author: ROBERT R. WELBORN, Special Judge.

text:
    Kenneth STAHLHUT, Plaintiff-Respondent, v. SIRLOIN STOCKADE, INC., et al., Defendants-Appellants-Respondents. MARTIN BROTHERS TILE COMPANY, Plaintiff-Respondent, v. SIRLOIN STOCKADE, INC., et al., Defendants-Appellants.
    Nos. KCD 28486, KCD 28502.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Gayles R. Pine, Robert G. Ulrick, War-rensburg, for Kenneth Stahlhut.
    Donald E. Raymond, Kansas City, for Sirloin Stockade, Inc.
    F. Philip Kirwan, Margolin and Kirwan, Kansas City, for Home Indemnity Co.
    J. Martin Anderson, Kansas City, for Martin Bros. Tile Co.
    Before WELBORN, Special Judge, Presiding, PRITCHARD, J., and HIGGINS, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Actions by subcontractors to establish mechanics’ liens and for recovery on surety bonds on construction project. Trial court upon trial of claims there consolidated refused to allow mechanics’ liens but entered judgment in favor of subcontractors on performance bond. Surety on bond appeals.

On September 18, 1972, C. F. Moreland Construction Company, a Missouri partnership composed of C. F. Moreland and Keith Crawford, entered into a contract with Sirloin Stockade, Inc., for the construction by Moreland of a building for Sirloin in War-rensburg. The contract price was $82,-820.00. The contract required Moreland to furnish a bond to protect the owner against loss occasioned by mechanics’ liens and against loss on account of materials or labor furnished for the project.

Moreland obtained two bonds from The Home Indemnity Company. One was a performance bond, the other a payment bond.

Moreland began work on the project and completed the site work in January, 1973. The work was held up because of changes in the building plan.

On January 24, 1973, a corporation was organized under Texas law by three otherwise unidentified incorporators. The name of the corporation was T.M.C. Construction & Investment, Inc. Moreland, Crawford and Grady Truitt were named as original directors of the corporation. In April, 1973, Home issued endorsements on workmen’s compensation and contractor’s general liability policies issued by it to Moreland by which T.M.C. was added as a named insured under the policies.

Although there was no formal assignment of the contract between Sirloin and Moreland, according to Crawford, T.M.C. took over the Warrensburg project as the general contractor.

Under date of April 6, 1973, T.M.C. entered into three Sub-contract Agreements with Kenneth Stahlhut on the Warrensburg job. One was for complete roofing, at a contract price of $3,500.00. The second was for masonry work, at a contract price of $10,900.00. The third was for sheet rock at $2,600.00. Stahlhut began work on the project. He billed T.M.C. for progress payments and received payment from T.M.C. He also received one payment from More-land Crawford Corporation, Inc., by a check which was returned for insufficient funds. The amount of the check was eventually paid.

Some date prior to October 16, 1973, Stahlhut submitted his final request for payment to T.M.C. in the amount of $6,049.44. This included the amount due and unpaid under his three subcontracts, plus $246.21 claimed due for extra work. T.M.C., on October 16, 1973, advised Stahl-hut that it had paid Stahlhut’s suppliers $2,032.02 which should be credited against the amount claimed by Stahlhut. T.M.C. also rejected the claim for extra work and told Stahlhut that the amount owed him was $3,671.28.

On July 30, 1973, Martin Brothers Tile Company entered into a written subcontract agreement with T.M.C. under which Martin was to provide labor and material for installation of ceramic and quarry tile on the Warrensburg job for a contract price of $5,193.00. Martin began work under the contract on July 30 and completed its contract November 1, 1973.

As the Warrensburg job progressed, Sirloin dealt with T.M.C. It forwarded a revised plot plan for the project to T.M.C. on July 12, 1973. On July 25, 1973, it issued change orders to T.M.C. One payment for work was made by Sirloin to T.M.C.

The Warrensburg job was beset with difficulties almost from the outset. A problem arose with regard to the location of the building which required changes in the foundation and footings after they had been laid. As early as April, 1973, Sirloin advised Home that complaints had been received that the contractor was not paying his bills. Difficulties with the contractor continued and on September 6, 1973, an attorney for Home addressed a letter to Moreland and T.M.G. Construction & Investment, referring to the bonds issued by Home and complaints which had been received about unpaid bills. On the same date, Sirloin notified the attorney for Home that it appeared that the contractor would be able to finish the job.

