error No. I is that the Chancellor erred in finding that the Plaintiff was a recalcitrant witness. We do not find any place in the record where this finding is made. This was one of the defenses made. However, His Honor the Chancellor, in summing up the theories of the defense, omitted this particular defense.

Plaintiff had been arrested many times by the Memphis Police for public drunkenness. He was a material witness against whomever might be arrested for the murder. Plaintiff was incarcerated by the Attorney General as a material witness with consent of the Plaintiff. The Attorney General feared for the life of Plaintiff and also wanted to be sure Plaintiff was available to identify the murderer when apprehended.

District Attorney General Phil Canale, Jr. complimented the Plaintiff for his cooperation with the Memphis City Police. If His Honor the Chancellor had, in fact, found that the Plaintiff was a recalcitrant witness, we would disagree but could not characterize it as reversible error.

Assignment of error No. II is as follows: “The Honorable Chancellor below erred, contrary to the proof herein, in finding that the plaintiff did not give the information with the intent to collect said rewards; erred in finding that said material information was given prior to the offer of rewards; and erred in finding that said information did not lead to the arrest and conviction of the assassin of Martin Luther King, Jr.”

On April 4,1968, Dr. Martin Luther King, Jr. had been in Memphis several days in support of the strike of the Memphis Sanitation and Garbage Workers. Dr. King had been staying at the Loraine Motel. The bathroom window at the east end of the hall in a rooming house at 422½ South Main Street in Memphis overlooked the front of the Loraine Motel about a block away.

About noon on April 4,1968, a white man calling himself Jim Willard rented apartment 5-B of the rooming house located at 422½ South Main Street in Memphis, Tennessee. The Plaintiff Stephens was a longtime occupant of apartment 6-B in the same rooming house. He saw the white man, alias Jim Willard, talking to the landlady at the time he rented the apartment. The bathroom at the east end of the hall of the rooming house was between apartments 5-B and 6-B.

For about forty-five minutes prior to 4:30 P.M., someone had been locked in the bathroom. About 4:30 P.M., the Plaintiff, who was in his own apartment, heard a shot which seemed to come from the bathroom. He also heard shouting from the Loraine Motel. He opened the door of his apartment into the hall and saw the person who had called himself Jim Willard running down the east end of the hall westward toward the stairway at the front door carrying a package under his arm. The package was about four feet long and several inches thick covered with some fabric or material which may have been cloth or may have been a newspaper.

A short time after the shooting, witnesses in the Canipe Amusement Company located at 424 South Main Street immediately south of the rooming house on the same side of the street, heard a peculiar noise as if something was being thrown or dropped; they saw a white man get into a white Mustang Ford automobile which was parked on the east side of South Main Street almost in front of 424 South Main Street, and drive northwardly on Main Street at a very rapid rate of speed. Very shortly after the man sped away a package similar to the one described by Plaintiff as having been carried by the occupant of apartment 5-B was picked up just outside the doorway of the Canipe Amusement Company. The package was wrapped in a bedspread and contained a rifle, binoculars, suitcase and several articles of clothing. All circumstances pointed to the occupant of apartment 5-B as the murderer of Dr. King.

Plaintiff talked to the police within minutes after the shooting and described the suspect as follows:

“. . . the man was 5' 11", medium build, 160 to 165 lbs., dark sandy hair, ruddy complexion, 30 to 32 years, was wearing a black suit, white shirt and a dark colored tie, that he thought was black in that it was a plain tie without any figures on it.”

About 9:30 P.M., he talked with police officers and the F.B.I. again and enlarged upon the description of the suspect as follows:

“. . . he was around my height, I am 6' 1" and he was around my height, he had dark sandy colored hair, and he had a slightly receding portion of hair, you see, his hair came out in the middle to a point, but on both sides of his head, it was getting bald. He had on a black suit, white shirt, and it was either a coal black tie or it was a dark tie, but it was all one color, he was slender built, he wasn’t heavy set, he was slender, weighed about 162 to 163, somewhere in there, and he was between 30 and 32.”

