author: PER CURIAM:

text:
    Betty Lea NISON, Petitioner-Respondent, v. Jeremiah NIXON, Respondent-Appellant.
    Nos. 36487 and 36488.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 8, 1975.

      Thurman, Nixon, Smith, Howard, Weber & Bowles, James E. Bowles, Hillsboro, for respondent-appellant.
    London & Greenberg, Burton Greenberg, St. Louis, for petitioner-respondent.
   PER CURIAM:

Action by the wife for dissolution of the marriage of Betty Lea and Jeremiah Nixon. The trial court dissolved the marriage and awarded petitioner custody of 15-year-old daughter Penelope and $250 per month for her support; $500 per month for maintenance; the family home and contents; a half interest in a house in Versailles in which petitioner’s mother lives; a $15,000 insurance policy on respondent’s life; a secured promissory note for $37,240, and an automobile. Respondent was awarded the interest of the parties in two business partnerships and small corporations; a $20,000 note owed respondent by one of the corporations; a life insurance policy on respondent’s life; two motor vehicles, and other personal property. Both parties appealed. Neither contests the order dissolving the marriage. Both except to the money awards and orders relating to division of marital property. Petitioner asserts that awards of $500 per month for maintenance and $250 for Penelope’s support are inadequate; that she should have been awarded $1,000 per month for maintenance and $550 per month for the support of Penelope; that $5,000 for an attorney’s fee is overly conservative and should be increased to $6,500. Respondent disputes the propriety of any award of permanent maintenance and asserts error in awarding petitioner (1) the $37,240 note; (2) the $15,000 life insurance policy; (3) the $5,000 attorney’s fee; (4) a $500 additional attorney fee “on account,” and error in retaining jurisdiction to supplement that award after appeal; and (5) $200 for suit money. At issue is the question whether certain items properly constitute marital property. Respondent contends that to declare (1) and (2) above marital property would violate due process because such an order would be based upon an ex post facto law (Laws 1973, p. 412, H.B. No. 315, the so-called “no fault divorce law,” having taken effect after the filing of the original divorce action and before trial). Also at issue is petitioner’s claim that the court erred in not apportioning to her one-half of the marital assets awarded respondent; in not granting to her custody of the 19-year-old son of the parties, and in not awarding her $550 per month for his support. Both appeals, consolidated for briefing and argument, will be disposed of in this opinion. The ex-wife will be referred to as “petitioner” and the ex-husband as “respondent.”

As to the constitutional question: Respondent contends that when this action was filed, prior to the enactment of § 452.-330, RSMo 1969, V.A.M.S., which defines marital property and authorizes the court to divide marital property in such proportions as the court deems just, items (1) and (2) above were unquestionably his own separate property, in which he had a fixed, existing right, and that § 452.330, which took effect after that right vested and after this litigation was commenced, cannot constitutionally be applied retroactively to divest respondent of his property. The original petition was filed March 29, 1973. The new law went into effect January 1, 1974. On January 15, 1974 petitioner filed an amended petition conforming to the new language and concepts. On March 24, 1974 respondent filed his fourth amended answer, conforming to the new law, joining issue on what is and what is not marital property. Neither in his fourth amended answer, nor by separate motion in the trial court, nor by other proceeding, did respondent raise the constitutional question now sought to be raised. Having joined issue on the question what is marital property, and having failed to raise the constitutional question at the first opportunity (and not until his brief on appeal was filed January 20, 1975), respondent has waived the constitutional question.

Careful perusal of the 287-page original transcript, the 29-page supplemental transcript, the several exhibits, 112 pages of briefs and the appendices thereto, and consideration of the arguments of counsel, convinces this Court that the orders of the circuit court relating to the division of the marital property and the award of monthly stipends for maintenance, child support and attorney’s fees and suit money, are just, in the light of the four relevant factors enjoined upon the court for consideration by § 452.330, RSMo 1969, V.A.M.S. Without reciting the supportive evidence in detail, which has no precedential value, we reach _ the same result arrived at by the circuit court and adopt and confirm those orders as reasonable and well considered.

While the trial court did not make a specific finding as to the value of the marital property (estimated by respondent at $362,290 in a statement filed with a bank, and at $207,968 in papers filed by him in this case) we find that the total value of the marital property, as of August 23, 1974, the date of the judgment and decree, was approximately $260,000.

We find that the reasonable value of the property properly awarded petitioner; as her marital property under Schedule A of the judgment and decree is as follows:

We find that the award of these specific items to petitioner represents a just division of the marital property under the circumstances of this case.

With respect to maintenance: Under the evidence petitioner lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs, and under the existing circumstances in the job market for teachers with merely a bachelor’s degree and a life teaching certificate, we find petitioner unable to support herself through appropriate employment, at the time of the judgment and decree. The limited income from the marital property apportioned to petitioner, together with a monthly allowance of $500 for maintenance, constitutes a just and proper provision for petitioner as of the date of the judgment and decree. The maintenance award is subject to modification or termination upon motion based upon changed conditions if and when, upon completion of advanced educational accreditation which the evidence shows petitioner has undertaken to obtain, she qualifies to compete in the job market for teachers with special qualifications, or upon the expiration of a reasonable length of time within which to so qualify.

We find that the allowance of $250 per month for the support of Penelope is reasonable, and that the evidence does not support petitioner’s claim for $550 per month on this account.

We find that the awarding of the remainder of the marital property, nine items listed in Schedule A, to respondent, was proper, and represents a just division, in view of all the circumstances.

One of the compelling circumstances in this case is the proven money-making ability of respondent, a prominent and successful lawyer with a lucrative practice, who has demonstrated his business acumen in' the conduct of several profitable commercial ventures.

In these findings we have included as marital property the net proceeds of an out-of-court settlement of a lawsuit filed by respondent against Merrill-Richardson Drug Company for damages to his eyes and loss of professional income resulting from taking medicine manufactured by that company. The case, in which respondent was the sole plaintiff (his wife not having joined as a party plaintiff or sued separately for loss of consortium), was settled for $60,000. Respondent netted $65,000 after payment of his attorney’s fee. That sum was placed in a separate account in respondent’s name. $25,000 of that money was invested in a commercial partnership, which thrived and increased in value many fold, as did a small business corporation owned by the partnership. Respondent contends that the $55,-000, plus increases in value and assets deriving from investment of part of that money, are the separate, individual property of respondent, not to be considered in any apportionment of marital property; that a spouse’s recovery for personal injuries is a personal and not a marital or community right, as evidenced by the rule that a spouse’s action for loss of consortium does not survive the death of the injured spouse, Ray v. Bartolotta, 408 S.W.2d 838 (Mo. 1966), and by the fact that § 537.020, saving causes of action for personal injuries from abatement, provides that they survive to the personal representative and not to the surviving spouse. The difficulty with this contention is that section 2 of § 452.330, RSMo 1969 defines “marital property,” for purposes of the chapter on Dissolution of Marriage, as “all property acquired by either spouse subsequent to the marriage,” with five specified exceptions, none of which is applicable here. All property in-eludes the property acquired by respondent as a result of the settlement of his personal injury action, and all increases in value thereof.

Considering the necessities of petitioner, the ability of respondent to pay, the time necessarily spent by counsel in preparing and presenting this case to the trial and appellate courts, the legal services rendered and the current value of legal services, we find the allowances for attorney’s fees, and for suit money, to be reasonable. There was no error in retaining jurisdiction to consider application for further allowances of attorney’s fees for services rendered on the appeal.

With respect to the claim of error in not awarding to petitioner the custody of Jeremiah, born to the parties February 13, 1956: At the time the judgment and decree was entered (on August 23, 1974) Jeremiah was 18⅛ years of age. No provision was made in the decree for his custody, perhaps for the reason that on August 13, 1974, Senate Bill No. 438, Vernon’s Missouri Legislative Service, 1974, No. 2, p. 190, became effective, fixing the age of majority at eighteen years, entitling all persons having attained that age to the obligations, etc. of adulthood and relieving them of the disabilities of infancy. Since that time Senate Bill No. 438 has been declared unconstitutional, State ex rel. McNary v. Stussie, 518 S.W.2d 630 (Mo. banc 1974), and therefore the question of Jeremiah’s custody and any appropriate support orders with reference thereto until he reaches age 21 are matters to be determined in a hearing in circuit court, for which this cause must be remanded.

Accordingly, the judgment and decree of August 23, 1974 is affirmed in all respects, but the cause is remanded for the purpose of conducting a hearing on the issue of the custody and support of Jeremiah Nixon, now 19 years of age.

All concur.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Appellant, v. MOTEL SYSTEMS, INC., Appellee.
    Supreme Court of Tennessee.
    May 12, 1975.
    Robert B. Eadie, Metropolitan Dept, of Law, Nashville, for appellant.
    Hunter B. Short, Grissim & Short, Nashville, for appellee.
   OPINION

COOPER, Justice.

Motel Systems, Inc., filed this action in the Chancery Court of Davidson County seeking to recover $1,000.00 of the $2,000.00 in taxes paid to the Metropolitan Government of Nashville and Davidson County, Tennessee, for the privilege of selling at retail alcoholic beverages for consumption on premises located in the urban service district of Metro Nashville. Plaintiff alleged that the defendant had erroneously assessed and levied a $1,000.00 privilege tax as an urban service district and a $1,000.00 privilege tax as a general service district, though authorized to assess and levy only one such tax under the provisions of T.C.A. § 57-157.

