author: PEDEN, Justice.

text:
    Bert L. CLARDY, Appellant, v. DRESSER INDUSTRIES, INC., Appellee.
    No. 16956.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 22, 1977.

      J. Donald Bowen, Helm, Pletcher, Hogan & Burrow, Houston, for appellant.
    Butler, Binion, Rice, Cook & Knapp, Donald B. McFall, Houston, for appellee.
   PEDEN, Justice.

Mr. Bert L. Clardy, plaintiff in the trial court, appeals from a judgment based on a jury’s failure to find that he sustained any compensable injuries from an automobile collision. The trial judge found the defendant, Dresser Industries, liable as a matter of law, and the parties stipulated “to past medical ... in the amount of $390.” Mr. Clardy asserts that the trial court erred in rendering judgment on the jury finding of no other compensable damages because that finding is against the great weight and preponderance of the evidence and because all of the evidence conclusively .proves that he suffered a compensable injury. We affirm.

On October 5, 1973, Mr. Clardy was struck from the rear by a car driven by an employee of Dresser Industries. Clardy dismissed the employee from the action and he did not testify. The trial judge submitted only this damage issue to the jury:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Bert L. Clardy for his injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?
You shall consider the following elements of damage, if any, and none other:
a. Physical pain and mental anguish in the past.
b. Physical pain and mental anguish which, in reasonable probability, he will suffer in the future.
c. Loss of earning capacity which, in reasonable probability, he will sustain in the future.
Answer in dollars and cents, if any.
You are instructed that in answering the preceding Special Issues, you may only take into consideration such damage, if any, that directly and proximately results from the injuries, if any, made the basis of this suit, such diseases, if any, as naturally and proximately resulted from such injuries, if any, and proximately caused by the injuries, if any, suffered by him as a direct result of the occurrence made the basis of this suit.”
The jury answered: “0 (none)”

We first consider the point of error asserting that all the evidence conclusively proves that he suffered a compensable injury. This is a no evidence point, so if there is any evidence of probative force to support the jury finding, such evidence is binding upon the reviewing court. We look only to the evidence favorable to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

Mr. Clardy testified that he could not say how far his car was pushed by the impact, but said “All I know I got out and I could drive my car out and I had a slight scrape.” He ascribed to the accident his migraine headaches and pain that extends from his right shoulder to his right eye. He also complained of dullness from his many medications. A number of inconsistencies in Mr. Clardy’s testimony were demonstrated; no useful purpose would be served in recounting them. He had previously been involved in automobile accidents in 1960, 1967, 1971, and the spring of 1973.

Much of the record consists of testimony concerning Mr. Clardy’s medical problems. He has had migraine headaches since the age of 5, stomach problems, diabetes and arthritis. Dr. Harvey Kornblit, a neurologist, testified that Mr. Clardy told him he had been suffering from neck problems since his 1960 auto accident and had had problems with an “arthritic neck” since at least 1964. Aside from the testimony of the plaintiff, the only evidence that he was injured in the accident in question was the testimony of Dr. Kornblit. He stated that he first saw the plaintiff ten days after the accident and that his only objective findings were those based on x-rays taken seventeen months after the accident. They showed marked arthritic changes in the plaintiff’s neck and straightening of the mid-cervical lordotic curve, a symptom usually associated with muscle spasm. His opinion that these symptoms were caused by the accident in question was based, in large part, on what the plaintiff had told him.

Dr. Martin Fischer, Clardy’s physician prior to this accident, stated in answers to interrogatories that Mr. Clardy suffered from severe headaches and shoulder pains in 1972 and that x-rays of his cervical spine showed degenerative disc disease which might cause pain on shoulder movement. Dr. Fischer also stated that the severity of appellant’s complaints may be due to emotional factors.

It is clear that the appellant did not conclusively prove that he suffered a compensable injury. The testimony of an interested witness does nothing more than raise fact issues unless it is clear, direct and positive, and is free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). Mr. Clardy’s testimony did not fall within that exception. We also hold that the jury was not required to accept Dr. Kornblit’s conclusion as to the causal connection between the accident and the condition he found in the plaintiff’s x-rays taken 17 months later. Opinion testimony, even though not contradicted by an opposing expert, must be deemed true only under highly exceptional circumstances. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 189 (1958). Here the doctor’s opinion was based, in large part, on what the plaintiff had told him.

Appellant’s first two points of error purport to contest the factual sufficiency of the evidence to support the jury finding, but they fail to do so. They are:

ONE
THE TRIAL COURT ERRED IN RENDERING JUDGMENT FOR APPELLEE ON THE JURY FINDING THAT APPELLANT RECEIVED NO COMPEN-SABLE DAMAGE, AS SUCH FINDING IS AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE.
TWO
THE TRIAL COURT ERRED IN RENDERING JUDGMENT FOR APPELLEE ON THE JURY FINDING THAT APPELLANT RECEIVED NO COMPEN-SABLE DAMAGE, AS THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT SUCH FINDING.

Points of error asserting that the court erred in rendering judgment on a verdict because of the state of the evidence raise only a no evidence point. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). We have already ruled on the appellant’s third point of error, his no evidence point. A review of all the evidence has also convinced us that the jury’s answer was not contrary to the great weight of the evidence.

Affirmed.


source: Caselaw Access Project

author: BROCK, Justice. HARBISON, Justice,

license: Public Domain

text:
    Wanda Faye Chapman CHASTAIN, Petitioner, v. Harold Lamar CHASTAIN, Respondent.
    Supreme Court of Tennessee.
    Dec. 12, 1977.
    Arthur Bass, Southeast Tennessee Legal Services, Chattanooga, for petitioner.
    Carl W. Eshbaugh, Knoxville, for respondent.
   OPINION

BROCK, Justice.

The plaintiff brought this action for divorce alleging that the defendant had abandoned her, or turned her out of doors, and refused or neglected to provide for her, a ground for divorce specified by T.C.A., § 36-802(3). The defendant failed to interpose any defense and a default judgment was accordingly taken against him. Thereafter, the case came on for hearing before the circuit judge and the testimony of the plaintiff established the allegations of her complaint. The proceedings from that point on are described in the narrative bill of exceptions as follows:

“As the plaintiff was leaving the witness box and her corroborating witness was coming forward to testify, the court, making reference to an infant which the plaintiff had with her in the courtroom, asked the plaintiff to whom the child belonged. The plaintiff said the child was hers.
“The court then asked the plaintiff why, if she had a child, she had testified that no children were born to the marriage. The plaintiff replied that there were no children born to the marriage. The court then asked who the father of the child was, whereupon, the plaintiff explained that the father was a third party whom she had started seeing after separating from her husband.
“At this point the court announced that it was the intention of the court to dismiss the plaintiff’s case in light of her adultery. Mr. Bass excepted.”

The corroborating witness was never permitted to testify. In the final decree which was entered, the court gave as its reason for dismissing the complaint:

“The court was of the opinion that the plaintiff’s action should be dismissed, as the court could not put its stamp of approval upon the plaintiff’s admitted adultery.”

The plaintiff appealed to the Court of Appeals which affirmed the dismissal. This Court granted certiorari.

I

Although this case presents several issues worthy of discussion, we pretermit all except the contention that the adultery of the plaintiff, in the particular circumstances shown in this case, does not constitute grounds for dismissing her complaint.

Although some of our cases contain language to the effect that divorce cases are to be “tried as equity cases” or “according to the forms of chancery,” the substantive law governing divorce in Tennessee is purely statutory; there is no common law of divorce. Both grounds for divorce and defenses against divorce actions are statutory. See Perrin v. Perrin, 201 Tenn. 354, 299 S.W.2d 19 (1957); Mount v. Mount, 46 Tenn.App. 30, 326 S.W.2d 493 (1959).

An examination of the pertinent statutes indicates that recrimination is allowed as a defense only to a complaint for divorce based upon the ground of defendant’s adultery. Thus, T.C.A., § 36-811, provides:

“If the cause assigned for the divorce be adultery, it shall be a good defense and perpetual bar to the same if the defendant allege and prove:
(1) That the complainant has been guilty of like act or crime.”

However, the reported cases indicate that our courts have sometimes mistakenly treated the defense defined in T.C.A., § 36-818, as one of recrimination. See Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968). That Section provides:

“If the cause assigned for a divorce be any of those specified in § 36-802, the defendant may make defense by alleging and proving the ill conduct of the complainant as a justifiable cause for the conduct complained of. and on making out the defense to the satisfaction of the court, the bill may be dismissed with or without costs, in the discretion of the court.” (Underscoring added.)

The “causes for divorce” specified in T.C.A., § 36-802, to which the defense authorized by T.C.A., § 36-818, may be interposed, are:

“(1) That the husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper.
“(2) That the husband has offered such indignities to the wife’s person as to render her condition intolerable, and thereby forced her to withdraw.
“(3) That he has abandoned her, or turned her out of doors, and refused or neglected to provide for her.”

Therefore, it is our opinion that in a case such as this in which the ground for divorce is one of the “causes of divorce” specified by T.C.A., § 36-802, the “ill conduct” of the complainant may constitute a defense to the complaint only if such “ill conduct” is shown to be “a justifiable cause for the conduct complained of.” For instance, the defendant may neutralize his abandonment and failure to support his wife by showing that such misconduct on his part was brought about by her ill conduct toward him. See McClanahan v. McClanahan, 104 Tenn. 217, 56 S.W. 858 (1900).