There were fingerprints on the rifle and on the binoculars which were identified by the F.B.I. as being the fingerprints of James Earl Ray, a fugitive from the Missouri State Prison. Laundry marks on some of the clothes found were traced to a laundry in Los Angeles, California, indicating the owner of the clothes to be Eric S. Galt. This investigation in the Los Angeles area led to a bartending school. Eric S. Galt had graduated as a bartender and each graduate had his picture taken with the supervisor of the school. The supervisor of the school produced a picture of himself standing with Eric S. Galt holding the graduation certificate up with the name of Eric S. Galt plainly visible on the certificate. The F.B.I. compared pictures of James Earl Ray with Eric S. Galt and decided that they were one and the same. Investigation revealed that Eric S. Galt had registered at the Rebel Motel in Memphis on the night of April 3, 1968.

After James Earl Ray’s fingerprints had been identified as those on the rifle and the binoculars, the Plaintiff was shown a picture of James Earl Ray, the fugitive, and identified him as the man who had rented apartment 5-B on April 4,1968. This identification was made by Plaintiff after he had learned about the rewards.

James Earl Ray was the only person being sought as the murderer of Dr. Martin Luther King. His pictures were circulated among all the law enforcement agencies throughout the country. His trail led to Canada where James Earl Ray was identified as Raymon George Sneyd who had procured a passport from Canada to go to London. James Earl Ray was followed from London to Portugal and back to London. Ray was about to board a plane to go to Brussels, Belgium, when a member of Scotland Yard recognized him from a picture as James Earl Ray, alias Raymon Sneyd. He was immediately arrested and brought back to Memphis for trial.

The police learned that James Earl Ray had bought the rifle at the Aeromarine Supply Company in Birmingham, Alabama, under the name of Harvey Lowmyer. Witnesses identified Ray’s picture as the purchaser. The white Mustang automobile was also purchased by Ray in Birmingham, Alabama, from an ad which appeared in the paper. It was abandoned on the morning of April 5, 1968, in Atlanta, -the day after Dr. King was killed. The F.B.I. located witnesses who could prove that James Earl Ray lived in Atlanta for a while after the assassination.

The ballistics experts could testify that a bullet from Dr. King’s body probably was fired from the rifle found in front of Can-ipe Amusement. The bullet was damaged making it impossible to exclude all other rifles of the same type and caliber.

James Earl Ray pleaded guilty to murder in the Criminal Court of Shelby County, Tennessee, and did not go to trial. Plain-, tiff would have been a material witness- but not an indispensable witness if James Earl Ray had pleaded not guilty and it had been necessary to go to trial in the cause.

From the Chancellor’s memorandum opinion we quote as follows:

“The right of a claimant to recover a reward is summarized in an annotation in 100 A.L.R.2d, 577. On page 577 the Rule is stated as follows:
‘Although there appears to be considerable variation in the language of reward offers, it seems that, basically, there are two kinds: (1) rewards offered for the “arrest” or “arrest and conviction,” and the like; and (2) rewards which specifically allow recovery by a person “furnishing information leading to” the arrest, conviction, and the like. However, it seems that irrespective of the particular type of reward offer involved, recovery of a private reward is governed by the well-settled principles of the law of contracts. Thus, it has been held that in order for a furnisher of information to recover under a private reward it must be shown that he had knowledge of the reward offer and that he acted with the intention of claiming it. Generally, in order to recover a reward, all that is necessary is a substantial (rather than a literal) compliance with the reward offer. A number of cases have taken the view that in order to become entitled to a reward the claimant must have furnished the first effective information which was the active and efficient means of apprehension or proximately resulted in the arrest of the criminal.’

This annotation supplements an earlier one in 53 A.L.R. 542, wherein the case of Stamper v. Temple (1845), 25 Tenn. 113, is cited in support of the majority view that knowledge of the offer of the reward at the time of giving the information is a prerequisite to recovery.

In the Stamper case the trial judge charged the jury that if the reward were in fact offered the plaintiffs would be entitled to recover notwithstanding they had no knowledge of the offer. Turley, J., speaking for the Court, said:

‘In this charge the whole Court agree that there is error. The Judge, in the first place, charged the jury that there must be a contract of reward to be paid before a suit could be maintained for the recovery of the reward. To make a good contract there must be an aggre-gatio mentium, an agreement on the one part to give, and on the other to receive. How could there be such an agreement if the plaintiffs in this case made the arrest in ignorance that a reward had been offered? The arrest would have been made, not for the reward, but in discharge of the public duty.’