Earl Ulmer, construction coordinator for Sirloin, first visited the job in the latter part of September, 1973. He found much of the work which had been done unacceptable. Little work was being done. Bills were unpaid. He could not find Mr. More-land or Mr. Crawford. He got in touch with Home in October and told them he did not think the job was being done right. Home’s attorney asked him to work with Mr. Hudson. Ulmer and Hudson went over the job on October 28 and the decision was made to terminate the construction contract.

On November 1, Stahlhut entered into a fourth subcontract with T.M.C., dated November 1, 1973, by which Stahlhut agreed to do the work necessary to complete the building for $16,500.00. According to Stahlhut, he discussed the contract with Moreland and Crawford before it was executed on behalf of T.M.C. by the job superintendent.

Jim Jenkins, whom Sirloin had hired as their job superintendent, learned of Stahl-hut’s contract and got in touch with Ulmer. Ulmer and Hudson came to Warrensburg on November 7 and met with Stahlhut and some suppliers who had not been paid for materials used on the job. According to Stahlhut, he told them of the amount due under his first three contracts. The fourth contract was discussed. Ulmer first told him that he did not know whether he could go along with that contract or not. After a telephone call, presumably to a Sirloin superior in Oklahoma City, Ulmer said, according to Stahlhut, for Stahlhut to go ahead and finish the job as soon as possible and “that one of them (Sirloin or Home) would have to pay me.”

Ulmer’s version of the conversation was somewhat different. According to him, after he returned to Oklahoma City following the October 28th meeting with Hudson, notice of termination of the contract was prepared and mailed to all interested parties, including T.M.C., Moreland and Home. Under the terms of the contract, ten days’ notice of cancellation was required and that time had not passed at the time of the November 7th meeting. He told Stahlhut that, since Sirloin could not yet take over the job, he could not stop him from working and that if he felt that he had a bona fide contract with T.M.C. and was satisfied he was going to get his money, Sirloin could not at that time stop him from working. He told Stahlhut: “I’m assuming that somebody has got to pay you if you work, if you do this work and it is acceptable, why then someone is going to pay you and probably it would be the bonding company. It is certainly not going to be the Sirloin Stockade.”

By letter dated November 9, 1973, Sirloin’s general counsel advised Stahlhut that it had declared its contract with Moreland in default. “We have never been advised what TMC Construction and Investment, Inc. legally has to do with the construction of our building and, therefore, cannot recognize your subcontract with TMC * * .”

After receiving the letter, Stahlhut called Ulmer and talked to him. According to Ulmer, he again told Stahlhut that Sirloin could do nothing until the ten-day notice period had expired and that Ulmer could neither tell him to work or not to work on the job. He told Stahlhut that whatever work he did before the expiration of the notice period would have to be paid for by someone but that Sirloin would not pay him.

According to Stahlhut, he began working toward completion of the building. He contracted with electricians for completion of the wiring and work proceeded on the other matters called for by his contract.

Sirloin concluded that the necessary notices of termination of the contract had been served by November 13 and that it would take over the job on November 23. On that date, Ulmer came to the job and had everybody working on it leave. The locks on the building were all changed.

Sirloin entered into an oral arrangement with M & M Construction Company to complete the building. M & M was paid some $30,000 by Sirloin for completing the work. The building was opened on December 28. According to Stahlhut, he could have completed the job in about three days after he had been locked out at a cost of about $1,000.00.

On December 18, 1973, Stahlhut filed his claim for a mechanic’s lien in the Johnson County Circuit Court. Martin filed its lien claim on December 6, 1973.

On December 31,1973, Stahlhut filed suit in the Johnson County Circuit Court against Sirloin, T.M.C., Moreland, Home and others. His amended petition on which the matter was tried was in four counts. By Count I, plaintiff claimed that $22,520.51 was due him under his contracts with T.M.C. He sought judgment in that amount against Sirloin, T.M.C., Moreland and Home and the establishment of a mechanic’s lien on the Warrensburg premises. Count II sought recovery of $23,000 from Home under the payment bond issued by Home to Moreland. Count III sought $16,500 from Sirloin and Home on the grounds that they had agreed to pay Stahlhut that amount for the completion of the building. Count IV against Sirloin and Home sought actual and punitive damages for fraudulent representations.