Applying this rule to the facts of the instant case, it is obvious that the adultery of the plaintiff committed after the defendant husband had abandoned her and turned her out of doors and refused or neglected to provide for her could not have been “a justifiable cause” for the alleged abandonment on the part of the defendant. Therefore, in the circumstances of this particular case, plaintiff’s adultery does not disentitle her to a divorce. This Court recently denied certiorari in a case in which the Court of Appeals had reached the same conclusion in an unreported opinion of that court.

II

It has been suggested that although the adultery of the plaintiff under the facts of this case did not constitute a defense under T.C.A., § 36-818, and could not be asserted as recrimination under T.C.A., § 36-811, because the ground for divorce alleged by the plaintiff was not adultery, nevertheless, her act should repel her because of the equitable doctrine of unclean hands. We cannot agree; unclean hands is not listed as a statutory defense to an action for divorce and the more recent and better reasoned cases hold that, except for fraud and deceit upon the court, which are always available as defenses in any court, the clean hands principle does not apply in divorce litigation. Bales v. Bales, 33 Ohio Misc. 221, 294 N.E.2d 252 (1971); Ryan v. Ryan, Fla., 277 So.2d 266 (1973); De La Portilla v. De La Portilla, Fla.App., 287 So.2d 345 (1973).

A full scale application of the doctrine of unclean hands to divorce litigation would amount to an unwarranted extension by the courts of the doctrine of recrimination to all actions and grounds for divorce, whereas, the legislature has limited the defense of recrimination to actions for divorce which are based upon the adultery of the defendant. T.C.A., § 36-811.

There is respectable authority for not extending the recrimination defense in this manner. Burch v. Burch, 195 F.2d 799 (3d Cir. 1952). In the Burch case, it was held that since the legislature had enacted that the plaintiff’s adultery should be a bar to divorce on the ground of defendant’s adultery, as does our statute, T.C.A., § 36-811, recrimination was a bar in this instance but not in any other. We agree.

There are also good policy reasons for not extending the defense of recrimination. These reasons are well stated in 24 Am. Jur.2d Divorce and Separation § 226 (1966) as follows:

“However, the view that recrimination is an absolute [dejfense, to be applied without discretion, has frequently been condemned. When both parties have committed material offenses it is generally obvious that the marriage is beyond salvage; yet the rule that recrimination is an absolute defense leaves the parties legally bound to each other. This situation produces many evils: it promotes adulterous relationships; it increases the danger of giving birth to illegitimate children; it encourages collusive and uncontested divorces; it exerts a corrupting influence on the negotiations that precede a default divorce case, including the exaction of an unfair property settlement or alimony arrangement; and in community property states it leaves the management of the community property in the hands of the husband.”

This very case is good evidence of the validity of some of these reasons.

Ill

It has further been suggested that the plaintiff in this action may not have been a resident of Tennessee and, therefore the trial court may have been without jurisdiction of the parties. However, the plaintiff in her sworn complaint and in her testimony before the trial judge, stated that she was a bona fide resident of the state of Tennessee and had been so for the required statutory period of time, although for a few days immediately prior to the date for the divorce hearing she had been visiting friends in north Georgia while maintaining her Tennessee domicile. Moreover, the trial court did not base its dismissal of the complaint upon any lack of residence on the part of the plaintiff but, on the contrary, stated in the final decree that “further, there was a jurisdictional question of residency, although the court was inclined to resolve this issue in the plaintiffs favor.” Therefore, we find nothing in the record upon which to question the jurisdiction of the court to entertain this action.

For the reasons stated, we reverse the decrees of the Court of Appeals and of the trial court and remand this cause to the trial court for a new trial. Costs are adjudged against the defendant, Harold Lamar Chastain.

FONES and HENRY, JJ., concur.

HARBISON, J., dissents.

COOPER, C. J., joins in dissent.

HARBISON, Justice,

dissenting.

I respectfully dissent. In my opinion a trial judge, even in the hearing of an uncontested divorce case, has discretion to dismiss the action when the proof shows that the complaining party admittedly has been guilty of adultery.

I am not in agreement with the majority opinion to the effect that the substantive law governing divorce is wholly statutory, and there are no principles of equity involved.

In the old case of Cameron v. Cameron, 42 Tenn. 375 (1865), the Court approved the dismissal of an uncontested divorce action brought by a husband against his wife on charges of adultery. In that case the guilt of the wife was clearly established, but the action was dismissed because the proof failed “to show anything in relation to the complainant’s character for virtue and chastity since the separation.”

While the rules of pleading and practice have undergone many changes since the decision in that case, the following statement of equitable principles, in my opinion, has not changed:

“. . . the principles of the law, justifying the dissolution of the bonds of matrimony, require the party making the application, to come into court with clean hands." 42 Tenn. at 377. (Emphasis supplied.)

The defense of condonation is statutory in Tennessee only in adultery cases, T.C.A. § 36-811. It had its origin, however, in canon law and is applied in this state, apart from statute, to other charges, such as cruelty. See 24 Am.Jur.2d, Divorce and Separation § 202; Schwalb v. Schwalb, 39 Tenn.App. 306, 331, 282 S.W.2d 661 (1955).

The defense of insanity is nowhere found in our divorce code, but it is well settled that persons who are non compos are not held responsible for their actions so as to entitle their spouses to divorce for conduct committed during periods of mental incapacity. See Quinn v. Quinn, 169 Tenn. 173, 83 S.W.2d 269 (1935); Knight v. Knight, 62 Tenn.App. 70, 75-76, 458 S.W.2d 803 (1970).

Accordingly, in my view it is too restrictive to state that the entire subject of divorce is statutory and that no principles outside the statutes have application.

I do not disagree with the analysis of the specific statutes contained in the majority opinion, but I believe that the principle of recrimination, which itself is based upon that of unclean hands, has been extended by our cases beyond the literal wording of these statutes.

In the case of Berry v. Berry, 191 Tenn. 310, 232 S.W.2d 352 (1950), this Court affirmed the dismissal of actions brought both by the wife and by the husband, where each had established separate and independent grounds for divorce. The testimony showed that the wife had either been guilty of adultery or, at a minimum, that the husband’s charges thereof were not frivolous and insubstantial. On the other hand the testimony showed that the husband had also been guilty of cruel and inhuman treatment. The Court upheld the action of the trial court in dismissing both actions. Similarly, in the case of Brewies v. Brewies, 27 Tenn.App. 68, 178 S.W.2d 84 (1943), the Court of Appeals reversed a judgment of the trial court in which a divorce had been awarded to each of the parties. In that case the Court followed what it considered to be the general rule, to the effect that where both parties have been guilty of statutory grounds for divorce, then neither is entitled to relief. This holding was discussed and the entire subject fully treated in the case of Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968). There adultery of the husband was held to defeat his claim for divorce because of his wife’s cruelty.

While it may be that the majority opinion leaves a trial judge some discretion as to whether he will or will not disallow a divorce when the complaining party has been shown to be guilty of statutory grounds, it nevertheless reverses his exercise of that discretion in the present case, and I cannot agree to that decision. I can hardly think of a more indiscreet or bizarre disregard for the divorce court than for a woman to come to that court and seek to dissolve her marriage, bringing with her a child which she had conceived as a result of an illicit relationship with another man. If a divorce court does not have discretion to dismiss an action upon that sort of showing, then indeed I believe that it has almost no discretion and that the judge must grant a divorce to whichever of two guilty parties first files an action or appears before him.

The General Assembly of this state has recently adopted a limited “no-fault” statute under which a party may receive a divorce when it is uncontested that irreconcilable differences have occurred, and where the parties have agreed upon a disposition of their property or custody of their children. Most of the older grounds for divorce contained in the Tennessee statutes, however, are based upon a fault principle, wisely or unwisely. Whether the principle of recrimination is or is not socially desirable or practically sound, it is, in my opinion, deeply embedded in the jurisprudence of this state and rests upon equitable, and not purely statutory, foundations.

In the same general encyclopedia quoted in the majority opinion are found references to the views of the various states on the subject of recrimination. In some states, both parties to a divorce may be granted relief when there is a showing that each has committed statutory grounds. This alternative has been expressly rejected in Tennessee and, in my opinion, properly so. Other states have adopted the principle of “comparative rectitude” under which the trial judge weighs the relative fault of the parties and compares the morality of the different statutory grounds of divorce, allowing relief to the least guilty party, or the one deemed to have committed the less socially desirable acts. This principle, also, has been rejected in this state, as in the majority of states, and involves the court in moral and ethical considerations of statutory grounds which have been authorized by the legislature.

There is no ready or facile solution to the matter of mutual fault in divorce cases, absent the adoption of a general no-fault principle. While it may be well to leave the matter to the discretion of the trial judge, I think that such discretion was properly exercised in the present case and I would affirm the judgments of the courts below.

I am authorized to state that Mr. Chief Justice COOPER joins in this opinion.

      . Other equitable principles, such as laches, are applied to divorce actions in many states. See Clark, Domestic Relations 371-372 (1969); Annot. 4 A.L.R.2d 1321 (1949).

      . As to circumstances under which a person adjudged insane may still be able to obtain a valid divorce, see Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955), cert. denied, 350 U.S. 842, 76 S.Ct. 83, 100 L.Ed. 751 (1955).