Citing this case among others the author of a note in 14 Va.Law Rev. 124, has this to say:

‘Although there are a number of highly respectable authorities upon each side of this question, the weight of authority seems to favor a denial of recovery where there is no prior knowledge of the offer.
Looking at this question according to reason and principle, it is submitted that a private individual is not legally liable upon an offer of a reward unless the acts have been performed with knowledge of the offer, and a fortiori he is not liable when the acts were performed before the offer had been made. If it be conceded that this is a matter of contract, then, it needs no argument to establish the fact that one cannot accept an offer of which he has never heard. Since an acceptance is absolutely necessary to make a binding contract, there can be no recovery in such a case.’

An examination of the various statements made by Stephens and contained in the record together with his testimony as quoted above reflects that he gave to the police all the information he had on the evening of April 4th, and his statement of April 5th in further interviews with the police and the FBI disclosed no information that had not already been given by him to the police on the evening of April 4th.”

In the case of Stair v. Heska Amone Congregation (1913), 128 Tenn. 190, 159 S.W. 840, our Tennessee Supreme Court said, “The better rule is that he who is the active and efficient cause in securing the result described in an offer of reward is the one entitled to it. He is the one who accomplishes the result — who brings it about.”

Also, from 67 Am.Jur.2d 17, Section 22, we quote as follows:

“A reward offered for information leading to the arrest and conviction of an offender is earned by the person who first communicates the information that ultimately leads to both. In order to become entitled to the reward, the claimant must be the first person to give information to the proper authorities, and the information must be effective in leading to the arrest and conviction of the offender,” citing Kincaid Trust & Savings Bank v. Hawkins, 234 Ill.App. 64; County Court of Braxton County v. Smith, 110 W.Va. 392, 158 S.E. 377.

We concur in the findings of the Chancellor and in his application of the law. The information furnished by Plaintiff did not lead to the identification and arrest of James Earl Ray. The fingerprints and laundry marks did. The information furnished by Plaintiff before the rewards were offered led to the conviction of James Earl Ray.

Therefore, assignment of error No. II is respectfully overruled. The judgment of the lower Court is affirmed and the costs in the Court below and in this Court are taxed to the Plaintiff.

Done at Jackson in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

MATHERNE, J., concurs.

NEARN, J., dissents.

NEARN, Judge.

I concur in so much of the Opinion that holds that the information furnished by plaintiff did not lead to the identification and arrest of James Earl Ray. For that reason alone, plaintiff is not entitled to recover. Therefore, I will concur in the results reached by the majority.

From so much of the Opinion that indicates that it is the law of this state that prior knowledge of the existence of a reward is a prerequisite of recovery, I dissent with all of the fervor I can command.

I admit that “the weight of authority seems to favor a denial of recovery where there is no prior knowledge of the offer”, but until the Supreme Court of this state speaks clearly on the subject, I care not where the weight of foreign authorities lies. Even if our 49 sister states and all the possessions and territories of the federal government would hold that recovery is dependent upon prior knowledge of the offer, I would hold otherwise for this state.

Reliance upon the case of Stamper v. Temple (1845) 25 Tenn. (6 Humph.) 113, is in my opinion, entirely misplaced. In one of the briefs filed in this case it is submitted “that in the 130 year period since Stamper was decided Tennessee has been constantly put in the ‘majority view’ and the law is so well settled in that regard that it appears beyond question.” I question it. The case involved an alleged offer of reward and the arrest of the felon by a regular deputy sheriff. If the headnotes of the case are ignored and its full text read, it becomes apparent that recovery was denied and the case was decided on the fact that there never was a reward offered, viz., “We do not think that the proof establishes the fact that a reward of $200 was actually offered * * * as we frequently hear persons exclaim, Oh! I would give a thousand dollars if such an event were to happen, or, vice versa. No contract can be made out of such expressions; they are evidence of strong excitement, but not of a contracting intention.”

The Stamper Court also explicitly held that “_Jonathan Lassater, in making the arrest, was in the line of his duty; he was deputy sheriff of the county where the outrage had been committed; he had been sent by the principal sheriff to attend to it in his stead. Under such circumstances a majority of the court held that, as a matter of public policy, he would not have been entitled to claim the reward had it been offered.” (Emphasis supplied.)