The defendant admitted the factual allegations of the complaint, and took the position that T.C.A. § 57-157 granted it the right to levy and collect the privilege tax for each of its service districts.

The action was tried on the pleadings and a stipulation of the parties, which set out the opinion of the Attorney General of the State of Tennessee that defendant could levy only one privilege tax and also included a copy of the ordinances of the defendant assessing a privilege tax for each of its service districts.

The chancellor concluded that “the Defendant’s assessment and tax of the plaintiff both as a general service district and as an urban service district under T.C.A. § 57-157 was erroneous in that said statute, at best being ambiguous, allows the said defendant to assess and tax only as a metropolitan service district or as a general service district and not as both, and, thus, the plaintiff is entitled to recover $1,000.00 of the two $1,000.00 amounts paid under said assessment. . . .” A decree was entered accordingly.

The Metropolitan Government of Nashville and Davidson County appealed, taking issue with the chancellor’s construction of T.C.A. § 57-157.

T.C.A. § 57 — 157 provides as follows:
“57-117. Consumption on premises— Privilege taxes — Tax on retail sales. — It is hereby declared the legislative intent that every person is exercising a taxable privilege who engages in the business of selling at retail in this state alcoholic beverages for consumption on the premises. For the exercise of such privilege, the following taxes are levied for state purposes to be paid annually, to-wit: “(a)... Hotel and Motel.... $1,000.00 ******
“Each county or municipality within which such privilege is exercised is authorized to levy and collect said privilege tax separately. Provided, however, that in any county where metropolitan government prevails, the urban service district shall constitute the county insofar as Section 57 — 152—57—164 is concerned.” (emphasis supplied)

Defendant-Appellant insists that “if the legislature had intended [as found by the chancellor] that only the county or only the municipality where the taxablp privilege is exercised be allowed to collect the tax it would not have used the word ‘separately.’ The legislature would have merely allowed the disjunctive ‘or’ to stand and denote that only one local government entity was to collect the privilege tax for serving mixed drinks.” On the other hand the plaintiff-appellee contends that the language of the statute enables a county or a municipality to levy the privilege tax involved — but not both.

In support of their contentions, both the appellant and appellee cite the same general rules of statutory construction. Of course, the fundamental rule is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute. State ex rel. Rector v. Wilkes, 222 Tenn. 384, 436 S.W.2d 425 (1968). This legislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in the context of the entire statute, without any forced or subtle construction to limit or extend the import of the language. Rector v. Wilkes, supra; Moto-Pep v. McGoldrick, 202 Tenn. 119, 303 S.W.2d 326 (1957); Rose v. Blewett, 202 Tenn. 153, 303 S.W.2d 709 (1957).

When read in this manner, we find ourselves in agreement with the chancellor that the legislature intended that either a municipality or a county could assess a tax on the privilege of selling at retail alcoholic beverages for consumption on the premises. This construction is compatible with the use of the word “each” at the beginning of the paragraph and the use of the disjunctive term “or,” which indicates to us an intent to limit the tax to one local governing body. The appearance of the word “separately” at the end of the sentence, while confusing, does not force a change in the meaning of the statute when considered in its entirety. In our opinion it merely emphasizes that the local tax, by whomever levied, is to be levied separately and additionally to the tax for state purposes referred to in the preceding paragraph of the statute. If otherwise, the use of the word “separately” does no more than create an ambiguity, which must be resolved against the appellant’s taxing authority. Memphis Peabody Corporation v. McFarland, 211 Tenn. 384, 365 S.W.2d 40 (1963); Commercial Standard Insurance Company v. Hixson, 175 Tenn. 239, 133 S.W.2d 493 (1939). Further, in the absence of express words plainly indicating a definite intent to the contrary, there is the presumption that the legislature did not intend the same business to be taxed twice — or three times if we accept appellant’s construction of the statute — for the exercise of the same privilege. Commercial Standard Insurance Company v. Hixson, supra.

All things considered, it is the opinion of this court, as it was of the chancellor, that the tax paid under protest in this case was erroneously collected and that the plaintiff-appellee is entitled to recover it with interest as provided by law.

The decree of the chancellor is affirmed. Costs incident to the appeal are adjudged against the defendant-appellant, Metropolitan Government of Nashville and Davidson County, Tennessee.

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


author: HARBISON, Justice.

text:
    STATE of Tennessee, Petitioner, v. Roy TOWNSEND, Respondent.
    Supreme Court of Tennessee.
    June 23, 1975.

      William C. Koch, Jr., Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel), for petitioner.
    John H. Dinwiddie, Cleveland, for respondent.
   OPINION

HARBISON, Justice.

Respondent was convicted of murder in the second degree and sentenced to serve from ten to twenty years in the state penitentiary in connection with the death of Barbara Alexander on Sunday, January 7, 1973. Respondent was also found by the jury to be an habitual criminal and was sentenced to life imprisonment pursuant to the provisions of T.C.A. § 40 — 2801.

Upon appeal of these convictions by the respondent, the Court of Criminal Appeals reversed the conviction for homicide and remanded the case for a new trial. That Court also held that the previous convictions of the respondent did not meet the criteria set out in T.C.A. § 40-2801 and did not sustain the charges of habitual criminality. The second count of the indictment was, therefore, dismissed as a matter of law.

This Court granted certiorari and has heard oral argument in the case. We will deal separately with the questions of the sufficiency of the evidence and the habitual criminal charges.

A. Sufficiency of the Evidence

The rules under which the appellate courts of this state review criminal cases have been stated so frequently and are so well settled as not to require extensive citation. As stated by the Court in the case of White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962):

“It is a well settled rule that this Court will not reverse a criminal case on the facts unless it is shown that the evidence preponderates against the verdict and in favor of the innocence of the accused.
“The verdict of the jury, approved by the Trial Judge, accredited the testimony of the witnesses for the State, and established their credibility. Such verdict also displaced the presumption of defendants’ innocence, raised a presumption of their guilt, and put upon them here the burden of showing that the evidence preponderates against the verdict and in favor of their innocence.” 210 Tenn. at 84 — 85, 356 S.W.2d at 414.
See also Bacon v. State, 215 Tenn. 268, 385 S.W.2d 107 (1964); Anderson v. State, 207 Tenn. 486, 495, 341 S.W.2d 385 (1960); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909).

The case against the respondent rested almost entirely on circumstantial evidence and upon inferences, deductions and conclusions to be drawn from the testimony of the witnesses, including the respondent, who took the stand and whose credibility was directly in issue in the case. As has been stated by this Court on previous occasions, even in circumstantial evidence eases, the burden rests on the defendant on appeal to show that the evidence preponderates against his guilt and in favor of his innocence. Chadwick v. State, 189 Tenn. 256, 225 S.W.2d 52 (1949); Ford v. State, 184 Tenn. 443, 201 S.W.2d 539 (1947).

It was the theory of the State that the respondent, while on a drunken overnight spree in the company of the deceased, Barbara Alexander, beat her so severely that she died from her injuries. On the other hand, respondent contended that the decedent received her injuries in an automobile accident which occurred as he was taking her home at about 8 o’clock on the morning of January 7, 1973.

It is undisputed in the record that the respondent did go to the residence of the decedent on Saturday afternoon, January 6, and that he was in her company continuously thereafter until the time of the accident. His uncle and his mother both saw the decedent during Saturday afternoon and early evening, and both of them testified that on the occasions when they saw her, there were no visible contusions or injuries about her face or body. The decedent and respondent consumed a large quantity of alcoholic beverages during Saturday afternoon and night, and spent the night in the automobile of the respondent, parked on a rural road. Respondent himself testified that both he and the decedent became intoxicated, and he said that he lost consciousness about 1:30 a. m. When he awoke at about 8 a. m., he said that the decedent was intoxicated. Both had disrobed and had sexual relations. Respondent attempted to assist the decedent in replacing her clothing. While he was driving the automobile in the general direction of the residence of the decedent, respondent failed to make a sharp curve in the road, and his automobile left the highway. A light snow was falling, and the road was slippery. Respondent’s automobile went into a ditch and struck a culvert. Respondent contended that the injuries which the decedent was later found to have sustained were entirely the result of this automobile accident. He himself was found to have been uninjured in the automobile accident, except for some skinned places or bruises, and except for the fact that his left ring finger was broken after the accident. The respondent contended that this occurred in the accident, while the State contends that the injury to respondent’s left hand was consistent with his having struck forcible blows to the decedent.

The decedent was found to have suffered a fractured cheekbone, and there were massive bruises and swelling around her eyes, cuts upon her forehead, and bruises in the chest area. A pathologist, testifying for the State, stated that the cause of death was due to a massive subdura hemorrhage (a hemorrhage under the lining of the brain). He also testified that the trauma to the jawbone or mandible was consistent with a blow by a fist and incompatible with an automobile accident. Both the pathologist and the doctor who attended the decedent in the hospital testified that the location and type of injuries sustained by the decedent did not seem to be those which would result from an automobile accident, and both of them testified that the injuries were consistent with those which would be sustained in a severe beating.