      . Tenn.Pub. Acts 1977, ch. 107.

      . 24 Am.Jur.2d, Divorce and Separation §§ 226 et seq.


text:
    Evelyn WHITE and Sandra White Perry, Petitioners, v. Helen BROWN et al., Respondents.
    Supreme Court of Tennessee.
    Dec. 27, 1977.
    Ted H. Lowe, Knoxville, for petitioners.
    Wallace F. Burroughs, Charles H. Child, Knoxville, E. T. Hollins, Jr., Nashville, for respondents.
   OPINION

BROCK, Justice.

This is a suit for the construction of a will. The Chancellor held that the will passed a life estate, but not the remainder, in certain realty, leaving the remainder to pass by inheritance to the testatrix’s heirs at law. The Court of Appeals affirmed.

Mrs. Jessie Lide died on February 15, 1973, leaving a holographic will which, in its entirety, reads as follows:

“April 19, 1972
“I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate. I wish Evelyn White to have my home to live in and not to be sold.
“I also leave my personal property to Sandra White Perry. My house is not to be sold.
Jessie Lide”
(Underscoring by testatrix).

Mrs. Lide was a widow and had no children. Although she had nine brothers and sisters, only two sisters residing in Ohio survived her. These two sisters quitclaimed any interest they might have in the residence to Mrs. White. The nieces and nephews of the testatrix, her heirs at law, are defendants in this action.

Mrs. White, her husband, who was the testatrix’s brother, and her daughter, Sandra White Perry, lived with Mrs. Lide as a family for some twenty-five years. After Sandra married in 1969 and Mrs. White’s husband died in 1971, Evelyn White continued to live with Mrs. Lide until Mrs. Lide’s death in 1973 at age 88.

Mrs. White, joined by her daughter as executrix, filed this action to obtain construction of the will, alleging that she is vested with a fee simple title to the home. The defendants contend that the will conveyed only a life estate to Mrs. White, leaving the remainder to go to them under our laws of intestate succession. The Chancellor held that the will unambiguously conveyed only a life interest in the home to Mrs. White and refused to consider extrinsic evidence concerning Mrs. Lide’s relationship with her surviving relatives. Due to the debilitated condition of the property and in accordance with the desire of all parties, the Chancellor ordered the property sold with the proceeds distributed in designated shares among the beneficiaries.

I.

Our cases have repeatedly acknowledged that the intention of the testator is to be ascertained from the language of the entire instrument when read in the light of surrounding circumstances. See, e.g., Harris v. Bittikofer, 541 S.W.2d 372, 384 (Tenn.1976); Martin v. Taylor, 521 S.W.2d 581, 584 (Tenn.1975); Hoggatt v. Clopton, 142 Tenn. 184, 192, 217 S.W. 657, 659 (1919). But, the practical difficulty in this case, as in so many other cases involving wills drafted by lay persons, is that the words chosen by the testatrix are not specific enough to clearly state her intent. Thus, in our opinion, it is not clear whether Mrs. Lide intended to convey a life estate in the home to Mrs. White, leaving the remainder interest to descend by operation of law, or a fee interest with a restraint on alienation. Moreover, the will might even be read as conveying a fee interest subject to a condition subsequent (Mrs. White’s failure to live in the home).

In such ambiguous cases it is obvious that rules of construction, always yielding to the cardinal rule of the testator’s intent, must be employed as auxiliary aids in the courts’ endeavor to ascertain the testator’s intent.

In 1851 our General Assembly enacted two such statutes of construction, thereby creating a statutory presumption against partial intestacy.

Chapter 33 of the Public Acts of 1851 (now codified as T.C.A. §§ 6L-101 and 64r-501) reversed the common law presumption that a life estate was intended unless the intent to pass a fee simple was clearly expressed in the instrument. T.C.A. § 64— 501 provides:

“Every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devi-sor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of the instrument.”

Chapter 180, Section 2 of the Public Acts of 1851 (now codified as T.C.A. § 32-301) was specifically directed to the operation of a devise. In relevant part, T.C.A. § 32-301 provides:

“A will . . . shall convey all the real estate belonging to [the testator] or in which he had any interest at his decease, unless a contrary intention appear by its words and context.”

Thus, under our law, unless the “words and context” of Mrs. Lide’s will clearly evidence her intention to convey only a life estate to Mrs. White, the will should be construed as passing the home to Mrs. White in fee. “ ‘If the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the absolute estate.’ ” Meacham v. Graham, 98 Tenn. 190, 206, 39 S.W. 12, 15 (1897) (quoting Washbon v. Cope, 144 N.Y. 287, 39 N.E. 388); Weiss v. Broadway Nat’l Bank, 204 Tenn. 563, 322 S.W.2d 427 (1959); Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35 (1945).

Several of our cases demonstrate the effect of these statutory presumptions against intestacy by construing language which might seem to convey an estate for life, without provision for a gift over after the termination of such life estate, as passing a fee simple instead. In Green v. Young, 163 Tenn. 16, 40 S.W.2d 793 (1931), the testatrix’s disposition of all of her property to her husband “to be used by him for his support and comfort during his life” was held to pass a fee estate. Similarly, in Williams v. Williams, 167 Tenn. 26, 65 S.W .2d 561 (1933), the testator’s devise of real property to his children “for and during their natural lives” without provision for a gift over was held to convey a fee. And, in Webb v. Webb, 53 Tenn.App. 609, 385 S.W.2d 295 (1964), a devise of personal property to the testator’s wife “for her maintenance, support and comfort, for the full period of her natural life” with complete powers of alienation but without provision for the remainder passed absolute title to the widow.

II.

Thus, if the sole question for our determination were whether the will’s conveyance of the home to Mrs. White “to live in” gave her a life interest or a fee in the home, a conclusion favoring the absolute estate would be clearly required. The question, however, is complicated somewhat by the caveat contained in the will that the home is “not to be sold” — a restriction conflicting with the free alienation of property, one of the most significant incidents of fee ownership. We must determine, therefore, whether Mrs. Lide’s will, when taken as a whole, clearly evidences her intent to convey only a life estate in her home to Mrs. White.

Under ordinary circumstances a person makes a will to dispose of his or her entire estate. If, therefore, a will is susceptible of two constructions, by one of which the testator disposes of the whole of his estate and by the other of which he disposes of only a part of his estate, dying intestate as to the remainder, this Court has always preferred that construction which disposes of the whole of the testator’s estate if that construction is reasonable and consistent with the general scope and provisions of the will. See Ledbetter v. Ledbetter, 188 Tenn. 44, 216 S.W.2d 718 (1949); Cannon v. Cannon, supra; Williams v. Williams, supra; Jarnagin v. Conway, 21 Tenn. 50 (1840); 4 Page, Wills § 30.14 (3d ed. 1961). A construction which results in partial intestacy will not be adopted unless such intention clearly appears. Bedford v. Bedford, 38 Tenn.App. 370, 274 S.W.2d 528 (1954); Martin v. Hale, 167 Tenn. 438, 71 S.W.2d 211 (1934). It has been said that the courts will prefer any reasonable construction or any construction which does not do violence to a testator’s language, to a construction which results in partial intestacy. Ledbetter, supra.

The intent to create a fee simple or other absolute interest and, at the same time to impose a restraint upon its alienation can be clearly expressed. If the testator specifically declares that he devises land to A “in fee simple” or to A “and his heirs” but that A shall not have the power to alienate the land, there is but one tenable construction, viz., the testator’s intent is to impose a restraint upon a fee simple. To construe such language to create a life estate would conflict with the express specification of a fee simple as well as with the presumption of intent to make a complete testamentary disposition of all of a testator’s property. By extension, as noted by Professor Casner in his treatise on the law of real property:

“Since it is now generally presumed that a conveyor intends to transfer his whole interest in the property, it may be reasonable to adopt the same construction, [conveyance of a fee simple] even in the absence of words of inheritance, if there is no language that can be construed to create a remainder.” 6 American Law of Property § 26.58 (A. J. Casner ed. 1952).

In our opinion, testatrix’s apparent testamentary restraint on the alienation of the home devised to Mrs. White does not evidence such a clear intent to pass only a life estate as is sufficient to overcome the law’s strong presumption that a fee simple interest was conveyed.

Accordingly, we conclude that Mrs. Lide’s will passed a fee simple absolute in the home to Mrs. White. Her attempted restraint on alienation must be declared void as inconsistent with the incidents and nature of the estate devised and contrary to public policy. Nashville C & S.L. Ry. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026 (1931).

The decrees of the Court of Appeals and the trial court are reversed and the cause is remanded to the chancery court for such further proceedings as may be necessary, consistent with this opinion. Costs are taxed against appellees.

COOPER and FONES, JJ., concur.

HARBISON, J., dissents.

HENRY, C. J., joins in dissent.

HARBISON, Justice,

dissenting.

With deference to the views of the majority, and recognizing the principles of law contained in the majority opinion, I am unable to agree that the language of the will of Mrs. Lide did or was intended to convey a fee simple interest in her residence to her sister-in-law, Mrs. Evelyn White.

The testatrix expressed the wish that Mrs. White was “to have my home to live in and not to be sold ”. The emphasis is that of the testatrix, and her desire that Mrs. White was not to have an unlimited estate in the property was reiterated in the last sentence of the will, to wit: “My house is not to be sold.”