Martin’s petition, filed February 5, 1974, sought recovery of $5,193 claimed due it for work and material under its contract for its work on the job. It sought judgment in that amount against, among others, Sirloin, T.M.C., Moreland and Home and a mechanic’s lien against the property.

The cases were consolidated and, along with those of other claimants, tried to the court. In Stahlhut’s case, the court made the following finding:

“1. That as to Count I, plaintiff has complied with the terms of the several contracts entered into with the defendant prime contractors, T.M.C. Construction and Investment Company, Moreland-Crawford Corporation, C. F. Moreland Construction Company, Keith Crawford and C. F. More-land, d/b/a C. F. Moreland Construction Company with reference to the construction of the Sirloin Stockade, Inc. building located in Johnson County, Missouri; that the materials and labor went into the construction of the said building and that there is now due and owing plaintiff by the said defendants the sum of $20,161.68 plus interest in the amount of $2,318.40, making a total due plaintiff of $22,408.08; that the defendant Home Indemnity Company is also liable to the plaintiff for the aforesaid amount of $22,480.08, as surety, on the performance bond executed by it due to the fact that the original contract has been breached by the original contractors; that T.M.C. Construction and Investment Company is the successor corporation to C. F. Moreland Construction Company and is liable for all of the latter’s obligations.”

The court found that plaintiff was not entitled to a mechanic’s lien because of the inadequacy of his lien notice.

The court made a similar finding with respect to Martin, finding that Martin had not been paid for $5,193 worth of labor and materials, plus interest of $623.16. The court further found that Home had entered into a performance bond with Moreland and that the breach of the construction contract by Moreland and “successor contractors” rendered Home liable to Martin. Judgment was entered against T.M.C., Moreland, Moreland-Crawford Corporation, Inc., and Home for $5,816.16. Martin’s lien claim was also rejected because of inadequacy of the lien statement.

Home appealed from the judgment against it in each case.

As to both respondents, appellant asserts that the trial court erred in entering judgment against it on its performance bond because by the express terms of that instrument no cause of action thereunder accrued for the benefit of either of the respondents.

As above noted, Home issued separate performance and payment bonds for the job. Although Stahlhut's petition stated its claim against Home on the payment bond, the judgment entered was on the performance bond. Martin’s petition does not state the basis for its claim against Home, but, again, judgment in favor of Martin against Home was on the performance bond.

The performance bond contained the following provision:

“No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein (Sirloin) or the heirs, executors, administrators or successors of the Owner.”

In La Salle Iron Works, Inc., v. Largen, 410 S.W.2d 87 (Mo. banc 1966), the court recognized the right of a materialman who furnishes materials on a construction project to recover as a third-party beneficiary under a payment-bond issued to protect the owner against nonpayment of persons supplying labor or materials for the project. The court held that a bond conditioned upon the payment of claims for material and labor and not otherwise limiting the persons entitled to sue thereon evidences “an intent to confer a right of action upon materialmen against the surety; * * *410 S.W.2d 92.

Pertinent to this case is the court’s observation (410 S.W.2d 91):

“ * * * If the surety wishes to exclude this type of liability it may consider such a bond as is shown in Bourrett v. W. M. Bride Construction Company, 248 Iowa 1080, 84 N.W.2d 4, where all rights of action by any one except the named obligee in the bond were expressly excluded.”

The Bourrett case involved a claim by a materialman under a bond which provided:

“That no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the obligee herein named; * * *

The court held that the bond was intended to indemnify the owner only. The provision of the bond limiting the right of action thereunder was said to make that conclusion “doubly clear.” See 17 Am.Jur.2d, Contractors’ Bonds, § 20, p. 205 (1964).

In Coates v. U.S. Fidelity & Guaranty Co., 525 S.W.2d 654 (Mo.App.), the court applied the distinction recognized in La Salle. In Coates, laborers employed by a subcontractor on a project sought to recover unpaid wages from a surety which had issued separate performance and payment bonds on a project. The court noted that the performance bond gave no right of action to anyone other than the owner and purported to give no right of action to anyone else. The court concluded that any recovery by the laborers would have to be under the payment bond. For reasons not here important, the court further found against plaintiffs on the payment bond. Coates does not cite La Salle, but it is obviously consistent with the observation found in that case.