The automobile which respondent was driving was not seriously damaged in the accident, although one wheel and fender did receive some damage. The ditch into which the automobile slid was some three feet or more in depth, and the automobile struck a tile or culvert, breaking a portion of the tile on one end. Respondent telephoned for assistance from a nearby residence, and the owner of that residence also called a neighbor to investigate the accident. This neighbor noticed decedent partially clad on the floorboard of the passenger’s side of the automobile, her head on the seat and her legs underneath the body. He saw some blood on her forehead, called for an ambulance and got a blanket to cover her. An ambulance attendant found decedent unconscious and having difficulty in breathing. He administered first aid, and detected the odor of alcohol both on her person and on the person of the respondent. Another ambulance attendant noted that the pupils of the eyes of decedent were dilated, indicating a head injury, and he also noted that the left cheekbone appeared to be fractured. He testified to severe bruising, swelling and discoloration around the eyes of the decedent. Both of these witnesses noted blood on the front seat of the automobile near the area where the head of decedent was resting. Other pieces of material from the interior of the automobile, including the back seat, were later found to have human blood stains, although an expert witness was unable to determine whether or not the blood type was that of the decedent, because of the small amount of blood contained in the samples.

The decedent died later during the day of January 7, 1973 without regaining consciousness. Respondent consistently denied that he had injured the decedent in any way prior to the accident, and it was his insistence that all of her injuries were sustained when the automobile went into the ditch. He said that he was himself thrown about inside the automobile and that the decedent also struck portions of the interi- or. There was some evidence of an indentation in the dashboard of the automobile, but there was also evidence that this was not a fresh or new indentation.

In our opinion, from a careful and close review of this record, this was a classic case for determination by a jury. We have examined the authorities cited by the Court of Criminal Appeals, in which criminal agency was not found, or in which causation was found to be speculative, particularly the cases of Fine v. State, 193 Tenn. 422, 246 S.W.2d 70 (1952), and Foster v. State, 180 Tenn. 164, 172 S.W.2d 1003 (1943). In our opinion, the facts of these cases are not analogous to those of the present case. If the jury accepted the theory of the State, as they obviously did, there was no room left for doubt or speculation but that the respondent had administered a very severe and brutal beating to the decedent, so severely injuring her that she died from head injuries received therein. If they accepted the theory of the respondent, of course, then there was no criminal agency on anyone’s part, and the injuries sustained by the decedent were the result of an automobile accident. We agree with the Court of Criminal Appeals that the evidence is insufficient to sustain an alternate theory, suggested by the State, that guilt of the respondent could be sustained on the ground that he operated an automobile while intoxicated and that the death was the natural and probable result of that illegal act. There is insufficient evidence of intoxication of the respondent at or about the time of the accident to sustain this alternate theory.

The respondent is shown to have had a criminal record involving sexual offenses. He had previously been convicted of rape, violation of the age of consent and three separate charges of assault with intent to commit a felony, growing out of charges of attempted rape. His credibility, manner and demeanor, together with the demeanor and appearance of all of the other witnesses, were available to the jury and are not available to an appellate court reviewing the transcript. The jury accredited the theory of the State, and their verdict was concurred in by the trial judge.

Under all of the circumstances, and after a careful examination of this record, we are unable to say that the evidence preponderates against the verdict of the jury, and accordingly we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court. Although the respondent did not assign error after the petition for certiorari of the State was granted, we have examined the record and concur with the Court of Criminal Appeals that there was no reversible error committed in the other trial procedures which were the subject of respondent’s assignments of error in the Court of Criminal Appeals.

B. The Habitual Criminal Charge

Respondent moved to quash the second count of the indictment, pertaining to the habitual criminal charge, and this motion, made prior to trial, was renewed at the trial. It was contended that the previous convictions of the respondent, the existence of which was not controverted, did not meet the specifications and requirements of T.C.A. § 40-2801. That section requires proof that the subject have three convictions of felonies, not less than two of which must be among those specified in the stat-"’ ute. None of the convictions of the respondent was specified by statutory citation under T.C.A. § 40-2801.

The section, however, also includes the offenses listed in T.C.A. § 40 — 2712, a statute calling for disfranchisement upon conviction of a number of named offenses, without citations to code sections. Apart from the offense of rape, respondent had not been convicted of any of the other offenses listed in T.C.A. § 40-2712, unless the offense of violation of the age of consent could be said to be within the purview of the offense of “abusing a female child” as listed in T.C.A. § 40-2712.

Listed in T.C.A. § 40 — 2801 as a specified offense is that of abduction of a female from her parents or guardian, T.C.A. § 39— 3708. Also listed is the offense of assault with intent to carnally know or sexually molest a child under 12 years of age, T.C.A. § 39-606. The offense of violating the age of consent, however, as defined in T.C.A. § 39 — 3706, is not specifically listed in the habitual criminal statute, nor in the general statute pertaining to infamy and disfranchisement, T.C.A. § 40-2712.

The question is then presented as to whether the general phrase “abusing a female child” which is listed in the infamy statute, is identical to or includes the offense of violation of the age of consent. The penalty for violation of the age of consent, as specified in T.C.A. § 39-3706, is imprisonment for one to ten years. It is a distinct offense, separately codified and defined, from carnal knowledge and abuse of a female under the age of 12 years, T.C.A. § 39-3705.

While we do not wish to give a technical or unreasonable construction to the habitual criminal statute, neither do we feel that its terms should be broadened by implication. It is the opinion of this Court that the offense of “abusing a female child” is not synonymous with and does not encompass the offense of violating the age of consent, and that respondent’s conviction for the latter offense was insufficient to establish a second specified felony conviction as required in T.C.A. § 40 — 2801.

Accordingly we sustain the action of the Court of Criminal Appeals in dismissing the habitual criminal count of the indictment against the respondent.

It results that the judgment of the Court of Criminal Appeals remanding the case for a new trial on the homicide charge is reversed, and the judgment of the trial court with respect thereto is reinstated. The judgment of the Court of Criminal Appeals with respect to the habitual criminal charge is affirmed. Costs will be taxed to the respondent.

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


author: MATHERNE, Judge.

text:
    Margie Faye PRATER, Administratrix of the Estate of Orlando Byron Prater, Deceased, Appellant, v. Michael BURNS and Jennel Jackson Burns, Appellees.
    Court of Appeals of Tennessee, Western Section.
    Jan. 21, 1975.
    Certiorari Denied by Supreme Court July 21, 1975.

      Warren Miller, Memphis, for appellant.
    J. Harold Ellis, Memphis, Joe H. Walker, Jr., Ripley, for appellees.
   MATHERNE, Judge.

This lawsuit grows out of a tragic incident, wherein a .410 gauge shotgun in the hands of thirteen-year-old Michael Burns discharged and killed fourteen-year-old Orlando Byron Prater. The administratrix sues Michael Burns, and his mother Jennel Jackson Burns for damages due to the wrongful death of her son Orlando Byron Prater.

The trial judge directed a verdict in favor of the defendant mother, and the jury found in favor of Michael Burns, the minor defendant. The plaintiff appeals on the following issues: (1) The trial judge erred in granting a directed verdict for the defendant mother; (2) There is no material evidence upon which to base the verdict in favor of the defendant Michael Burns; (3) The trial judge erred in certain charges given the jury.

The defendant Michael Burns and his brother David Burns, age fifteen years, were good friends with the deceased Byron Prater. These boys were together almost daily, walking in the woods, playing, and on a few occasions they hunted together. On October 25, 1972, when Michael Burns and his brother David arrived home from school, Michael called out to his mother that they were going hunting. The boys then each obtained his respective single shot .410 gauge shotgun, and ammunition. Michael states he loaded his shotgun in the house, he thinks he unloaded it when walking out the door, and he does not remember reloading the weapon. When the two Burns boys left the house and while they were in their yard, Byron Prater rode into the yard on his pony. There is no proof that Byron Prater had a shotgun, and apparently he was not going hunting with the Burns boys on this occasion. The three boys talked a few minutes, whereupon Michael Burns, with this .410 gauge shotgun being held in a position across both his shoulders and behind his neck, turned to go to the woods. When Michael Burns turned, the shotgun he was holding discharged and the load hit Byron Prater in the face, killing him instantly.

There is no explanation of what caused the shotgun to discharge. The proof shows it was in good condition, with no defects. No defect in the ammunition was proven. The weapon was a single barrel single shot .410' gauge shotgun with an outside pull back hammer.

The administratrix, mother of the deceased boy, testified the boys were close friends, and the families have remained friendly since the incident being considered. She stated her son Byron went to the Burns home on that occasion for the sole purpose of visiting with the Burns boys. Her son had on a few occasions hunted with the Burns boys.

The defendant Jennel Jackson Burns testified that she, her son Michael and five other children made up the household, her son David being the oldest child. This defendant stated Michael had owned the shotgun in question for about two months prior to the accident. This mother stated she had hunted with Michael; had shown him how to carry a shotgun, and had told him not to carry it across both his shoulders behind his neck. Mrs. Burns stated there were three shotguns in the home, hers, Michael’s and David’s. She stated she bought the ammunition for the weapons, and it was available to Michael and David. Mrs. Burns said she expected the boys to tell her when they were going hunting, but she had no objection to their hunting at any available time. She stated she was talking on the telephone when her boys came home from school on the day in question, and she did not hear Michael call to her that they were going hunting. Mrs. Burns did not see the accident, and did not know at that time the Prater boy was in her yard.

Michael Burns stated he had hunted with the shotgun about twelve or thirteen times. He had been hunting considerably before obtaining the shotgun in question. Michael said he thought the shotgun was unloaded while he held it across his shoulders and behind his neck on the occasion when it discharged and killed Byron Prater. The evidence establishes there was no ill feeling between the boys. There is no proof of horseplay, pointing or waving of the shotguns during the few minutes the Burns boys talked with young Prater.