The testatrix appointed her niece, Mrs. Perry, executrix and made an outright bequest to her of all personal property.

The will does not seem to me to be particularly ambiguous, and like the Chancellor and the Court of Appeals, I am of the opinion that the testatrix gave Mrs. White a life estate only, and that upon the death of Mrs. White the remainder will pass to the heirs at law of the testatrix.

The cases cited by petitioners in support of their contention that a fee simple was conveyed are not persuasive, in my opinion. Possibly the strongest case cited by the appellants is Green v. Young, 163 Tenn. 16, 40 S.W.2d 793 (1931), in which the testatrix bequeathed all of her real and personal property to her husband “to be used by him for his support and comfort during his life.” The will expressly stated that it included all of the property, real and personal, which the testatrix owned at the time of her death. There was no limitation whatever upon the power of the husband to use, consume, or dispose of the property, and the Court concluded that a fee simple was intended.

In the case of Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561 (1933), a father devised property to his children “for and during their natural lives” but the will contained other provisions not mentioned in the majority opinion which seem to me to distinguish the case. Unlike the provisions of the present will, other clauses in the Williams will contained provisions that these same children were to have “all the residue of my estate personal or mixed of which I shall die possessed or seized, or to which I shall be entitled at the time of my decease, to have and to hold the same to them and their executors and administrators and assigns forever.”

Further, following some specific gifts to grandchildren, there was another bequest of the remainder of the testator’s money to these same three children. The language used by the testator in that case was held to convey the fee simple interest in real estate to the children, but its provisions hardly seem analogous to the language employed by the testatrix in the instant case.

In the case of Webb v. Webb, 53 Tenn.App. 609, 385 S.W.2d 295 (1964), the testator gave his wife all the residue of his property with a clear, unqualified and unrestricted power of use, sale or disposition. Thereafter he attempted to limit her interest to a life estate, with a gift over to his heirs of any unconsumed property. Again, under settled rules of construction and interpretation, the wife was found to have a fee simple estate, but, unlike the present case, there was no limitation whatever upon the power of use or disposition of the property by the beneficiary.

On the other hand, in the case of Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562 (1933), a gift of the residue of the large estate of the testator to his daughter, with power “at her demise [to] dispose of it as she pleases . . . .” was held to create only a life estate with a power of appointment, and not an absolute gift of the residue. In other portions of the will the testator had given another beneficiary a power to use and dispose of property, and the Court concluded that he appreciated the distinction between a life estate and an absolute estate, recognizing that a life tenant could not dispose of property and use the proceeds as she pleased. 167 Tenn. at 57, 65 S.W.2d at 569.

In the present case the testatrix knew how to make an outright gift, if desired. She left all of her personal property to her niece without restraint or limitation. As to her sister-in-law, however, she merely wished the latter have her house “to live in”, and expressly withheld from her any power of sale.

The majority opinion holds that the testatrix violated a rule of law by attempting to restrict the power of the donee to dispose of the real estate. Only by thus striking a portion of the will, and holding it inoperative, is the conclusion reached that an unlimited estate resulted.

In my opinion, this interpretation conflicts more greatly with the apparent intention of the testatrix than did the conclusion of the courts below, limiting the gift to Mrs. White to a life estate. I have serious doubt that the testatrix intended to create any illegal restraint on alienation or to violate any other rules of law. It seems to me that she rather emphatically intended to provide that her sister-in-law was not to be able to sell the house during the lifetime of the latter — a result which is both legal and consistent with the creation of a life estate.

In my opinion the judgment of the courts below was correct and I would affirm.

I am authorized to state that Chief Justice HENRY joins in this opinion.

      . Because the feudal lord granted land solely as compensation for personal services, the grant was for no longer than the life of the grantee. Later the grant was extended to the sons and other issue of the grantee under the designation of “heirs.” Heirs were thus entitled to stand in the place of their ancestor after his death if mentioned in the grant — but only if specifically mentioned. Thereafter, the word “heirs,” when used in a conveyance to a man “and his heirs,” came to include collateral as well as lineal heirs, ultimately indicating that such grantee took an estate which would pass to his heirs or the heirs of anyone to whom he aliened it. That is, “heirs” ceased to be a word of purchase and became a word of limitation. 1 Tiffany, Real Property § 28 (3d ed. 1939).


author: HENRY, Chief Justice.

text:
    H. H. LUTTRELL & ASSOCIATES et al., Appellants, v. BANK OF QUITMAN, Appellee.
    Supreme Court of Tennessee.
    Jan. 3, 1978.

      William Bond Ingram, Jr., Memphis, for appellants.
    Martin W. Brown, David C. Scruggs, Cobb, Edwards, Hamlet, Nichol & Woodall, Memphis, for appellee.
   OPINION

HENRY, Chief Justice.

The Court declines to accept this discretionary appeal upon the simple basis that the record is not in a posture for orderly appellate review. We remand to the Chancery Court at Memphis.

The attention of the Court and counsel is invited to Rule 8.01, Tenn.R.Civ.P., wherein it is directed that any claim seeking relief “shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief,” and to Rule 8.05, which directs that a pleading be “simple, concise and direct.” (Emphasis supplied). These provisions are but modern versions of the principle that a pleading must convey “a reasonable certainty of meaning” and “by a fair and natural construction [show] a substantial cause of action or defense.” Caruthers’ History of a Lawsuit. § 101 (7th ed. 1951). The pleadings filed in this record do not meet this basic test.

It is not the function of an appellate court to attempt to unravel pleadings in a vain effort to ascertain the precise issues in controversy. Nor is justice served by speculation as to the nature of the action.

We would suggest that on remand the Chancellor either direct that all pleadings be withdrawn and counsel be directed to plead anew or that he conduct a pre-trial conference pursuant to Rule 16, Tenn.R. Civ.P., and enter an appropriate order delineating the issues.

In the event of a subsequent appeal it would be helpful if the record were to show the precise manner in which a lawsuit filed “In the Circuit Court of Shelby County, Tennessee” reached the Chancery Docket and was processed through that court.

No further discretionary appeals will be presented in this suit unless and until the pleadings are placed in some semblance of order.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.


author: SHRIVER, Presiding Judge. TODD, Judge, partial

text:
    Helen KOEHLER, Petitioner-Appellee, v. Fred J. KOEHLER, Respondent-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    April 1, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      Brooks McLemore, Jr., Atty. Gen., State of Tenn., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Tenn., for petitioner-appellee.
    James C. Vance, Nashville, Tenn., for respondent-appellant.
   OPINION

SHRIVER, Presiding Judge.

The parties will be referred to as appellant and appellee or petitioner and respondent.

The record herein shows that respondent, Fred J. Koehler, filed a bill for divorce in the Superior Court of Arizona in and for the County of Maricopa, against petitioner, Helen Koehler, and was granted an absolute divorce from Helen Koehler in that Court on August 16,1965. In said decree of divorce the petitioner, Helen Koehler, was awarded the care, custody and control of the minor child of the parties, Jeffrey A. Koehler. A property settlement agreement, signed by the parties, was made a part of the decree wherein it was provided that Fred J. Koehler would pay the sum of $50.00 a month, on the first day of each month, through the Clerk of the Maricopa County Court for the support of the minor child of the parties, said payments to continue until the minor child becomes twenty-one years of age or is married or self-supporting.

Thereafter, on November 24th, 1975, petitioner, Helen Koehler, filed her petition in the Family Court of the State of New York, County of Onondaga, under the Uniform Support of Dependents Law, seeking to compel the respondent, Fred J. Koehler, to support his minor son, it being shown that the petitioner and her minor son were then bona fide residents of the County of Onondaga, New York, and that the respondent, Fred J. Koehler, was a non-resident of that State and County and then resided in Nashville, Davidson County, Tennessee.

On November 24, 1975, the Judge of the New York Family Court certified this cause to the Circuit Court of Davidson County, Tennessee, wherein it is asserted that a verified petition was filed in the New York Court against the named respondent under the provisions of the Uniform Support of Dependents Law to compel support of the dependent named in the petition and that satisfactory evidence was presented that the respondent was not in the jurisdiction of that Court but was a resident of Nashville, Tennessee; that a certified transcript of the testimony of the witnesses supporting the petition was attached to the certificate.

The petition proceeds:

“That the undersigned Judge of the Family Court of the State of New York, Onondaga County, has examined the allegations contained in the petition; that according to the testimony of the petitioner the needs of the dependent named in the petition for support from the respondent are the sum of $75.00 per month.
That in the opinion of the undersigned Judge, the respondent should be compelled to answer such petition and be dealt with according to law.”

It is further certified that petitioner, who resides in Onondaga County, New York, is thirty-seven years of age, is the wife of the respondent, Fred J. Koehler, the parties having been married on the 22nd day of October, 1960, in Syracuse, New York, and that the child, Jeffrey, was bom to this union on December 1st, 1962, the son of the respondent, and:

“Said child is dependent upon respondent for support; and is in need of and entitled to support from said respondent.
Respondent, on or about September, 1975, and subsequent thereto refused and neglected to provide fair and reasonable support for said dependent according to his means and earning capacity.
Said respondent is forty years of age, resides at Packard Drive, Nashville, Tennessee, and is employed by Honeywell Corporation.”