Prior to making the above mentioned holding and announcement of public policy the Court stated,

“— The judge, in the first place, charged the jury that there must be a contract of reward to be paid before a suit could be maintained for the recovery of the reward. To make a good contract there must be an aggregatio mentium, an agreement on the one part to give, and on the other to receive. How could there be such an agreement if the plaintiffs in this case made the arrest in ignorance that a reward had been offered? The arrest would have been made, not for the reward, but in discharge of the public duty.” (Emphasis mine)

The annotator took the foregoing to mean that “there must be an offer clearly intended as such, and knowledge of the offer by the other party at the time of making the arrest.” (Underscoring mine.) Even if such interpretation be correct, it is dicta. Especially so when the Opinion states the other reasons given for reversal are of a “higher character”. The query made by the Court and relied upon by annotators was certainly unnecessary for the decision of a case which held there was no contract in the first place. However, the query and its answer could just as easily mean that a deputy sheriff could not collect for exercising an option he did not have; for he was bound under his oath to make the arrest and had no choice.

It would seem to me that the annotators, who for 130 years have placed Tennessee in the “majority” camp, have relied more on interpretation of dicta contained in other annotators’ headnotes than the actual statements of the Court.

It is my opinion that those states which have based a requirement of “prior knowledge” solely on theories of contract have engaged in nothing more than judicial fantasy. “Contract” concepts are theories of the marketplace. Contracts generally are equated with thoughts of “buy and sell”, “profit and loss”, “quid pro quo” and mutual consideration. That is to say, something is going to be exchanged between the parties. You get something for something. In the business world of contracts you are not supposed to receive nothing for something.

What does the offerer of a reward receive for his money?

The end purpose of a private offer of reward for information leading to arrest and conviction of a perpetrator of a crime should be to bring a public enemy to the bar of justice. The offerer receives nothing for the payment of a reward other than the satisfaction of seeing the guilty convicted. This should be the same satisfaction of every citizen, except perhaps the one convicted. To apply a marketplace theory to the matter of rewards is to apply the marketplace theory to criminal justice, which application, to my mind, is anathema.

Additionally, to base the payment of a reward on “prior knowledge” ought to be against the public policy of this state. Just what constitutes “public policy” is a matter of considerable dissertation by text writers. It is my position that if the policy inhibits justice and promotes fraud it is against the public policy of the state of Tennessee. What policy could be more fraught with impediments to justice and with fraud than one that says to the public, “Citizens, if you come forward and do your civic duty promptly as you should, without knowledge or thought of reward, you shall forfeit all claims to any funds which have been offered by other public-minded citizens to induce the citizenry to come forward and do their duty as they should. However, citizen, if you do not do your duty as you should, but on the contrary, wait until the ‘pot is right’ and you are assured that top dollar will be paid for the information which you ought to have promptly given in the first instance, then you may come forward with your concealed information and you will be amply rewarded for your delay of justice and personal avarice.” To hold “prior knowledge” necessary for recovery is to make that statement to the people of this state.

Done at Jackson in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

PETITION TO REHEAR DENIED

CARNEY, Presiding Judge.

On May 23, 1977, this Court announced an opinion affirming the judgment of the lower Court which denied the Plaintiff’s suit for recovery of approximately $100,000 in rewards offered after the murder of Dr. Martin Luther King, Jr., in Memphis, Tennessee, on April 4, 1968. The Plaintiff has filed a petition to rehear in which he very earnestly insists that this Court should adopt the views expressed by our distinguished colleague, Judge Nearn, in his very forceful dissenting opinion filed in this case. We have reread our former opinion along with the dissenting opinion of Judge Nearn and after deliberate thoughtful consideration, the majority adheres to the opinion announced on May 23, 1977.

The Petition to Rehear is, therefore, respectfully denied at the cost of the Plaintiff.

MATHERNE, J., concurs.

NEARN, J., dissents.


author: DROWOTA, Judge.

text:
    In re ESTATE of Gladys DYE, Deceased. W. B. and Catherine SMITH and D. L. and Irma Foster, Appellants, v. Mary ALSOBROOK, Executrix, Appellee.
    Court of Appeals of Tennessee, Middle Section.
    July 1, 1977.
    Certiorari Denied by Supreme Court . Oct. 3, 1977.
    Noble L. Freemon, C. N. Griffith, Waverly, for appellants.
    A. D. Walker, Jr., Dyersburg, Allen W. Wallace, Waverly, for appellee.
   DROWOTA, Judge.