As to the defendant mother, Jennel Jackson Burns, the plaintiff alleges her negligence was the direct and proximate cause of the death of Byron Prater wherein she allowed her minor son to have and use a shotgun; failed to properly instruct her son in the use of a shotgun; and failed to supervise her son when he used the shotgun.

The plaintiff charged Michael Burns with negligence wherein he handled a shotgun in a careless and negligent manner; failed to check the shotgun to see if it was loaded; in placing the shotgun on his shoulders behind his neck; and in pointing the shotgun at Byron Prater, all of which constituted the direct and proximate cause of the death of Byron Prater.

The defendants denied all acts of negligence and averred the deceased Byron Prater “was a social guest at the home of the defendants and that his death was the result of a freakish accident and not due to any negligence on the part of these defendants.”

The trial judge directed a verdict for the defendant Mrs. Burns on the ground the deceased child was a social guest on the premises of that defendant. The corresponding duty or degree of care thus imposed by the trial judge upon the defendant Mrs. Burns is that which she owed to a licensee, which is no duty except to refrain from willfully injuring the person or from committing negligence so gross as to amount to willfulness, or from leading him into a trap. Walker v. Williams (1964) 215 Tenn. 195, 384 S.W.2d 447; Hall v. Duke (Tenn.1974) 513 S.W.2d 776.

In the case of Smith v. Salvaggio (1914) 4 Tenn.Civ.App. (Hig.) 727, the Court in discussing the liability of a parent who permits his or her minor child to have possession of a deadly weapon, stated the rule:

“. . . the parent is chargeable with negligence in such cases, if, from all the facts and circumstances, he should have known of the probable danger and injury that might result to others from permitting the child to have the weapon in his possession (citations).
“The rule for such liability upon the part of the parent is not founded upon the relation of parent, but upon the ground of the negligence of the parent in permitting the child to have possession of the dangerous and deadly weapon, when, from • is youth and inexperience, it might be reasonably anticipated, that in the use of such weapon the child would inflict injury upon others.”

We adopt the rule stated in Smith and we hold the duty owing by the defendant Mrs. Burns to the deceased Byron Prater was to not entrust the possession of the .410 gauge shotgun in her minor son Michael Burns, if it might be reasonably anticipated that due to his youth and inexperience he would inflict injury upon others in the use of the weapon.

There is respectable authority for the proposition that under certain circumstances a parent is entitled to a directed verdict in a lawsuit charging the parent with the negligent entrustment of a firearm in a minor child who injures another in the use thereof. These cases seem to hold the parent free of liability as a matter of law where the facts disclose the minor was thoroughly familiar with the use of firearms and had a history of considerable experience in handling same. See and compare: Herndobler v. Rippen (1915) 75 Or. 22, 146 P. 140; Klop v. Vanden Bos (1933) 263 Mich. 27, 248 N.W. 538; Palm v. Ivorson (1905) 117 Ill.App. 535, as cited at 68 A.L. R.2d 791.

In this respect we note the Court in Smith v. Salvaggio, supra, stated “The question of the parent’s negligence in such cases is always for the jury.” Without belaboring the import of the words, “always for the jury,” we realize the issues of negligence and contributory negligence are normally for the jury. More importantly, however, the facts of this lawsuit made the negligence of Mrs. Burns an issue for the jury. Even though Michael Burns had some experience in hunting and Mrs. Burns had trained him in the handling of firearms, the record reveals Michael Burns was so inexperienced, untrained and irresponsible as to not know the shotgun was loaded. From the testimony of Michael Burns describing his action of loading the shotgun in the house, thinking he had unloaded, not remembering whether he reloaded, material evidence was before the jury upon which Mrs. Burns could be found negligent in the entrustment of the shotgun in Michael because of his exhibited total incompetence on the occasion of the injury. The jury could find that due to Michael’s incompetence, Mrs. Burns might have reasonably anticipated injury would result to others by his use of the shotgun.

We hold the trial judge erred in directing a verdict for the defendant Mrs. Burns, and the plaintiff is granted a new trial as to that defendant. The parent’s liability is not based upon the alleged negligent act of the minor in the use of the weapon. The parent’s liability rests alone upon whether there was a negligent en-trustment of the weapon to the minor. Where there is a negligent entrustment of a weapon to a minor, the subsequent discharge of the weapon by the minor which injures another is not such an independent intervening act as will break the chain of causation between the parent’s negligence and the injury which occurred.

We would further note, however, there may arise many situations wherein a minor negligently used a firearm which resulted in injury to another, yet the parent would not necessarily be negligent in permitting the minor to use the weapon. In this regard we hold the proof of the minor’s acts, demeanor and conduct at the time of the injury to another is material evidence on the minor’s experience, training and judgment in the use of the firearm, and is therefore admissible on the issue of the parent’s negligence in permitting the minor to use the weapon. It thus appears most of these lawsuits will present a jury question on the issue of the negligence of the party who permitted the minor to use the weapon.

Considering the position of the minor Michael Burns we have a jury verdict, approved by the trial judge, finding him free of negligence. If there is any material evidence to sustain the verdict it must be approved by this Court, unless the record reveals other reversible error. Wilburn v. Vernon (1969) 60 Tenn.App. 436, 447 S.W.2d 382.

If a person is injured as result of the discharge of a firearm by another, the test of liability is not whether the injury was accidentally or unintentionally inflicted, but whether the defendant is free of negligence, or that the injury was unavoidable. Tally v. Ayres (1856) 35 Tenn. 677; Knott v. Wagner (1886) 84 Tenn. 481, 1 S.W. 155; 94 C.J.S. Weapons § 28, p. 525.

The main thrust of the plaintiff’s appeal as relates to the liability of young Burns is that the thirteen-year-old minor should, as a matter of law, be held to adult standards when he is using a dangerous weapon, and the trial judge erred in not so holding; and the Judge erred in his charge to the jury as to the standard of care to be imposed upon the minor defendant. The plaintiff insists the situation is comparable to that of a minor driving an automobile wherein he is held to the same degree of care as an adult. Powell v. Hartford Accid. & Indem. Co. (1966) 217 Tenn. 503, 398 S.W.2d 727.

In the Powell case the Court found the defendant minor, age 14 years, was issued a special restricted license, or permit under T.C.A. § 59-704(g) to operate a motor driven cycle. When the license was so obtained the minor demonstrated his “ability to exercise ordinary and reasonable control” of the motor driven cycle as required by Section 59-704(g); and, he also took an examination including “a test of the applicant’s eyesight, his ability to read and understand highway signs regulating, warning, and directing traffic, his knowledge of the traffic laws of this state, and shall include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle,” as required by T.C.A. § 59-707. The minor also had to produce positive proof of his age. We also note certain persons are not eligible for a license to operate a motor vehicle, T.C.A. § 59 — 705. The Court thus very properly held all persons who operate motor vehicles on the public highways of Tennessee are under the same duty of care.

Looking to the statutes governing the possession and use of a gun for hunting we find a very different situation. In Tennessee children under the age of 16 years are required to pay $3.00 for a resident’s hunting license, T.C.A. § 51-202 and 51 — 203. Under T.C.A. § 51 — 207, the owners and tenants of farm lands, and their dependent children, may hunt on their lands, or the lands under their control with the permission of the owner, without a hunting license. There is no statutory requirement that a person display any degree of skill, judgment, knowledge or experience in the use of firearms, or be of a certain age, in order to obtain a hunting license. We also note' a minor under the age of 16 years is not required to have a federal migratory waterfowl stamp while hunting that type game, T.C.A. § 51 — 201; a similar exemption being recognized by the federal government, 16 U.S.C.A., Migratory Birds, § 718, p. 467.

We note another legislative declaration on the subject in the Criminal Code of this state, wherein it is a crime to sell, loan or give to any minor a pistol, bowie knife, dirk, hunter’s knife, or like dangerous weapon, except a gun for hunting, T.C.A. § 39 — 4905.

We conclude the established public policy of this state is that a child of any age may possess, own, use and employ a gun for hunting [subject to laws governing license, seasons, bag limits, etc.] without meeting any requirement as to age, ability, experience, knowledge or judgment in the use of the weapon. Our statutes on the subject basically adhere to the accepted custom of an earlier day, when a child of sufficient size and strength to hold and aim a hunting weapon, not only usually did so in the pursuit of game, but normally was expected to do so. We hold the .410 gauge shotgun in question was, under the facts, possessed by Michael burns as a “gun for hunting.” We therefore conclude the ruling in Powell is not applicable to the present lawsuit, and Michael Burns is not, as a matter of law, to be held to adult standards of care in his use of the weapon.

Regardless of the lawfulness of the possession and use of the weapon by Michael Burns, the gist of this lawsuit against him is his failure to exercise such ordinary care as, under the circumstances, he should have exercised so as to avoid the injury. This brings into focus the standard of care expected of thirteen-year-old Michael Burns.