Respondent Stahlhut counters appellant’s argument on this point by contending that the contract required the contractor to furnish a performance bond “for the full protection of Owner against loss or damage that may be occasioned by mechanics’ or other liens, or by loss or claim on account of material or labor furnished, and as security for the due and faithful performance of this agreement * * *Stahlhut argues that this provision required the performance bond to be for the payment for materials and labor furnished and that when the performance bond made the contract part of the bond, the bond must be construed to include an obligation by the surety for payment of labor and materialmen’s unpaid claims.

This argument ignores the fact that the contractor did provide a payment bond, expressly conditioned upon payment for all labor and material. The parties to the contract have by this action construed it to permit separate bonds to be given to cover the obligations imposed under the contract. The separate bond for payment for labor and material fulfilled the contractor’s obligation to provide a bond for such purpose. There is no reason to construe the performance bond and the contract as duplication of the coverage of the payment bond.

Appellant’s contention on this issue is meritorious. Respondent Stahlhut suggests that the reference in the judgment to the performance bond was an oversight which this court can correct by substituting “payment” for “performance” in the trial court’s judgment. Having been successful below, Stahlhut may advance in this court a theory of recovery rejected by the trial court even though he took no appeal and without necessity of reliance on the plain error rule. Cascio v. Garrett, 535 S.W.2d 272, 274[5, 6] (Mo.App.1976).

Stahlhut asserts that the evidence “clearly established” that he was entitled to recover on the payment bond. Appellant’s reply brief asserts that there was no evidence warranting a finding of liability on the payment bond. Appellant asserts that Stahlhut produced no evidence that he qualified as a “claimant” under the payment bond, which included the following provision:

“1. A claimant is defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract.”

Appellant contends that the C. F. More-land Construction Company, a partnership, was the principal of the payment bond and that Stahlhut’s claim on the partnership contract was based upon contracts with T.M.C., not Moreland, and that his claim on the fourth or completion contract was based upon either a written contract with T.M.C. or an oral contract with Sirloin. Inasmuch as the trial court found against Stahlhut on the claimed oral contract with Sirloin, the contention that the payment bond did not cover such an obligation need not be pursued.

Stahlhut’s principal reliance in arguing that the evidence showed liability of Home on the payment bond is upon the letter of Home’s attorney, dated September 6, and addressed to, among others, T.M.C. Stahlhut argues that the letter referred specifically to Home’s bonds and stated that the work was not proceeding to the satisfaction of the surety. Based on this letter, Stahlhut argues that Home is estopped to assert that T.M.C. was not covered as a principal under the bonds. Overlooking the question of the absence of any pleading of estoppel by Stahlhut, the argument is without merit because Stahlhut in no manner demonstrates the reliance upon that communication, essential to the establishment of an estoppel. Chrysler Credit Corp. v. Friendly Ford, Inc., 535 S.W.2d 110, 112[1] (Mo.App.1976). There is no evidence that Stahlhut ever saw the letter and nothing to support any finding that he thereafter acted in reliance upon it.

Stahlhut also points to the trial court’s findings that T.M.C. was a “successor” of Moreland. However, Stahlhut does not demonstrate how that finding causes T.M.C. to become a principal on the payment bond. The bond was issued to More-land as principal. Nothing in the terms of the bond extends its coverage to a “successor” of the named principal. In fact there was evidence that Home refused to issue a bond covering T.M.C. In that situation, the court should not rewrite the bond to make T.M.C. a party to it.

Martin advances a theory for affirming the judgment in its favor on the performance bond. Its argument is that T.M.C. was a subcontractor under Moreland. This argument ignores the problem, previously considered, of the limitation upon the right to sue, found in the performance bond. As previously noted, Home’s position on that question is meritorious. No recovery on the performance bond is available to Martin.

Neither of the respondents is entitled to recover on the performance bond. The trial court’s judgments awarding respondents recovery on the performance bond must be reversed. Neither of the respondents has advanced a theory entitling them to recover on the payment bond issued by Home.

In Cause No. 28,486, the judgment in favor of Kenneth Stahlhut against Home Indemnity Company is reversed.

In Cause No. 28,502, the judgment in favor of Martin Brothers Tile Company against Home Indemnity Company is reversed.

Judgments reversed.

All concur.


source: Caselaw Access Project

author: WASSERSTROM, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert B. NEWMAN, Appellant.
    No. KCD29402.
    Missouri Court of Appeals, Kansas City District.
    June 12, 1978.