OPINION

This is an appeal from the judgment in a probate proceeding in which several holographic instruments were propounded as the last will and testament of Gladys Dye. The sole issue presented is whether testatrix effectively revoked a devise of her realty in one of these instruments by the physical act of drawing lines through the provision containing it.

This litigation began with the filing of a petition to probate in solemn form a holographic instrument dated January 1, 1974, and purporting to be the last will and testament of testatrix. The petition was filed June 13,1974, by Mrs. Mary S. Alsobrook, a first cousin of testatrix who was also named as sole executrix in the instrument. This 1974 will, which was found in a lock-box containing other papers and possessions of testatrix, made no provision for disposition of her realty, consisting of her house and lot. During the course of the proceedings, serious questions arose as to the effect of another holographic instrument, which was dated February 2,1972, and which also purported to be Mrs. Dye’s last will. The 1972 will, which was found in the lockbox together with the 1974 will, named Mary Alsobrook executrix of testatrix’s personal estate but appointed Wesley Fortner executor of her realty. The 1972 will further provided that her house and grounds should be sold and the proceeds should be divided among Mary Alsobrook, D. L. Foster, another first cousin, and Mr. and Mrs. W. B. Smith, friends of testatrix who were not related to her. Two additional holographic instruments, written by testatrix in 1947 and 1967, were also offered for probate.

A hearing was held before Judge Spencer of the Circuit Court of Humphreys County after County Judge Bradley recused himself because he was mentioned in one of the instruments. On July 11, 1975, the court rendered judgment that the 1974 instrument was the valid and complete will of Gladys Dye in regard to her personal property, and that because of its inconsistency with them it superseded the three earlier documents in this regard. The court reserved judgment on the issue of testatrix’s realty until April 19, 1976, when it issued a memorandum opinion finding that testatrix intentionally revoked the 1967 will in writing the 1972 will, then effectively revoked the clause devising her realty in the 1972 will after becoming dissatisfied with that instrument, and finally wrote the 1974 will, in which she purposely chose not to make a disposition of her real property. The court concluded that she died intestate with regard to her real property. From a judgment embodying this conclusion D. L. Foster and Mr. and Mrs. W. B. Smith, named beneficiaries with Mary Alsobrook of the proceeds of testatrix’s realty in the 1972 will, were granted an appeal limited to the question of whether the trial court erred in finding that testatrix died intestate as to her realty.

The key provision in this case is obviously the provision of the 1972 will in which Mrs. Dye attempted to devise her realty. That provision appears on the first page of the. will and originally read as follows:

I appoint Wesley Fortner of Martin executor to handle my estate and sale of any real estate — my house & grounds to be sold and divided between Mary Also-brook, D. L. Foster and Mr. & Mrs. W. B. Smith of McEwen.

This entire provision has been lined through. In addition, the word “void” has been written over “Wesley Fortner” and over “& grounds,” “executor” has been changed to “executrix,” and Mary Also-brook’s name has been written in above Fortner’s. Alterations have also been made to the first two lines of the instrument, which originally read:

My Holographic Will dated — Feb. 21-1972 I, Gladys Sullivan Dye, being of sound mind and .

Here, between the lines, under “Will” and above “Sullivan” is written “(void) 12/30/73 revised.” The date “Feb. 21-1972” has been lined out, and “Jan. 1-1974” substituted immediately below it.

Testimony in the case firmly established that all four wills were in testatrix’s handwriting, and that the alterations made to the 1972 will were hers as well. All witnesses agreed that testatrix was a strong-minded woman, of sound mind until struck by illness in February of 1974. She had told several people in December of 1973 that she was going to write, or in one case “copy,” her will. One witness testified that testatrix had often expressed dissatisfaction with prior wills, and had said in December of 1973 that she was finally going to write the will she had talked about for so long. Testatrix told a number of people in January 1974 that she was working on the will, but there was no indication that her last illness, beginning in February, interfered with this work. There was also conclusive testimony that testatrix was angry with Wesley Fortner, and it was for this reason that she had eliminated him from the 1972 will as executor of her real property. There is no doubt of this, for in a “codicil” on the last page of the 1974 will testatrix expressly states as much. There was no evidence that she was angry with appellants Foster and the Smiths.