In this regard the trial judge charged the jury:

“This suit is based on negligence which may be defined as a failure to use ordinary care; that is, that degree of care and prudence that an ordinary prudent person would use under like conditions and circumstances. Now, gentlemen, in this case you have to consider the fact that you are dealing with a young man here—
“Gentlemen, I don’t want to be incorrect. I believe it was fourteen at the time of this accident?
“MR. ELLIS: Thirteen.
“THE COURT: Thirteen at the time of this accident. Consider what a young man might do under those circumstances at that time; how he would act. That is what you’ve got to consider in this case.”
After some deliberation, the jury returned into the courtroom and the following transpired:
“THE COURT: Gentlemen of the Jury, I understand you have a question for the Court, something you didn’t understand or something.
“THE FOREMAN: Your Honor, we • seem to have a difference of opinion in there as to just exactly what we’re voting on. Some say we’re voting the negligence of the boy itself of — The way we understood — Some of us understood you to charge us that — Are we voting on did he do anything that any other normal 13-year-old boy would have done in the same situation?
“Could you go over the — What constitutes negligence in the Court’s — because we’re supposed to decide that and we can’t do it. That’s the facts. Do you understand?
“THE COURT: Yes, sir.
“Gentlemen, before you can find for the plaintiff in this case you must first find that there is negligence on the part of the defendant. Now, in considering - the question of negligence I’ll charge you, or recharge you, on this question of negligence.
“This suit is based on negligence which may be defined as a failure to use ordinary care; that is, that degree of care and prudence that an ordinary prudent person would use under like conditions and circumstances. By that I mean what would a young man thirteen or fourteen years old do? What would be his actions? You’re going to have to consider whether he was negligent as a thirteen- or fourteen-year-old minor in his actions out there that day.”

The presumption is that a child between the ages of seven and fourteen years is incapable of negligence, but the presumption is not conclusive and may be rebutted by evidence of his capacity for negligence. Bailey v. Williams (1960) 48 Tenn.App. 320, 346 S.W.2d 285, and the authorities therein cited. This question is normally one of fact for the jury. Bailey v. Williams, supra.

The question therefore is reduced to the minor’s capacity for negligence. In other words is the minor, in the light of the circumstances by which he injured another, of such age, ability, intelligence, training and experience that he is capable of being negligent in his acts or failure to act in that particular circumstance out of which the other party was injured.

The charge as given by the trial judge mentioned only the age of the defendant Michael Burns as a factor to be considered by the jury in passing on his capacity for negligence under the circumstances. What “a young man might do under those circumstances at that time; how he would act,” as originally charged; and “By that I mean what would a young man thirteen or fourteen years old do? What would be his actions?” as later charged in answer to an inquiry by the jury on the subject, do not properly state the law, and do not properly define to the jury the factors to consider in determining if Michael Burns, under the circumstances, is to be held capable of negligence. We would here note, as did then Presiding Judge McAmis in the Bailey case, supra, the charge as given by the trial judge in that lawsuit fully and correctly sets forth the law on this subject.

There was evidence of the grades Michael Burns made in school, his experience in hunting, the training his mother had given him in the handling of firearms, as well as his acts and failure to act on the occasion of the death of young Prater. It is of paramount importance that the jury be correctly charged on the issue of young Burns capacity for negligence. The failure to so charge is reversible error.

It results the judgment of the trial court is reversed and this lawsuit is remanded for a new trial. The cost of this appeal is adjudged against the defendant-appellees, the costs in the trial court to be there adjudged on the new trial.

The Honorable W. E. Quick, by appointment of the Chief Justice of the Supreme Court of Tennessee, sat on this lawsuit in the place of Presiding Judge C. S. Carney.

NEARN, J., and QUICK, Special Judge, concur.


author: O’BRIEN, Judge. OLIVER, Judge

text:
    Maurice DONALDSON and Clarence Richard Vaughn, Petitioners, v. James H. ROSE, Warden, Tennessee, State Penitentiary, Respondent.
    Court of Criminal Appeals of Tennessee.
    Feb. 27, 1975.
    Certiorari Denied by Supreme Court, July 21, 1975.
    Robert L. Ballow, Nashville, for Donaldson.
    Wm. J. Faimon, Nashville, for Vaughn.

      R. A. Ashley, Jr., Atty. Gen., Wm. J. Haynes, Jr., Asst. Atty. Gen., Aaron Wyck-off, Asst. Dist. Atty. Gen., Harold B. McDo-nough, Jr., Asst. Dist. Atty. Gen., Nashville, for respondent.
   O’BRIEN, Judge.

OPINION

These defendants have filed similar petitions for writ of habeas corpus in the trial court requesting their release from confinement in the penitentiary on the grounds that their pleas of guilty to armed robbery under a joint indictment were involuntary for the reason that the indictment had been previously disposed of by nolle prosequi with the consent of the trial court.

It appears that on September 19, 1972, petitioners came to trial with several co-defendants on a charge of armed robbery. After the jury was impaneled and testimony commenced, it came to the trial court’s attention that two of the attorneys appointed to represent co-defendants in the case had, while serving as special judges, issued arrest warrants for some of the defendants. Mr. John Kyle, a member of the public defender’s staff representing James Robert Morehead, had, as special judge, issued the arrest warrant for the same defendant he had been assigned to represent. Mr. Mose Davie, appointed to represent Maurice Donaldson, had issued the arrest warrants for Mark J. Beasley, and William Gentry Davis. All of these warrants were issued for the defendants in the case on trial. In the course of issuing the warrants, Mr. Davie had interviewed the prosecutrix in this case. In the interest of fairness and justice, to avoid jeopardizing any of the defendants by proceeding further, and to eliminate any question of doubt as to competent and proper representation of the defendants by counsel of record, the trial court suggested that a mistrial should be granted under the authority of Malouf v. State, 199 Tenn. 496, 287 S.W.2d 79. The trial judge polled counsel for the various defendants to determine if there was an objection to the court declaring a mistrial. He was advised by retained counsel for defendant Vaughn that there was no objection, and by appointed counsel for defendant Donaldson that the defendant did not disagree, and felt that a mistrial would be proper. Through counsel, one of the other defendants objected to a mistrial. The court declined to grant a severance and this defendant successfully contested a retrial upon his armed robbery indictment in the federal courts. See Thomas v. Beasley, 491 F.2d 507 (6th Cir. 1974) cert. denied 417 U.S. 955, 94 S.Ct. 3083, 41 L.Ed.2d 674 (1974). We do not find the facts of that case warrant relief to these petitioners.

Subsequently, on March 22, 1973, each of the petitioners here entered pleas of guilty to the original indictment against them, and as a result of the guilty pleas each was sentenced to fifteen years in the State Penitentiary.

Hearings were granted on the petitions for habeas corpus in the trial court. Based on the petitions, the answers filed on behalf of the state, argument of counsel, and a review of the record in the matter, the court expressed the opinion that (1) the State had not asked for a nolle prosequi in the original case; (2) petitioners had consented to a mistrial; (3) petitioners knowingly and intelligently entered guilty pleas; (4) petitioner Donaldson was represented by competent, qualified, appointed counsel, and petitioner Vaughn was represented by privately retained counsel; (5) the petitions conclusively showed petitioners were not entitled to relief. The petitions were dismissed without the introduction of further evidence.

On this appeal it is assigned for error that the petitions for writ of habeas corpus should not have been dismissed without an evidentiary hearing on the grounds that (a) there had been a consent to the mistrial, and (b) that petitioners had knowingly and intelligently entered guilty pleas.

Petitioners do not dispute the rationale of the ruling cases in this state on the doctrine of former jeopardy, to the effect that the occurrence of certain conditions may justify discharge of the jury in bar of a plea of double jeopardy. Etter v. State, 185 Tenn. 218, 205 S.W.2d 1 (1947); State v. Malouf, 199 Tenn. 496, 287 S.W.2d 79 (1956), and Jones v. State, 218 Tenn. 378, 403 S.W.2d 750 (1966). They say, however, the more recent United States Supreme Court decisions have overridden the authority of these cases as they apply to the mandate of the United States Constitution. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), is cited as authority for this theory. We think reliance on the Jorn case is misplaced. While dealing wholly with federal criminal proceedings this case clearly enunciates the principles which have been followed in our Tennessee cases. In discussing some of the circumstances in which retrial is precluded when the initial proceedings are aborted prior to a verdict without the defendant’s consent, the Jorn court quoted with approval from United States v. Perez, 22 U.S. 579, 9 Wheat 579, 6 L.Ed. 165 (1824) as follows:

“We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.”

We also are satisfied that Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 28 L.Ed. 707 (1969), cited by defendant, adds no more to sustain the assignment than to emphasize that the double jeopardy prohibition of the fifth amendment to the federal Constitution applies to the States through the fourteenth amendment.

It follows then that the complaint of petitioners is without merit. The trial court found that petitioners had agreed to a mistrial in the course of the original proceedings. We agree. Be that as it may, there is no doubt that the decisions in this state on the matter of double jeopardy fully meet the criteria fixed by the United States Supreme Court, and the consent of the defendants to a mistrial under the circumstances of this case was not required. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendants consent and even over his objection, and he may be retried consistently with the fifth amendment. Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

The argument that the guilty pleas submitted were involuntary, is also without merit. The record of the guilty plea proceedings on which the trial judge below based his decision, plainly indicates that Vaughn took advantage of having a separate indictment for armed robbery placed on the retired docket as part of his plea bargain; while Donaldson had the benefit of an additional guilty plea to a lesser included offense on another charge of armed robbery, as well as having four other indictments on which he was charged placed on the retired docket. While it is true that those cases placed on the retired docket are still subject to further prosecution. State ex rel Lewis v. State, 1 Tenn.Cr.App. 535, 447 S.W.2d 42, petitioners had the advantage of what is most likely to be the final disposition of those cases by virtue of their plea bargains. It seems apparent that this was the incentive for their guilty pleas, which we agree were voluntary, thereby foreclosing the right to raise an independent claim relating to the deprivation of constitutional rights occurring prior to their entry. See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

The petitions in this case do not meet the mandatory requirements of T.C.A. Section 23-1807 and T.C.A. Section 23-18-23, and were properly considered, and dismissed under the provisions of T.C.A. Sections 40-3808, 3809.