The testimony of the petitioner filed in the New York Court and certified to the Tennessee Court shows that the last contribution for support by the father was $75.00 in September, 1975, and prior to that a payment of $75.00 in March, 1975; that the son is living with the mother at her New York address and that she is a teacher receiving $2.73 an hour for an average of thirty-six and one-half hours a week which is her only source of income and that due to conditions in which they live, $75.00 a month is the minimum amount of support necessary to be contributed by the respondent who had an income of $15,000.00 to $18,000.00 a year.

Personal service was had on the respondent and after his answer was filed, the case came on for trial before the Honorable Benson Trimble, Judge, in the Fourth Circuit Court of Davidson County, Tennessee, upon the testimony of the respondent in open Court and upon the testimony of the petitioner by interrogatories and upon the arguments and briefs of counsel and resulted in a judgment ordering the respondent to pay $75.00 a month child support and $2,100.00 in arrearage.

From this decree the respondent has appealed and has assigned errors.

Following the filing of the petition herein, the Trial Court entered an order as follows:

“ORDER TO APPEAR AND SHOW CAUSE
In this cause a Petition or Complaint under the Uniform Reciprocal Enforcement of Support Act having been received and filed in this Court, and upon the Motion of Claudia C. Bonnyman, Assistant District Attorney, petitioner’s counsel herein;
IT IS HEREBY ORDERED that the defendant appear before me in the Fourth Circuit Court, Davidson County Courthouse, Nashville, Tennessee, at 9:00 A.M., on Wednesday, January 14th, 1976, or thereafter on the first Wednesday occurring at least three days after he shall have been served with a copy of this Order, and then and there to show cause, if any he has, why an Order should not forthwith be entered herein requiring the defendant to make payments in an amount to be fixed by the Court for the support of the defendant named in said Petition or Complaint, Pendente Lite.
IT IS FURTHER ORDERED that a copy of this Order be served on the defendant.
/s/ Benson Tribmle JUDGE
12-8-75”

It is to be noted that as exhibits to the petition there is filed a certified copy of the decree of the Family Court of the State of New York for the County of Onondaga, requiring respondent to pay $75.00 per month for the support of the minor child of the parties and certified copies of the proceedings in the Arizona Court wherein a divorce was granted and child support ordered. Also, a property settlement agreement is attached along with a copy of the Uniform Reciprocal Enforcement of Support Act of the State of New York.

Respondent filed a general denial by way of answer, along with interrogatories to be propounded to the petitioner, which interrogatories were answered by her under oath and her answers thereto were filed in the record.

Thereafter, on April 6, 1976, Judge Benson Trimble filed his Memorandum, finding in favor of the petitioner, both as to arrear-age of $2,100.00 and child support payments of $75.00 a month which was implemented by a decree, as follows:

“ORDER OF SUPPORT
This cause came on to be heard on the 10th day of March, 1976, before the Honorable Benson Trimble, Judge, upon the petition for child support filed by the petitioner, Mrs. Helen Koehler, the testimony of the respondent, Fred J. Koehler, the written interrogatories propounded to the petitioner by the attorney for the respondent, upon briefs submitted on behalf of the petitioner and the respondent, and upon the entire record in this cause, the Court is of the opinion and so finds that the position of the petitioner is well taken and that she is entitled to an increase in child support payments for $50.00 per month to $75.00 per month for the support of the dependent named in the petition, to-wit: minor child, Jeff Koehler.
The Court further finds that the respondent is in arrears in child support payments in the amount of $2,100.00, owing under a prior support order.
It is, therefore, ORDERED, ADJUDGED and DECREED that the respondent shall pay the sum of $75.00 (plus $3.75 as the Clerk’s lawful commission) per month for the support of his dependent to the Clerk of the Circuit Court, Room 506, Metropolitan Courthouse, Nashville, Tennessee 37201, beginning on April 16, 1976 and continuing until further orders of the Court; that the Clerk disburse said payments, in accordance with the terms of said Act, to: Onondaga County Probation Department, Support Bureau, Room 112, Court House, Syracuse, New York 13202, for disbursement to the Petitioner.
It is further ORDERED, ADJUDGED and DECREED that the petitioner be awarded a judgment for $2,100.00. the arrearage owing under a prior support order.
It is further ORDERED that the respondent notify the District Attorney General, Room 102, Metropolitan Courthouse, Nashville, Tennessee 37201, of any change in his residence or employment within thirty (30) days after such change. All other matters are reserved and this cause is retained in Court for further orders.
ENTER this 12 day of April, 1976.
/s/ Benson Trimble JUDGE”

Thereafter, respondent filed a motion entitled “Motion for Finding of Facts,” pursuant to Rule 52.01, Tennessee Rules of Civil Procedure, requesting that the Trial Judge enter a Finding of Facts and Conclusions of Law in this cause.

Following this, the Trial Judge requested counsel for each party to submit Findings of Facts, whereupon, after consideration of same, he entered a decree stating:

“. . . After review of the record as a whole and the findings of facts propounded by the petitioner and the respondent, the Court issued its Memorandum Opinion on May 21, 1976 adopting the findings of facts propounded by the solicitor representing the respondent.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the findings of facts presented by the solicitor for the respondent in the above styled cause shall be approved and hereby considered as the findings of facts of this Court.
The findings of facts presented by the solicitor for the respondent and adopted by this Court are as follows:”

and thereupon several pages of findings of facts were included in the decree.

Said findings, among other things, recites that on or about August 16, 1975, respondent, Fred J. Koehler, obtained an absolute divorce from petitioner, Helen Koehler, in the Superior Court of Arizona in and for the County of Maricopa; that a property settlement was entered into and made a part of the final decree, a part of which settlement is to the effect that the husband agreed to pay for the support and maintenance of the minor child of the parties the sum of $50.00 a month, payable on the first day of each month, to continue until the minor child becomes twenty-one years of age, or is married and self-supporting; that on or about March 1, 1975, respondent increased his child support payments from $50.00 a month to $75.00 a month; that petitioner filed a petition for support under the Uniform Reciprocal Enforcement of Support Act in New York; that respondent had been making child support payments of $75.00 a month since March 1, 1975 and: “This simply means that the alleged $2,100.00 arrearage should be decreased by the amount of increased child support that the respondent had been paying the petitioner, namely $325.00, though April, 1976. Thus the alleged arrearage should be no greater than $1,775.00.”

The findings recite the proceedings in the Court in Davidson County; that petitioner was employed at a salary of $340.00 a month on a ten month basis, as a schoolteacher, which was her entire source of income; that $75.00 a month payment for September, 1975, was the last contribution for support received from the respondent.

At the hearing before Judge Trimble, the attorney for petitioner called respondent to the witness stand and, among other things, he was asked and answered:

“Q. Do you currently owe any child support payments for the support of your minor child, Jeffry A. Koehler, payable to the petitioner, Helen Koehler?
A. No.
Q. Do you owe the petitioner past child support in the amount of $2,100.00?
A. Yes.”

A motion for a new trial was made by the respondent and was overruled by the Court and an appeal granted and perfected to this Court.

—Assignments of Error—

While there are six separate assignments of error, the brief and argument of counsel for respondent states that there are only three issues on this appeal which may be stated as follows:

1. Was the Trial Court’s judgment increasing respondent’s child support payments from $50.00 to $75.00 beyond his jurisdiction?
2. Was the Trial Court’s judgment awarding $2,100.00 arrearages in support proper and within his jurisdiction?
3. Did the Trial Court commit reversible error in failing to file conclusions of law pursuant to the motion for Findings of Fact and Conclusions of Law?

The Reciprocal Enforcement of Support Act, § 36-901, et seq., T.C.A., provides:

“86-901. Purpose of chapter. — The purposes of this chapter are to improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.”

The notes in the Code show a list of the States that have adopted this Uniform Act, including Arizona, New York and Tennessee.

Section 36-907 provides:

“Duties of support applicable under this chapter are those imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought. The obligor is presumed to have been present in the responding state during the period for which support is sought until otherwise shown.” [Emphasis supplied]

Section 36-920 provides:

“If the court of the responding state finds a duty of support, it may order the respondent to furnish support or reimbursement therefor and subject the property of the respondent to such order.

Section 36-922 provides:

“In addition to the foregoing powers, the court of this state when acting as the responding state has the power to subject the respondent to such terms and conditions as the court may deem proper to assure compliance with its orders . . .”

Section 36-928 provides:

“No proceeding under this chapter shall be stayed because of the existence of a pending action for divorce, separation, annulment, habeas corpus or custody proceeding.”

Appellant insists that the Uniform Act in question is a procedural act designed solely for the purpose of enforcing orders of foreign courts relating to support of dependent children.

While this is the minority view, as expressed in Freeland v. Freeland, 313 S.W.2d 943, Texas Court of Civil Appeals (1958), and Darty v. Darty, 33 Tenn.App. 321, 232 S.W.2d 59, 62 A.L.R.2d 546, we think that in a majority of jurisdictions the contrary rule is applied and that the Tennessee Courts, while not speaking directly on this point, have indicated a concurrence with the majority view.