      Michael L. McDorman, Versailles, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant was tried to a jury on a charge of first degree murder. The case was submitted on instructions covering felony murder in the first degree, murder in the second degree, manslaughter and robbery in the first degree by means of a dangerous and deadly weapon. The jury found defendant guilty of murder in the first degree and fixed his sentence at life imprisonment.

The events in question occurred on the late afternoon of April 30, 1976. At about 6:00 p. m. on that day, Lela Nolting, an employee of Nolting’s Department Store, was found dead inside the store by the cash register. Her face and head were slashed with wounds such as would have been caused by a knife. The cause of death was a bullet wound to the head.

Defendant and his nephew, Steven Carver, had been seen entering the store shortly before the normal closing time of 5:30. Carver was charged with the crime along with defendant, and Carver pleaded guilty to armed robbery and was sentenced prior to the commencement of defendant’s trial. At this trial, Carver appeared as a witness for the prosecution and testified that he and defendant had planned to steal money out of the cash register by means of Carver distracting the clerk while defendant actually took the money. Carver did initiate this plan by going down into the basement portion of the store to look at merchandise, accompanied by Lela Nolting. However, the initial plan of theft for some reason miscarried. Carver and Nolting returned to the main floor of the store, at which point he testified that he went over to look at some belts. According to his testimony, the next thing he knew was hearing a shot, at which he turned and saw Nolting slumping against a counter. He then started moving in Nolting’s direction and heard another shot from behind him, after which Nolting completely collapsed. Carver disclaimed any knowledge of any slashing or knife cutting to Nolting. Immediately following the actions described, Carver and defendant proceeded to take money from the cash register, together with some merchandise and made their escape from the store. Carver testified that he had sold defendant a sawed off automatic rifle earlier in the day, which defendant carried with him concealed on his person when the two men entered Nolting’s.

On this appeal, defendant assigns five points of which one by itself suffices for reversal and remand. Of the other matters assigned as error, two are likely to recur on retrial and hence will be briefly discussed.

I.

The crucial issue on which this appeal turns is the scope of the prosecutor’s cross-examination of defendant. Defendant took the stand on his own behalf, and on direct examination defense counsel followed the standard tactic of asking defendant about his prior convictions, thereby seeking to minimize as much as possible the adverse impact of that disclosure. In response to these questions on direct, defendant admitted that he had been convicted of passing bad checks in Benton County, Missouri, and of battery in Illinois.

Not content with leaving the matter there, the prosecutor sought to emphasize and amplify the prior convictions on cross-examination. That extensive effort was as follows:

“Q. Robert ah . you say you’ve been convicted of several crimes in Benton County for bad checks. Ah do you remember what your sentence . . . what sentence you received for passing bad checks in Benton County?
A. Two years.
Q. And did you go the Department of Corrections, State of Missouri, Jefferson City to serve that two' years?
A. Yes.
Q. Did you serve the whole two years?
A. Well, I served 10 months and got out on parole and then fell off parole.
Q. And you fell on parole. What happened when you violated your parole conditions?
MCDORMAN: Objection, Your Honor. It’s beyond the scope of direct.
COURT: Overruled.
Q. (By Johnson) You may answer the question. What happened when you fell from parole after serving 10 months in Department of Corrections?
MCDORMAN: Your Honor, may we approach the bench?
COURT: Yes.

(BENCH CONFERENCE OUT OF HEARING OF JURY)

MCDORMAN: Unless this would lead to a conviction, we would have the State ... I believe it’s beyond the scope.
COURT: Well, it’s my understanding that he’s interrogating about the conviction that your man talked about.
MCDORMAN: The conviction yes, but I don’t think he’s been . stated any since. I think he’s going into circumstances now beyond that. He’s got the way the statis [sic] of parole, I think anything beyond that is the scope of direct.
JOHNSON: If he fell from parole, then he goes back to prison.
COURT: Well, I would ask . . . permit you to ask if he was reincar-cerated in terms of that conviction.