The judgment of the trial court is affirmed.

WALKER, P. J., concurs.

OLIVER, J., concurred in result and filed opinion.

OLIVER, Judge

(concurring).

I concur in the result, but upon different grounds.

A knowledgeable and voluntary guilty plea constitutes a waiver of the right to claim double jeopardy. 22 C.J.S. Criminal Law § 277, p. 712; Kistner v. United States, 332 F.2d 978 (8th Cir. 1964); Smith v. United States, 359 F.2d 481 (8th Cir. 1966); Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967), cert. den. 88 S.Ct. 128, 389 U.S. 865, 19 L.Ed.2d 136; United States v. Hoyland, 264 F.2d 346 (7th Cir. 1959), cert. den. 361 U.S. 845, 80 S.Ct. 98, 4 L.Ed.2d 83. In Kistner v. United States, supra, the Court said:

“. . . Constitutional immunity from double jeopardy is a personal defense which must be affirmatively pleaded at trial and is waived by a plea of guilty along with all non-jurisdictional defects, facts and defenses. See Harris v. United States, 237 F.2d 274 (8th Cir. 1956) and Harris v. United States, 288 F.2d 790 (8th Cir. 1961).”

See also: People v. Burks, 204 C.A.2d 494, 22 Cal.Rptr. 414; Cox v. State, 197 Kan. 395, 416 P.2d 741; State v. Ward, 198 Kan. 61, 422 P.2d 961; Commonwealth v. Therrien (Mass.S.Ct.), 269 N.E.2d 687; People v. Walker, 28 Mich.App. 650, 184 N.W.2d 742; State v. Gainey, 265 N.C. 437, 144 S.E.2d 249; Barnett v. Gladden, 237 Or. 76, 390 P.2d 614, cert. den. 379 U.S. 947, 85 S.Ct. 445, 13 L.Ed.2d 545; Commonwealth v. Nyman, 218 Pa.Super. 221, 275 A.2d 836.

Moreover, equally conclusive in this case, the double jeopardy question is waived if it is not presented to the trial court before entering upon a trial upon the merits, and may not be raised for the first time in a collateral proceeding. 22 C.J.S. Criminal Law § 277, p. 711; Morlan v. United States, 230 F.2d 30 (10th Cir. 1956); Bracey v. Zerbst, 93 F.2d 8 (10th Cir. 1937); Callahan v. United States, 35 F.2d 633 (10th Cir. 1929); Brady v. United States, 24 F.2d 399 (8th Cir. 1928); United States v. Scott, 150 U.S.App.D.C. 323, 464 F.2d 832 (D.C.Cir. 1972); Barker v. Ohio, 328 F.2d 582 (6th Cir. 1964); Whitten v. Tomlinson, 160 U.S. 231, 16 S.Ct. 297, 40 L.Ed. 406; People v. Westwood, 154 Cal.App.2d 406, 316 P.2d 23; Ex parte Hess, 45 Cal.2d 171, 288 P.2d 5; People v. Pollock, 31 Cal.App.2d 747, 89 P.2d 128; People v. Scales, 18 I11.2d 283,164 N.E.2d 76; State v. Ford, 117 Kan. 735, 232 P. 1023; People v. Powers, 272 Mich. 303, 261 N.W. 543; State ex rel. Dunlap v. Utecht, 206 Minn. 41, 287 N.W. 229; Lowther v. Maxwell, 175 Ohio St. 39, 191 N.E.2d 172; People ex rel. Williams v. Follette, 292 N.Y.S.2d 190, 30 A.D.2d 693, affd. 24 N.Y.2d 949, 302 N.Y.S.2d 584, 250 N.E.2d 71. See also: 39 C.J.S., Habeas Corpus § 23.


author: WALKER, Justice.

text:
    Claude C. COWARD et al., Petitioners, v. GATEWAY NATIONAL BANK OF BEAUMONT, Respondent.
    No. B-4933.
    Supreme Court of Texas.
    July 9, 1975.
    Rehearing Denied July 30, 1975.
    Gordon R. Pate, Orgain, Bell & Tucker, Gilbert I. Low, Beaumont, for petitioners.
    Wells, Peyton, Duncan, Beard, Green-burg, Hunt & Crawford, Phil Dunlap, Beaumont, for respondent.
   WALKER, Justice.

Article 2226, Vernon’s Ann.Tex.Civ.St., authorizes the recovery of a reasonable amount as attorney’s fees where certain types of claims are not paid or satisfied thirty days after presentment and judgment is finally obtained thereon. The statute was amended in 1971 to add the following provisions:

The amount prescribed in the current State Bar Minimum Fee Schedule shall be prima facie evidence of reasonable attorney’s fees. The court, in non-jury cases, may take judicial knowledge of such schedule and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.

In our opinion the quoted provisions apply only in suits to establish one or more of the claims covered by the statute, and the fee suggested in the State Bar Minimum Fee Schedule is not conclusive even when there is no evidence to the contrary.

This suit was brought by Gateway National Bank of Beaumont against Claude C. Coward and David Don Spell to recover the principal balance, interest and attorney’s fees on four notes in the aggregate face amount of $17,474.47. Each of the notes provides for “reasonable” attorney’s fees. The trial court rendered summary judgment in plaintiff’s favor for the unpaid principal balance of $11,760.75 plus an attorney’s fee of $2,000.00, interest and costs. The Court of Civil Appeals suggested a remittitur of $39.88 of the attorney’s fee. When the remittitur was filed, the judgment of the trial court was reformed and affirmed. One justice dissented on motion for rehearing. 515 S.W.2d 129. Since the amount of a “reasonable” attorney’s fee has not been conclusively established, we reverse the judgments of the courts below and remand the cause to the trial court.

Defendants do not question their liability on the notes. They contend only that the trial court erred in awarding attorney’s fees in a summary judgment proceeding on the record in this case. In connection with the motion for summary judgment, plaintiff’s attorney filed an affidavit stating that he is a member of the State Bar of Texas and engaged in the private practice of law, that he is familiar with the attorney’s fees customarily charged in litigation of the type before the court, and that in his opinion $2,000.00 is a reasonable attorney’s fee. This expression of opinion by an expert witness is not conclusive and does not support the award of attorney’s fees in the summary judgment proceeding. See Gibbs v. General Motors Corp., Tex.Sup., 450 S.W.2d 827; Broussard v. Moon, Tex.Sup., 431 S.W.2d 534; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155.

The award of attorney’s fees by the trial court was evidently based on the affidavit, but the Court of Civil Appeals did not uphold the award on that basis. Although the trial court had not been requested to do so, the intermediate court took judicial notice of the State Bar Minimum Fee Schedule. The minimum fees suggested in the schedule for “Commercial Collections” are: (1) a contingent fee of 33½% of the amount collected or realized, or (2) a non-contingent fee of 162/3% of the amount involved. Since the record is silent as to the fee arrangement made by plaintiff with its attorney, the Court of Civil Appeals applied the smaller percentage. On the basis of this calculation, it concluded that the $2,000.00 allowed by the trial court is $39.88 in excess of the minimum fee recommended in the schedule and ordered a remittitur of the $39.88.

Article 2226 authorizes the recovery of attorney’s fees in suits “for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts.” Our courts have not previously decided whether the provisions added by the 1971 amendment apply to suits on other claims. Although the minimum fee schedule was mentioned in Bottoms v. Lyons, Tex.Civ.App., 487 S.W.2d 813 (no writ), which was a suit to recover on a note and other indebtedness, the schedule had no effect on the disposition of the appeal. In Lancaster v. Wynnewood State Bank, Tex.Civ.App., 470 S.W.2d 78 (no writ), the plaintiff argued unsuccessfully that an award of attorney’s fees on a note was harmless error in view of the provisions of the schedule, but the 1971 amendment to Article 2226 evidently had not become effective when the case was tried. The statute was urged by the plaintiff in Audiomedia, Inc. v. Rollins Outdoor Advertising, Inc., Tex.Civ.App., 477 S.W.2d 370 (wr. ref. n. r. e.), which was a suit to recover amounts claimed to be owing under two written contracts, but the appellate court did not hold or state that the statute was applicable. It did refer to the schedule and held that an attorney’s fee in the amount awarded by the trial court there was not supported by the record.

If the Legislature had intended for the amount prescribed in the minimum fee schedule to be prima facie evidence of reasonable attorney’s fees in all types of suits, there.was no reason to amend Article 2226. The intent could have been more clearly and readily expressed by simply adopting a separate statute. Instead of doing this, the lawmakers added the provisions quoted above to Article 2226, which deals only with certain types of claims. Their intention to limit the scope of the 1971 amendment to the claims mentioned in the statute is clearly expressed in the caption of the Act, which reads as follows:

An Act relating to the recovery of attorney’s fees in certain suits in which a person, corporation, partnership or other legal entity obtains judgment for an unpaid claim, amending Article 2226, Revised Civil Statutes of Texas, 1925, as amended; and declaring an emergency. (Emphasis supplied)

We accordingly hold that Article 2226 as amended in 1971 applies only in suits on one or more of the claims described in the statute, and the present suit is not on such a claim. A somewhat more difficult question is whether the minimum fee schedule is, in the absence of proof to the contrary, conclusive in a summary judgment proceeding in a suit to which the statute applies. Prior to the decision in the present case, two Courts of Civil Appeals concluded that it is. McDonald v. Newlywed’s, Inc., Tex.Civ.App., 483 S.W.2d 334 (wr. ref. n. r. e.); Superior Stationers Corp. v. Berol Corp., Tex.Civ.App., 483 S.W.2d 857 (no writ). See also Hyden, The Recovery of Attorney Fees in Texas, 4 St. Mary’s L.J. 340. Two other intermediate courts have held to the contrary. Stafford v. Brennan, Tex.Civ.App., 498 S.W.2d 703 (no writ); Duncan v. Butterowe, Inc., Tex.Civ.App., 474 S.W.2d 619 (no writ). We agree with the latter view.