For instance, in New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947), Justice Frankfurter, speaking for the Supreme Court of the United States, summarized the underlying policy of the states’ right to modify decrees in domestic relations matters. He said:

“The constitutional policy formulated by the Full Faith and Credit Clause cannot be fitted into tight little categories or too abstract generalities. That policy was the nation-wide restriction of litigiousness, to the extent that States, autonomous for certain purposes, should not be exploited to permit repetitive litigation. . . . Such limitation does not foreclose inquiry into what was litigated and what was adjudicated. The scope of the Full Faith and Credit Clause is bounded by its underlying policy and not by procedural considerations unrelated to it. Thus, in judgments affecting domestic relations technical questions of ‘finality’ as to alimony . . . seem to me irrelevant in deciding the respect to be accorded by a State to a valid prior judgment touching . . . alimony rendered by another State.” [67 S.Ct. p. 907]

In Hester v. Hester, 59 Tenn.App. 613, 443 S.W.2d 28 (1969), our Court spoke on this question in dealing with a petitioner, a resident of Georgia, who filed an action in Hamilton County, Tennessee, under the Uniform Reciprocal Enforcement of Support Act and, as a result of that hearing, respondent’s child support payments were reduced from $600.00 as ordered by the Courts of Georgia to $450.00 a month.

In a suit to recover the deficiency under the Georgia decree, this Court [Eastern Section] said:

“Upon first consideration we were inclined to hold that by instituting and receiving the benefit of the reciprocal support judgment, plaintiff had impliedly consented to a reduction in child support from $600 per month to $450 per month. T.C.A. § 36-926, however, expressly provides that a judgment for support under the Reciprocal Enforcement statute shall not supersede ‘any previous order of support or separate maintenance action.’ ”

The case of Proctor v. Sachner, 143 Conn. 9, 118 A.2d 621 (1955) is a proceeding on petition for support transmitted by an Ohio Court by exemplified copy to the Court of Common Pleas, Hartford County, Connecticut, under the Uniform Reciprocal Enforcement of Support legislation. The defendant claimed that the Ohio divorce decree ordered him to pay $5.00 weekly and had not modified that decree, hence, this was determinative of the Connecticut Court’s right to increase said payments, and that the decree of the Connecticut Court ordering him to pay $60.00 a month was beyond that Court’s jurisdiction, but the Court held:

“A judgment for child support rendered in the court of a foreign state may be modified as to future support by a court of competent jurisdiction in Connecticut if the court of the foreign state has a power under the law of that state to make such modification.”

The opinion recites that the parties had executed a separation agreement providing for the defendant to pay $5.00 weekly for the support of the minor child.

The mother and minor child who resided in the State of Ohio filed a proceeding against the defendant in the Common Pleas Court of that State to compel him to support the minor child, alleging that the necessary monthly expenses of the child amounted to $65.00. The Judge who examined the petitioner under oath certified that the proceeding was commenced under the Uniform Reciprocal Enforcement of Support Act of Ohio and that, according to the testimony of the petitioner, the needs of the dependent was the sum of $60.00 a month and that the petition sets forth facts upon which it may be determined that the respondent owes a duty of support and that said petition should be dealt with according to law and it was certified to the Common Pleas Court of Hartford County, Connecticut.

As in the case at bar, the Connecticut Court increased the child support payments to $60.00 a month. The Court then further held:

“The father who was summoned by the Connecticut court to show cause why the order prayed for by the mother in the petition transferred by the Ohio Court under the Uniform Reciprocal Enforcement of Support legislation and who had an opportunity to examine the mother by means of deposition or written interrogatories was not deprived of due process of law by Connecticut court order for support of the child in Ohio.”

In Whittlesley v. Bellah, 130 Cal.App.2d 182, 278 P.2d 511 (1955) the Court held:

“Where New York was the place of the child’s residence and California the place of the father’s residence, California Court had jurisdiction to ascertain and enforce adequate support for the minor child, even though the child’s father and mother had obtained a Nevada divorce decree.”

The Court further said:

“And it may be presumed that the Trial Court in California will properly evaluate the proof as to the child’s necessities with the ability of the father to pay, and with a judicial discretion that will not penalize the father for not having been able to cross-examine the mother. Moreover, he may yet cross-examine her in New York by deposition.”

To like effect is Moore v. Moore, 252 Iowa 404, 107 N.W.2d 97 where it was held:

“The District court, acting under the Uniform Support of Dependents Law, has authority to determine, as court of responding state, amount of support which must be paid by one who is liable for support of another domiciled in another state, even though there is in effect a valid order of a court of a third state fixing an amount of support to be paid.”

We also think that the language of the Tennessee statute clearly indicates that the Court is vested with authority to increase or reduce child support payments, depending upon the facts and circumstances of each case. It is to be noted that Section 36 — 907, T.C.A., states, in pertinent part:

“Duties of support applicable under this chapter are those imposed or imposable under the laws of any state where the obligor was present during the period for which support is sought.”

And, Section 36-902(6), T.C.A., defines the duty of support to include any duty of support imposed or imposable by law.

Also see Brown v. Thomas, 221 Tenn. 319, 426 S.W.2d 496 (1968).

Thus, we hold that the Trial Judge did not exceed his jurisdiction in ordering the increase of payments of support for the minor child from $50.00 to $75.00 a month, the New York Court having found that $75.00 per month was needed and was proper for the child’s support and certified it to the Tennessee Court for judgment.

As to the right to render judgment for the arrearage of $2,100.00, while there was not a specific prayer in the petition for a judgment in the Tennessee Court for the arrearage, the allegation was made that such arrearage did exist and the respondent specifically admitted that such arrearage did exist and stated that the amount of the arrearage was $2,100.00 but insisted that he was entitled to a credit of $325.00 for having paid $25.00 a month over and above the amount required by the Arizona decree and we are inclined to agree that he is entitled to a credit of $325.00 as insisted by him. However, this will not affect the $75.00 a month payments under the Tennessee decree and he will not be entitled to additional credits on the arrearage by paying the $75.00 a month as ordered.

In support of the right and power of the Court to give judgment for the arrearage, see Hester v. Hester, supra, where it was said:

“Under public policy of Tennessee, the accumulated amount due under a foreign alimony decree will be enforced in Tennessee to the same extent as decrees of Tennessee Courts, even to the extent of holding the respondent in contempt for failure to pay the entire sum.”

And, in Schmidt v. Schmidt [Tenn.1973], 493 S.W.2d 720, it was held:

“Where defendant admitted the amount of alimony delinquency claimed by plaintiff under a California divorce decree established as a foreign judgment, the chancery court was authorized to enter summary judgment for plaintiff, notwithstanding that 30 days’ notice before the time fixed for hearing was allegedly not given.”

As to the assignment charging error in the Court’s failure to include in his findings of fact his conclusions of law, while Rule 52.01, Rules of Civil Procedure, indicates that it is the duty of the Trial Court to state expressly its conclusions of law and fact, we find no error in the action of the Trial Judge in the case at bar because the only questions of law involved upon which conclusions were sought by the respondent and his counsel were whether or not the Court had jurisdiction to increase the child support payments and grant a judgment for the amount of arrearage admitted to be owing by the respondent.

The Court could not have stated his conclusion more plainly than he did by rendering judgment over the objections of the respondent, both as to the increased child support payments and the judgment for arrearage.

Prom all of the foregoing it results that the assignments of error are overruled and the judgment of the Trial Court is affirmed as hereinabove modified as to the amount of arrearage.

MODIFIED AND AFFIRMED.

TODD, J., partial dissent.

DROWOTA, J., concurs.

TODD, Judge, partial

dissent.

I concur in affirming the order to pay $75.00 per month, but must dissent from the affirmance of the judgment for arrear-age on procedural grounds.

The Tennessee Trial Judge did not order an increase in child support as insisted by appellant. The increase from $50.00 per month to $75.00 per month was ordered by the New York Court and properly enforced by the Tennessee Court. I do not question the power of the Courts of New York (where the child resides) to order support in excess of that previously ordered by the Arizona Court. The residence of the child within the jurisdiction of the New York Court confers this power. I do question the assertion that the Tennessee Court has power to increase the amount of child support of a child which does not reside and has never resided in Tennessee. Such power should be reserved to the divorce court under its continuing jurisdiction and to the courts of the place where the child might currently reside. However, this question is moot in the present case because the Tennessee Court did not increase the support.

As to the arrearage, the record shows that no petition was addressed to the Tennessee Court. There was filed with the Tennessee Court only a copy of the petition filed in New York and the judgment thereon. In neither instrument is there any mention of any application for or grant of judgment for arrearage. Unquestionably, the Tennessee Court has jurisdiction to entertain a suit upon foreign judgments, including arrearage upon foreign divorce decrees, but there must be some formal presentation of the claim in the form of a pleading to present the issue to the Court before judgment thereon is proper.

The admission of defendant as to the arrearage did not confer upon the Court the power to render judgment thereon without due pleading.

I would strike the judgment for arrear-age without prejudice to the right to file a proper suit for same.,


author: PARROTT, Presiding Judge (E.S.)

text:
    Guinn Franklin DOCKERY, Quay Dockery, Joe Dockery, Bobby Dockery, Chris Dockery, and Edith Buckner, Appellees, v. Della DOCKERY, Dr. Yutaka Kato, and Gary Gerbitz, Appellants, and Vickie Dockery and Laura Ann Dockery, Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    July 27, 1977.
    Certiorari Denied by Supreme Court Dec. 12, 1977.