Although there does not seem to be any authority in Tennessee squarely holding that revocation of a will in part by physical act is possible, indications are that this is the law. See 1 R. Pritchard, Law of Wills, § 270 (3d ed. 1955). For a revocation to be valid, concurrence of an intention to revoke and some act by the testator manifesting that intention is required. Donnelly v. Hendrix, 49 Tenn.App. 361, 355 S.W.2d 116 (1960); Parker v. West, 29 Tenn.App. 642, 199 S.W.2d 928 (1946). As with most will problems, the testator’s intent is thus the key.

Appellants Foster and Smith point out that Tennessee law indulges a presumption against any partial intestacy when a decedent dies testate, and especially so with regard to real estate. T.C.A. § 32-301; Williamson v. Brownlow, 219 Tenn. 464, 410 S.W.2d 878 (1967); Ledbetter v. Ledbetter, 188 Tenn. 44, 216 S.W.2d 718 (1949). The cases make clear that this presumption applies in absence of the appearance of a contrary intent and only when “the words used, by any fair interpretation, will embrace the property not otherwise devised.” McDonald v. Ledford, 140 Tenn. 471, 205 S.W. 312, 313 (1918). In the instant case, however, the devise of realty cannot be found to be embraced within the words of the will by fair interpretation, for testatrix specifically lined it out. This unequivocal act of cancellation of the realty clause necessarily is prima facie proof of a valid revocation by testatrix, which we do not think can be said to have been overcome by evidence of a contrary intent in the instant circumstances.

The evidence in this case, aside from the fact of cancellation itself, simply fails to show intent clearly and to rebut the strong inference of intent to revoke raised by the cancellation. Appellants argue that testatrix intended only to revoke the nomination of Fortner as executor. But the nature of the cancellation does not support this, for the entire clause naming Fortner executor and devising the realty is clearly lined out, with the most pronounced marks appearing over the words “Mr. & Mrs. W. B. Smith” near the end of it. Further, the word “void” appears not only over Fortner’s name but also over the words “house & grounds” in the realty devise.

The other evidence is troubling in that it does not positively show why testatrix would wish to eliminate the realty devise as it was written in the 1972 will. But neither does it give any indication why she would line through that devise if not to revoke it. There is no evidence that the revocation was made conditional on a later devise of the realty being made by testatrix, so that the doctrine of dependent relative revocation would void the revocation. See Briscoe v. Allison, 200 Tenn. 115, 290 S.W.2d 864 (1956); Stover v. Kendall, 41 Tenn. 557 (1860). The 1974 will, made at or about the same time as the revocation, does not appear incomplete in any way. It is thorough in its treatment of personalty, and makes so complete a disposition of it as to supersede the 1972 will in this regard, as the trial court held. That a “codicil,” consisting of only a few lines, was placed at the end of the 1974 will also suggests that testatrix considered that document complete. In addition, the 1967 will is evidence that a plan of not devising the realty was in testatrix’s mind at one time, for she there provides that the realty be sold but does not allocate the proceeds to anyone. There was testimony that testatrix was dissatisfied with wills she had written prior to 1974, and it is entirely possible that there were reasons not shown in this record, and perhaps known only to testatrix, which compelled her to eliminate the devise of realty intentionally. In any event, there is not nearly sufficient evidence of contrary intent to overcome the strong evidence of revocatory intent supplied by the act of lining out the devise. In such a case, we cannot find that the trial court erred in concluding that testatrix died intestate as to her realty.

Appellee has argued that proper notice of the propoundment of the 1972 will was not given by its proponents to the next of kin and other interested persons, although all had notice of the propoundment of the 1974 will, which began this litigation. We first point out that, contrary to appel-lee’s apparent position, a finding of such a defect in procedure by this Court would require a remand to the trial court for correction before any consideration of the merits could be undertaken here, rather than an affirmance on the ground that the 1972 will could not be held to bind those not in receipt of notice. This is obviously so because a fair and complete consideration of the merits in this case clearly requires that the 1972 will be fully taken into account, as has been done above. We have not addressed ourselves to the notice question, however, since it was clear to us that the 1972 will could not be held to bind anyone in any respect, and that the judgment below would have to be affirmed on the merits. The 1972 will was unfavorable to those alleged not to have proper notice of it. Since on the merits that will was of no effect and the result wholly in favor of those allegedly not notified, who could thus not possibly benefit from presenting further arguments in their favor, a remand to provide them further notice would be a futile waste of time for all concerned. If the alleged defect in notice exists, it is harmless. We have therefore avoided consideration of the notice question, and affirm the judgment below on the merits.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.