The term “prima facie evidence” is ambiguous at best. As Professor Wig-more points out, it is sometimes used- “as equivalent to the notion of a presumption,” i. e. it entitles the proponent to an instructed verdict on the issue in the absence of evidence to the contrary. The term is also used to mean that the proponent has produced sufficient evidence to go to the trier of fact on the issue. See 9 Wigmore on Evidence, 3rd ed. 1940, § 2494; 1 McCormick and Ray, Texas Law of Evidence, 2nd ed. 1956, § 55; Dodson v. Watson, 110 Tex. 355, 220 S.W. 771; Alston v. State, 154 Tex.Cr. 148, 226 S.W.2d 443. It is in the latter sense that the term was used in Article 2226. After providing that the amount prescribed in the minimum fee schedules shall be prima facie evidence of reasonable attorney’s fees, the Legislature authorized the court, in non-jury cases, to take judicial notice of such schedule “and of the contents of the case file in determining the amount of attorney’s fees without the necessity of hearing further evidence.” In other words the court may examine the case file and is to make a determination of the amount of attorney’s fees even if no other evidence is offered. This responsibility may be discharged by the trial judge in his role of trier of fact in the conventional trial of a non-jury case but not in passing on a motion for summary judgment. It is clear then that the amount prescribed in the schedule is not conclusive but will, if the statute is otherwise valid and effective, simply support a determination made by the trier of fact. Any holdings or statements to the contrary in Newlyweds and Superior Stationers are disapproved.

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

      . See Goldfarb v. Virginia State Bar, -U.S. -, 95 S.Ct. 2004, 44 L.Ed.2d 572.


author: REAVLEY, Justice.

text:
    Gus HALL et al., Petitioners, v. Helen Frances WHITE, Respondent.
    No. B-5038.
    Supreme Court of Texas.
    July 9, 1975.

      Foreman, Dyess, Prewett, Rosenberg & Henderson, Arthur D. Dyess, and Jesse R. Pierce, Houston, for petitioners.
    Warren L. Eddington and C. Anthony Friloux, Jr., Houston, for respondent.
   REAVLEY, Justice.

The complaint is that affidavits and testimony from prior probate proceedings and trial were admitted into evidence in the trial of this will contest in the district court. The Court of Civil Appeals upheld the admission of the evidence. 617 S.W.2d 683. We reverse and remand to the district court.

Bailey C. Hall died in 1968. An instrument dated in 1965 was admitted to probate in September, 1968, by the Judge of Probate Court No. 2 of Harris County. This document names Helen Frances White as independent executrix of the estate and devisee of the property. It appears to have been witnessed by Mrs. John W. Weaver and John W. Weaver.

In 1969 this suit was instituted by the brothers of the deceased to cancel the order admitting this will to probate. After trial in the probate court the will was upheld; an appeal was then taken to the district court under the procedure in effect in 1971.

The issue before the district court was whether Mr. and Mrs. Weaver had signed this will in the presence of the testator as witnesses to its execution. The contestants presented evidence which tended to show that the signatures were placed upon the document after 1965 and after the time of its signing by the testator.

The evidence in the record that the Weavers were proper witnesses to the execution of the will consists of an affidavit by Mrs. Weaver executed and filed with the probate court in September of 1968 at the time of original admission to probate, and the former testimony of Mrs. Weaver during the contested trial before the probate court.

The Court of Civil Appeals has held that the affidavit is admissible under the provisions of the Probate Code, Y.A.T.S. §§ 15, 18 and 89. The Probate Code requires the county clerk to keep in the probate minutes the testimony upon which wills are admitted to probate and it makes certified copies of the probate minutes admissible in court. Sec. 89 provides: “Certified copies of . the record of testimony . . . may be used in evidence, as the original might be, on the trial of the same matter in any other court, when taken there by appeal or otherwise.” The emphasized words were added by the Legislature in the passage of the Texas Probate Code of 1955. By the addition of these words, the Legislature prevented the use of the record of an affidavit to prove the truth of matter asserted therein when that matter is a contested issue in a subsequent trial.

As for the former testimony of Mrs. Weaver which was given during the first trial and then read from a transcript at the second trial, its admissibility depends upon whether the predicate laid satisfies the former testimony exception to the hearsay rule. There is no question but that the testimony of Mrs. Weaver at the former trial was given on the same issues before the same parties, and that full opportunity for cross-examination existed. The only question is the unavailability of the witness. Former testimony is not admissible if a witness is available at the subsequent trial. The party offering the former testimony must therefore prove unavailability, which means in Texas “that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.” Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 697 (1941); Houston Fire & Casualty Insurance Co. v. Brittian, 402 S.W.2d 509 (Tex.1966).

It does not suffice to show that the witness on the day of the subsequent trial is beyond the subpoena jurisdiction of the court. In White v. Natural Gas Pipeline Co., 444 S.W.2d 298 (Tex.1969), the witness whose former testimony was erroneously admitted was 800 miles distant from the courthouse on the occasion of the subsequent trial. The subpoena power of the trial court reached only 100 miles. Rule 176, Texas Rules of Civil Procedure. However, the testimony of the absent witness could have been taken by deposition, and for this reason the Court there held that the witness was “not outside of the jurisdiction of the court.” 444 S.W.2d 303. Since the deposition of a witness residing outside of Texas may likewise be obtained (either by the witness voluntarily coming to Texas for that purpose or by taking his deposition at his place of residence pursuant to Art. 3746, Vernon’s Ann.Civ.St.), the Texas rule has not been made to turn on whether the witness is within or without the state. Morris v. Davis, 292 S.W. 574 (Tex.Civ.App. 1927, writ ref’d); Stohn v. Bryant, 283 S.W.2d 299 (Tex.Civ.App.1955, writ ref’d n. r. e.); Carter v. Irvine, 77 S.W.2d 247 (Tex. Civ.App.1934, no writ).

Mrs. Weaver left Harris County on a vacation trip the week before this trial began. It was only temporary and not a permanent absence. Respondent’s arguments about the difficulty of an attorney in getting his case to trial and in knowing the whereabouts of all of his witnesses on the occasion of every setting are all reasons why he needed a deposition and are arguments that might have been made to the trial court in support of a motion for continuance. Respondent made no motion for continuance, nor does the record indicate that he gave advance notice to the petitioner that he would rely upon the former testimony of Mrs. Weaver.

It may seem incongruous that Texas would allow the admission of deposition testimony without regard to the availability of the witness (Rule 213, Tex.R.Civ.P.) and exclude former testimony where the witness is available. Distinguished writers have said that there is no distinction between the two. E. g., 5 Wigmore, Evidence § 1401 (Chadbourn rev. 1974). There is, indeed, no distinction so far as the lack of personal observation of the witness by the trier of fact. There is a difference to the adversary in his preparation for trial and in his meeting the adverse testimony. The contesting attorney is not so likely to have ready reference to transcribed testimony given at a former trial as he is to have available a copy of a deposition. There may be no written transcription of the former testimony; the rule has not required its proof to be by a method of that reliability. McCormick, Evidence § 260 (2d ed. 1972). Furthermore, the deposition rules now require that the witness supplement his testimony if, after the giving of the deposition, he discovers that he has testified incorrectly or that the facts have changed. Rule 186a, Tex.R.Civ.P. In the taking of a deposition the attention of a witness may be called to this duty to supplement, and further obligation of this nature may be placed upon the witness by agreement of the parties. No such duty may be imposed with respect to testimony at a former trial.

The affidavit and former testimony of Mrs. Weaver were not admissible. The judgments of the Court of Civil Appeals and the district court are reversed, and the cause is remanded to the district court.


author: DANIEL, Justice.

text:
    ALLEN SALES AND SERVICENTER, INC., et al., Petitioners, v. Shelton RYAN et al., Respondents.
    No. B-5063.
    Supreme Court of Texas.
    July 9, 1975.
    L. A. Nelson, Denton, for petitioners.
    Michael J. Whitten, Denton, for respondents.
   DANIEL, Justice.

This is a suit upon an installment note, wherein the holders seek to accelerate the payment of the entire note because of the failure of the maker to pay the first installment on its due date. The question presented by this appeal is whether the holders, based upon an optional acceleration clause, can accelerate the payment of the entire note without making demand upon the maker of the note for payment of the overdue installment.

On May 28, 1971, Allen Sales and Servi-center, Inc. executed an installment note payable to “Shelton Ryan and Wayne Ryan or order” in Denton, Denton County, Texas. The principal of $10,000 was to be repaid in five successive annual installments of $2,000 each, plus accrued interest on the unpaid balance at a rate of 7.5 percent per annum. The note provided that the first installment was to be paid June 1, 1972, with the remaining installments to be paid on June 1 of each following year. In his representative capacity as president, N. R. Allen signed the note on behalf of its maker, Allen Sales and Servicenter, Inc. On the back of the note, in his individual capacity, N. R. Allen unconditionally guaranteed the payment of the note.