      J. Tucker Montgomery, Hixson, John D. Lockridge, Jr., Knoxville, for Dr. Yutaka Kato.
    Gary Gerbitz, Dist. Atty. Gen., Floyd E. Morgan, Chattanooga, for Franklin Dock-ery, et al.
    W. Neil Thomas, III, Chattanooga, for Della Dockery.
    James M. Haley, IV, Chattanooga, for the minor children of Della Dockery.
   PARROTT, Presiding Judge (E.S.)

OPINION

This is an appeal from an action for declaratory judgment commenced by the family of Della Dockery to determine if Mrs. Dockery’s husband could be appointed her guardian with authority to remove her from a life-sustaining respirator. In the final decree, the chancellor appointed Mr. Dockery conservator for his wife and declared that Della Dockery’s treating physician had no authority to continue the use of the respirator, without the family’s consent, upon determining in accordance with professional standards of medicine in his community that: (1) there is no reasonable possibility of the patient ever emerging from the comatose condition; and (2) there is no reasonable possibility that the medical treatment that requires the invasion of the incompetent’s body will cure the patient, who is otherwise terminally ill. Appeals were perfected by the guardian ad litem for Della Dockery, by Dr. Kato, Mrs. Dockery’s attending physician, and by the Attorney General however; Mrs. Dockery died while the appeal was pending and the question of mootness has been raised.

On November 12, 1976, Della Dockery was admitted to Erlanger Hospital with asthmatic bronchitis, pulmonary emphysema, and a collapsed lung. She was transferred to the intensive care unit and placed on a respirator because of her pulmonary condition. At this time she was conscious and consented to the use of the respirator, a mechanism solely to assist the patient’s breathing. Soon after she was placed on the respirator, Mrs. Dockery developed car-dio-respiratory arrest from a massive pulmonary embolism. Doctors responded to her emergency condition by heart massage for six minutes until her vital signs returned. However, during that interval, Mrs. Dockery suffered cortical brain damage and became semi-comatose. At the request of Dr. Kato, the thoracic surgeon treating Mrs. Dockery for her respiratory condition, a neurologist, Dr. Neil Brown, examined Mrs. Dockery and found her to be decorticate:

Decorticate movement is a relatively rare type of movement to painful stimulation, which the arms come up to the chest and the legs extend straight out. This is indicative of a higher level of brain function than what we usually see in comatose patients, which is decerebration. All of her brainstem reflexes were intact, such as her pupillary responses, her extraocular movements, some degree of swallowing, and response to stimulation in the back of the mouth. The reflexes were generally brisk, as we would expect. (Testimony of Dr. Brown.)

It was stipulated at the commencement of trial that Mrs. Dockery was not “dead” within the meaning of T.C.A. 53-459. Further, the respirator was continued because of her pulmonary condition and not her neurological condition.

Upon filing the Suggestion of Death by her husband, the appellees filed a motion to dismiss for mootness. We will limit our consideration to the motion to dismiss for mootness and the assignment by Dr. Kato that the chancellor erred in taxing the costs against him. See, State ex rel. Lewis v. State, 208 Tenn. 534, 537-538, 347 S.W.2d 47, 48 (1960) (“where only the taxing of the costs is involved and the major question has become moot that we will not consider the question”); and 5 Am.Jur.2d, Appeal and Error, § 767, p. 210.

The courts in this State have consistently followed the principle that to invoke the jurisdiction of the court it is primarily essential that there be a genuine and existing controversy requiring present adjudication of present rights. Although the case may have originally presented such a controversy, if before decision it has lost that essential character through the act of the parties or some other cause, it is the duty of the court, upon the presentment of that fact, to dismiss it. This principle was followed by Justice Burnett in State ex rel. Lewis v. State, supra, involving an appeal from the trial judge’s denial of appellant’s petition for habeas corpus following his arrest and imprisonment for public drunkenness under T.C.A. 18-410. Appellant was released from jail after the grand jury returned a no true bill against him, but before his appeal from the lower court’s denial of his petition reached the Supreme Court. Although the constitutionality of T.C.A. 18-410, which allows the Clerks of the General Sessions Courts to issue warrants and other process was challenged, the Supreme Court held that courts in this State have no right to render advisory opinions and where the major question has become moot, the court will not consider the question. However, in New Rivieria Arts Theatre v. State, 219 Tenn. 652, 412 S.W.2d 890, 893 (1967) where the Supreme Court held that the lower court’s grant of a temporary injunction under T.C.A. 39-3005(a) prohibiting the showing of certain films prior to the determination that they were obscene was an unconstitutional application of that statute, the Court followed the general exception to the above-stated rule:

While the rule that this Court will not decide a moot question is applicable when the question for determination affects only rights and claims personal to the parties, an exception is well recognized when interests of a public character and of importance in the administration of justice generally are involved.

Consequently, an appellate court in Tennessee may entertain an appeal for final determination if it involves questions of public interest even though it has become moot so far as the particular action or parties are concerned. In McCanless v. Klein, 182 Tenn. 631, 188 S.W.2d 745 (1945), the Court considered the validity of certain powers of the Commissioner of Finance and Taxation in the sale and distribution of intoxicating liquors despite appellant’s admission that the commissioner had the questioned authority. “The decision as to whether to retain a moot case in order to pass on a question of public interest lies in the discretion of the court and generally a court will determine a moot question of public importance if it feels that the value of its determination as a precedent is sufficient to overcome the rule against considering moot questions.” 5 Am.Jur.2d, Appeal and Error, § 768, pp. 210-211. Because the general rule is to dismiss an appeal which has become moot, with the retention of such cases in the public interest being the exception to the rule, courts are inclined to refuse dismissal only under exceptional circumstances where the public interest clearly appears.

“It is not easy to state any hard and fast rules by which questions which are of sufficient public interest to justify refusal to dismiss an appeal which has become moot . may be distinguished from questions which are not of such interest, since the matter rests generally in the discretion of the appellate court in each particular case.” 132 A.L.R. 1188-1189. However, the starting point is to determine the meaning of “public interest.” Generally, public interest “means something more than that the individual members of the public are interested in the decision of the appeal from motives of curiosity or because it may bear upon their individual rights or serve as a guide for their future conduct as individuals.” 132 A.L.R. 1189. The types of issues the courts are likely to resolve despite their mootness are:

(1) questions that are likely to arise frequently;
(2) questions involving the validity or construction of statutes;
(3) questions relating to elections;
(4) questions relating to taxation, revenue, or governmental financial affairs;
(5) questions relating to the conduct of public officers or bodies;
(6) questions involving the governmental regulation of public utilities; and
(7) questions which must necessarily become moot before the appeal can be heard.

See the Annotation at 132 A.L.R. 1185-1190 for cases from different jurisdictions supporting each category.

In this State a mooted issue is within the public interest if “it is one of great public importance, as where it involves a determination of public rights or interests under conditions which may be repeated at any time.” McCanless v. Klein, supra 188 S.W.2d at 747. We do not believe that a determination of the right of a patient’s family to order the cessation of artificial means used to maintain the patient’s life is a question involving a “determination of public rights or interests.” On the contrary, the question presented on this appeal affects only rights and claims personal to the individual parties and does not fall within the perimeters of the exceptions as established in this State:

In Tennessee especially are the Courts restricted in their functions to a decision of controversies; that they act post fac-tum only, and can never be called upon to prescribe in advance what lawmaking bodies shall do or in what way parties in the future shall conduct their transactions in general. Whenever they do so, they lay themselves liable to the imputation of impertinence . . . . It is wisest that we in the main adhere to the practice of deciding such questions only as arise from the facts presented to us and to bear it in mind that when we step beyond the facts and undertake to adjudge something about which there is no jural clash we are deciding something as men and not as judges. (City of Nashville v. Hager, 5 Tenn.C.C.A. 192, 197 [1914] in which the court, affirming the lower court judgment that a city ordinance which unreasonably restricted producers’ rights to sell their products on the Public Square was invalid, refused to determine the rights of individuals to use this public area to protect them against future annoyance and interference from municipal authorities.)

We find the chancellor erred in taxing the fees of the guardian ad litem and the total costs against Dr. Kato, Mrs. Dockery’s attending physician.

Rule 17.03 of the Tennessee Rules of Civil Procedure provides that “ . the court may in its discretion allow the guardian ad litem a reasonable fee for his services, to be taxed as costs.” The chancellor, therefore, did not err in designating the guardian ad litem fee as part of the costs of the action. However, the chancellor’s order taxing the costs against Dr. Kato was erroneous and must be reversed.

Section 20-1621 of the Tennessee Code Annotated provides:

In all civil cases, whether tried by a jury or before the court without a jury, the presiding judge shall have a right to adjudge the cost. In doing so, he shall be authorized, in his discretion, to apportion the cost between the litigants, as in his opinion the equities of the case demand.

In addition, the declaratory judgment provision in T.C.A. 23-1111 provides that “the court may make such award of cost as may seem equitable and just.” The provisions give the trial court broad discretion in taxing costs to the litigants and it has long been recognized in this State that an appeal does not lie in an equity case to review the discretion of the chancellor on the question of costs unless there is a clear abuse. For cases announcing this scope of review see, State ex rel. Wilson v. Bush, Sheriff, 141 Tenn. 229, 234, 208 S.W. 607 (1918); Lewis v. Bowers, 216 Tenn. 414, 423, 392 S.W.2d 819 (1964); and State of Tennessee and County of Davidson v. Lewis, 78 Tenn. 168 (1882).