On June 1, 1972, when the first installment was due, no payment was made. On June 5, without having made any demand or presentment for the payment of the overdue installment, the payees and holders sent a letter by certified mail to Allen Sales and Servicenter, Inc. in which it was said: “It is our option and desire to declare the total note plus interest due in full and said note to be paid by June 15, 1972.” This letter was received by Allen on June 6. The option to accelerate the entire balance of the note was granted to the holders in the following language of the note:

“It is understood and agreed that the failure to pay this note, or any installment as above promised, or any interest hereon, when due, shall, at the option of the holder of said note, mature the full amount of said note, and it shall at once become due and payable.”

On June 13, Allen Sales and Servicenter, Inc. tendered to the Ryans the $2,000 installment due on the principal and the interest which had accrued to June 1. This tender was refused. On June 19, the Ryans filed this suit against Allen Sales and Servi-center, Inc. and N. R. Allen for the entire $10,000 principal, the interest, and attorney fees.

Since the disposition of the case turns upon the legal question of whether a payee of an installment note must make demand for the payment of an overdue installment prior to exercising an option to accelerate the balance of an installment note, both parties filed motions for summary judgment. The trial court granted summary judgment for the Ryans, the payees and holders of the note, and the court of civil appeals affirmed. 517 S.W.2d 700. We reverse and remand the cause to the trial court with instructions which preclude the acceleration of the note.

It is undisputed that the Ryans made no demand for payment of the overdue installment prior to exercising their option to accelerate, and it is the Ryans’ position that no demand was necessary. In support of this position, the Ryans urge § 3.501 of the Texas Business and Commerce Code, V.T. C.A.:

“(a) Unless excused (Section 3.511) presentment is necessary to charge secondary parties as follows:
“(3) in the case of any drawer, the acceptor of a draft payable at a bank or the maker of a note payable at a bank, presentment for payment is necessary

Since the maker is not a secondary party and since this note was not payable at a bank, § 3.501 does not expressly require presentment to charge the maker for the overdue installment. As revealing the intent of the legislature to be that demand upon the maker is unnecessary to exercise an optional acceleration clause, the Ryans cite Comment 4 following § 3.501:

. . Under this section as under the original act presentment for payment is not necessary to charge primary parties (makers and acceptors of undorniciled paper).”

The “original act” referred to in the above Comment to § 3.501 was the “Negotiable Instruments Act,” and the specific provision dealing with presentment to the maker was in § 70 of Article 5937, Texas Revised Civil Statutes (Tex.Laws 1919, ch. 123, § 70, at 198), which provided:

“Presentment for payment is not necessary in order to charge the person primarily liable on the instrument; but if the instrument is, by its terms, payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. Except as herein otherwise provided, presentment for payment is necessary in order to charge the drawer and indorsers.”

Neither the above Comment 4 nor the above cited statutes refer directly to accelerations. While Article 5937 was in force, however, this Court recognized the following rule as applicable to optional accelerations in Faulk v. Futch, 147 Tex. 253, 257, 214 S.W.2d 614, 616 (1948):

“Furthermore, the rule is well established that, ‘Where the acceleration clause in a promissory note leaves it optional with the holder whether he shall declare the whole amount due upon failure to pay any installment of principal or interest, such holder cannot without presentment for payment, exercise this option to declare the whole amount due . .” [Emphasis added.]

This rule, peculiar to accélerations, was part of our jurisprudence prior to the adoption of the Negotiable Instruments Act, during the existence of that Act, and, unless it has been displaced by the Texas Business and Commerce Code, it will remain a part of our jurisprudence. Faulk v. Futch, supra; Brown v. Hewitt, 143 S.W.2d 223 (Tex.Civ.App.1940, writ ref’d); Curtis v. Speck, 130 S.W.2d 348 (Tex.Civ.App.1939, writ ref’d); Luczynski v. Sevier, 302 S.W.2d 474 (Tex.Civ.App.1957, writ ref’d n. r. e.); Griffith v. Griffith, 252 S.W.2d 517 (Tex.Civ.App.1952, writ ref’d n. r. e.); Bischoff v. Rearick, 232 S.W.2d 174 (Tex.Civ.App.1950, writ ref’d n. r. e.); Parker v. Mazur, 13 S.W .2d 174 (Tex.Civ.App.1929, writ dism’d); Credit Exchange of Dallas, Inc. v. Bell, 427 S.W.2d 674 (Tex.Civ.App.1968, no writ); Reynolds v. Skinner, 394 S.W.2d 201 (Tex.Civ.App.1965, no writ); Dickson v. Dickson, 324 S.W.2d 422 (Tex.Civ.App.1959, no writ); Jernigan v. O’Brien, 303 S.W.2d 515 (Tex.Civ.App.1957, no writ); Griffin v. Reilly, 275 S.W. 242 (Tex.Civ.App.1925, no writ); Beckham v. Scott, 142 S.W. 80 (Tex.Civ.App.1911, no writ). See also 10 C.J.S. Bills and Notes § 251, p. 751 (1938); 11 Am.Jur.2d Bills and Notes § 742, p. 824 (1963); 5 A.L.R.2d 968, § 6 (1949). Any language to the contrary in Business Aircraft Corp. v. Electronic Communications, Inc., 391 S.W .2d 70 (Tex.Civ.App.1965, writ ref’d n. r. e.); Carroll v. Sartain, 164 S.W.2d 52 (Tex.Civ.App.1942, writ ref’d w. o. m.); and Kyle v. Commercial Credit Co., 152 S.W.2d 465 (Tex.Civ.App.1941, writ dism’d jdgmt. cor.) is disapproved.

The question is whether the legislature, by enacting § 3.501 of the Texas Business and Commerce Code, abolished this rule which has become so entrenched in our court decisions. We are given some guidance in this respect by § 1.103 of the Code:

“Unless displaced by the particular provisions of this title, the principles of law and equity . . . shall supplement its provisions.”

The Ryans contend that the absence of a requirement in § 3.501 of the Code that demand be made upon the maker prior to the exercise of an optional acceleration clause evinces a legislative intent that no demand is required. We disagree.

As heretofore indicated, the rule requiring demand for payment of the past due installment prior to the exercise of an optional acceleration clause was a part of our common law prior to the passage of the Negotiable Instruments Act in 1919. Thereafter, for almost half a century, § 70 of that Act was in force with this common law rule as to accelerations engrafted upon it. We are entitled to assume that the legislature, through its inaction, indicated its approval. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex.1968); Moss v. Gibbs, 370 S.W.2d 452, 458-59 (Tex.1963). The equities which gave rise to the origin of the rule are present with as much force today as they were when the rule was spawned. The accelerated maturity of a note, which is initially contemplated to extend over a period of months or years, is an extremely harsh remedy. Equity demands notice of the exercise of the option to accelerate. Brown v. Hewitt, supra. Until the legislature clearly evinces an intent that this rule be abolished, we will continue to apply it and require that the holder of an installment note make a demand to the maker for payment of an overdue installment prior to exercising an optional acceleration clause. New or revised statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and subject thereto unless the contrary is clearly indicated. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 815 (1947); Hart v. Winsett, 141 Tex. 312, 171 S.W.2d 853, 855 (1943); McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1942).

This demand for payment of the overdue installment need not be made on the date the installment is due; the only requirement, as to the time for making the demand, is that the demand for payment of the overdue installment be made prior to exercising the option to accelerate. See Griffith v. Griffith, 252 S.W.2d 517 (Tex.Civ.App.1952, writ ref’d n. r. e.); Beckham v. Scott, 142 S.W. 80 (Tex.Civ.App.1911, no writ). Our holding in this case should not be interpreted as requiring that demand be made prior to acceleration under all circumstances. The holder is only required to use reasonable diligence in attempting to locate the maker and demand payment of the overdue installment. For instance, it has been held that the payor may waive his right of demand or presentment by leaving his place of business and making it impossible for the payee to locate him after a reasonably diligent search. See Holt v. Henrichson, 321 S.W.2d 146, 148 (Tex.Civ.App.1959, writ ref’d n. r. e.). Also, where repeated demands for payment of past due installments have been fruitless, further formal presentments may be excused under certain circumstances. See Faulk v. Futch, supra, and discussion of that case in Graham & Locke Investments v. Madison, 295 S.W.2d 234 (Tex.Civ.App.1956, writ ref’d n. r. e.).

Respondents, as holders of the note, are entitled only to a judgment for the past due installments together with accumulated interest as provided in the note. Because payments have been made into the registry of the court during the pendency of this case, some of which will affect the total computation of interest, it is better that the trial court make the final computations and provide for disbursements in accordance with this opinion. Therefore the judgments of the lower courts are reversed and the cause is remanded to the trial court for the rendition and entry of a judgment consistent with this opinion. The costs of this appeal are adjudged against respondents.

      . Tex.Bus. & Comm.Code Arm. § 3.102 (1968) provides:
      “(a) In this chapter unless the context otherwise requires

      “(4) ‘Secondary party’ means a drawer or endorser.”

      . Tex.Bus. & Comm.Code Ann. § 3.504 (1968) defines “presentment”:
      “(a) Presentment is a demand for acceptance or payment made upon the maker, acceptor, drawee or other payor by or on behalf of the holder.”