“Since an action for a declaratory judgment may be maintained only when plaintiff asserts rights which are challenged by defendant, where there was no controversy between the parties before the commencement of such an action, costs will not be awarded against defendants who did not challenge the rights claimed by plaintiff until after trial of the action.” 20 C.J.S. Costs, § 71, p. 329. Clearly, Dr. Kato, who was joined as a necessary defendant because of his status as Mrs. Dockery’s physician, should not bear the burden of the costs of a proceeding commenced by the plaintiffs to determine their authority to order that Mrs. Dockery be taken off the respirator and allowed to die. Certainly Dr. Kato was bound by his Hippocratic oath and possibly his individual sense of morality to continue his attempt to maintain Mrs. Dockery’s life by the medical means at his disposal. We cannot say the equities require the costs to be taxed to Dr. Kato; rather, the equities require that all costs, including the guardian ad litem’s fee, be paid by the complainants who began the action for declaratory judgment, even though they obtained the declaration sought. See, 22 Am.Jur.2d, Declaratory Judgment, § 101, p. 970, citing Erwin Billiard Parlor v. Buckner, 156 Tenn. 278, 283, 300 S.W. 565; Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1019 (1948); and Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 179 (1956) (taxing guardian ad litem fees as costs to complainants).

The assignments of error by the various appellants addressing the chancellor’s final decree are dismissed for mootness with the exception of Dr. Kato’s assignment of error regarding costs. For the reasons stated, all the costs are to be taxed to the original plaintiffs and the estate of Della Dockery and the cause remanded to the chancery court for the necessary actions not inconsistent with this Court’s holdings.

SANDERS and GODDARD, JJ., concur.


author: ONION, Presiding Judge.

text:
    Danny Wayne BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56606.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1978.
    Johnny R. Kolenda, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Ira L. Jones, II, Asst. Dist. At-tys., Houston, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation. On January 22, 1976 appellant entered a plea of guilty before the court to the offense of possessing a controlled substance, Tetrahydrocannabinols. His punishment was assessed at four (4) years’ confinement, but the imposition of sentence was suspended and he was placed on probation subject to certain conditions.

On December 16, 1976 the State filed a motion to revoke probation alleging that appellant had been in possession of heroin on June 13,1976, and had on the same date delivered heroin to W. J. Stewart.

On February 8, 1977 the court conducted a hearing on such motion, at which time the appellant entered a plea of “true,” after which the court revoked probation and imposed sentence. Notice of appeal was given.

On appeal appellant only claims that the original indictment was fundamentally defective. Ordinarily collateral attacks are not permitted on the original conviction upon which probation has been revoked, but where fundamental error in the indictment, etc., are urged, such questions have been considered because to require a separate habeas proceeding to attack such a conviction would be to require a useless thing. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Perkins v. State, 504 S.W.2d 458 (Tex.Cr.App.1974); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Appellant contends the failure of the original indictment to allege that the controlled substance was not obtained directly from or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice. Attention is called to Article 4476-15, § 4.04(a), Vernon’s Ann.T.S. (Controlled Substances Act), which reads:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice.”

The indictment in relevant part alleges the appellant

“ . . . did then and there unlawfully, intentionally and knowingly possess a controlled substance, namely, Tetrahy-drocannabinols . . . .”

We find appellant’s contention to be without merit in light of § 5.10(a) of the Controlled Substances Act, which reads:

“It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”

Appellant’s contention is overruled.

The judgment is affirmed.


text:
    Danny Wayne BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56607.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1978.
    Johnny R. Kolenda, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Ira L. Jones, II, Asst. Dist. At-tys., Houston, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for delivery of heroin, wherein the punishment was assessed at eight (8) years’ imprisonment by the court.

In his sole ground of error appellant contends that the second count of the indictment under which he was indicted was fundamentally defective in that it failed to allege the delivery was not “authorized by this Act.” (Article 4476-15, § 4.03, V.A. T.S.)

The said § 4.03(a) of the Texas Controlled Substances Act reads:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufacturers, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.” (Emphasis supplied.)

It is appellant’s contention then that in a delivery of heroin it is absolutely essential that it be alleged the delivery was not authorized by the act.

Count two of the indictment alleged:

“And the Grand Jury aforesaid do further present in and to said Court, at said term, that DANNY WAYNE BAILEY, on or about June 13, 1976, in said County and State did unlawfully, intentionally and knowingly deliver to W. J. Stewart, a controlled substance, namely Heroin.”

The indictment thus alleged the delivery of heroin was unlawful, thus indicating it was not in accordance with the act. Even if the word “unlawfully” had not been alleged, the indictment would still have been valid. Vasquez v. State, 522 S.W.2d 910 (Tex.Cr.App.1975).

Further, § 5.10(a) of the Controlled Substances Act (Article 4476-15, supra), provides:

“It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”

It was not necessary for the indictment to allege that the delivery of heroin was not authorized by the act in question.

The judgment is affirmed.


author: CALHOUN, J.

text:
    CARR v. STATE.
    No. 15496.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    E. A. Bills, of Littlefield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Ausi-tin, for the State.
   CALHOUN, J.

Conviction is for transporting intoxicating liquor; punishment, confinement in the penitentiary for two years.

The facts in brief are as follows: A dance was being held at Smyer in Hockley county. The appellant, his wife and small son, together with two men by the name of Hill and Logsdon, went to the dance in appellant’s car. Appellant was driving the car. As the car neared the dance "hall, peace officers saw it come to a halt and two parties leave the car and go off to the side of the road and then come back and get into the car. They watched the car and saw appellant drive it near the dance hall and park it, all of the parties then getting put. On approaching the car, the officers testified that they saw the man Hill throw an object from the car after the car stopped, which object- was discovered to be parts of a pint of whisky. They searched the car but found nothing therein, but under the front spring they found two pints of whis-ky and under the rear spring a pint of whisky, and on the top of the automobile was found a pint of whisky; in all, about five pints were found -around the automobile.

A state’s witness claiming to be standing near the automobile at the time testified that, after the car had stopped, he saw the appellant hand out something which was placed around the car.

The wife of the appellant testified that she and her small son were the ones who got out of the automobile when it stopped before it got to the dance hall and no whisky was then taken out of the car and none was ever in the automobile that she had any knowledge o£

The appellant testified as a witness in his own behalf and denied any knowledge whatsoever that any whisky was in the automobile or that he had any connection whatever therewith' or that he in any manner aided any of the occupants of the automobile knowingly in the transportation of any intoxicating liquor on that occasion. The appellant also offered as a witness the man Logsdon, who was in the car with him at the time the liquor was found. He testified that at a former term of the court he had pleaded guilty and had received a suspended sentence for transporting the liquor found around the car. He further testified that he had transported the liquor and had put the liquor in appellant’s car while he was using it before they had started without the appellant’s knowledge and the appellant knew absolutely nothing about it and had nothing to do with the liquor. He also testified th'at he secreted the liquor around the car when they stopped and the appellant had nothing to do with that and did not aid or assist him.

The only matters presented here for review relate to the manner in which the case was submitted to the jury as contained in the exceptions and objections to the court’s charge. Appellant filed written exceptions to the court’s charge at the time it was presented to him before it was read to the jury. The objection to the charge was that the same failed to charge the law applicable to the case and that such charge was vague, indefinite, and argumentative and did not present to the jury the defendant’s defense herein; that said charge as a whole attempts to charge the state’s theory of said cause and fails to present affirmatively the defendant’s defense herein.

The court charged the jury as follows: “If you believe from the evidence in this case beyond a reasonable doubt that the defendant, John Carr, did in the County of Hockley and State of Texas, on or about the 7th day of February, A. D., 1931, as a principal, either alone or acting with some other person or persons, unlawfully transport spirituous liquors capable of producing intoxication, as charged in the first count in the indictment, then you will find the defendant guilty and assess his punishment at confinement in the state penitentiary for any term of years not less than one nor more than five, as you may determine in your discretion, but if you have reasonable doubt as to the defendant’s guilt you will return a verdict of not guilty.”

This was followed by the statutory definition of principals, but nowhere in the charge did the court make any specific application of the law of principals to the facts.

Under the facts of this case, in connection With the law of principals, the converse should have been given, namely, that the mere presence of the appellant did not in itself make him guilty and the jury should have been charged that, before they would be justified in finding the appellant guilty, they must find that the appellant knowingly transported the liquor in question and that, if they found the appellant did not know that the liquor was in the car at the time same was transported or that if they had a reasonable doubt thereof, they should find the appellant not guilty.

It is a well-established principle of law that the mere presence, in the absence of proof of having agreed to.commit the offense, would not constitute one a principal. Section 681, Branch’s Ann. P. C., and authorities cited therein. The mere fact that the appellant drove said car without knowledge of the whisky being therein could not be made to abridge in any manner appellant’s defense and the failure of the court to- charge the converse of .the state’s theory destroys any defense appellant may have had and left him without any defense whatever under the evidence. We are of the opinion necessarily that the court committed reversible error in failing to submit an affirmative instruction covering the defensive theory. Where the evidence raises the defensive theory in an affirmative way, it is incumbent upon the court to submit it to the jury. Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377; Dodson v. State, 168 Tex. Cr. R. 267, 300 S. W. 934; Lewis v. State, 119 Tex. Cr. R. 265, 44 S.W.(2d) 375.

For the error pointed out, the judgment is reversed and cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.