(END OF CONFERENCE)

Q. (By Johnson) Robert, you say you were released after 10 months?
A. Yes. On parole.
Q. Okay. Where did you go after you were released?
A. To St. Louis.
Q. Ah did you do were you reincarcerated after that or reimprisoned?
A. Well, no, not really.
Q. Well, what happened? You say you went to St. Louis?
A. Yes.
Q. And you testified you fell from parole. What happened? What do you mean by the term, fell from parole?
A. I couldn’t live on parole standards and thusly .
Q. Well, what happened to you, because you couldn’t live on parole standards?
A. Well, . . .
What’d you do, what . . . you say you fell from parole and you live on parole standards?
A. Well, I just got drunk and got high on dope and just got where I couldn’t live on parole standards.
Q. All right, and then what happened to you? Did somebody do something to you because you couldn’t live on parole standards?
A. Yes, they ah . sent me to Fulton for examination.
Q. And while you were at Fulton for examination what did they find?
A. Well, they ... I don’t know the exact medical term for it, but ah . they said there wasn’t anything they could do at that time to help me.
‡ ⅜ ⅜ * * sfc
Q. (By Johnson) All right. Ah . what year were you in . . .ah . incarcerated in the Department of Corrections?
A. 1959. September, 1959.
Q. 1959?
A. 59. 69, I’m sorry about that.
Q. 1970. Were you imprisoned in 1970?
A. I think I was.
Q. All right, and you said you were incarcerated for 10 months and were released, you got into drinking and taking dope and everything and went to Fulton, State hospital No. 1 at Fulton. Ah . how long were you in Fulton?
A. 30 days, I think.
* * * * * *
Q. (By Johnson) All right, after you spent 30 days in Fulton, what did you do after you left there?
MCDORMAN: Objection. Beyond the scope of direct.
COURT: Sustained.
JOHNSON: May I approach the bench?
COURT: Yes.

(BENCH CONFERENCE OUT OF HEARING OF JURY)

JOHNSON: Your Honor, he testified that he had been convicted.
MCDORMAN: Your Honor, you said he can ask if he was incarcerated. Again, he’s getting beyond it. We’re not talking about convictions now.
JOHNSON: Well, we’re leading up to.
COURT: You started talking about the Illinois conviction and reprimanded to interrogate on that and is that where ■.
JOHNSON: I’m heading.
COURT: Well, let’s ask him specifically about that. You started once and stopped.

(END OF BENCH CONFERENCE)

Q. You testified that you were incarcerated someplace in Illinois?
A. Yes.
Q. When was that?
A. I was arrested 3/23/59. I mean, not 59, but 73, sorry about that.
Q. In 1973?
A. Yes.
Q. Now, what were you arrested for?
A. Ah . . .
Q. In 1973 in Illinois?
A. Getting in a fight in a bar room brawl. Ah .
Q. And where in Illinois did this occur?
A. In . . . actually it occurred in Louisiana, Missouri, but I ended up in Pittsville, Illinois, which is a short distance.
Q. And the crime occurred in one state and you were tried and convicted in another state, is that what your [sic] telling this jury?
A. Yes, that’s what I’m telling the jury.
Q. And what were the . . . did you stand trial?
A. Yes.
Q. Ah . . .
A. Well, actually didn’t stand trial, I copped a plea.
Q. You copped a plea?
A. For a negotiated plea. And .
Q. You’ve [sic] kind of worldly wise about copping pleas and getting reports from police officer.
A. Well, I . . .
MCDORMAN: Objection. That’s beyond the scope of direct.
A. May I answer?
COURT: Overruled. He may answer.
Q. You may answer.
A. I don’t see as where it makes any difference Mr. Prosecutor because until just . . . until now, I’ve never really got any scope of justice out of the society the way it is now. And I’m depending on these twelve jurors with the alternate there to bring in a verdict and at least give me some justice in this world.
Q. Well, you didn’t think you deserved to go to the penitentiary. And . and bad check writing for two years, that wasn’t justice to you?
A. Well, that is not in evidence. I, of course copped a plea then too. But ah . there was certain mitigating circumstances about it too.
Q. Well, like you might of been guilty of writing a bad check and cheating somebody out of some money. Is that possible?
A. Well . . .
Q. You did get some money for that bad check, didn’t you?
A. No.
Q. You didn’t? What did you get for it?
A. Nothing. The sheriff of Pettis County got that check.
Q. Well, the sheriff of Pettis County got that check?
A. Right.
Q. Well, who did you write who did you give the check to?
A. I never wrote the check.
Q. You never wrote the check?
A. I never wrote the check.
Q. Did somebody else write it for you?
A. Somebody else wrote it.
A. And it was a forgery of your signature?
A. No, it wasn’t. Well, actually yes, but I was there. I knew it was going on. All I was supposed to do was cash the check, which is this isn’t proper cross-examination, Your Hon- or.
Q. You did cash the check?
A. No, the check wasn’t cashed.
Q. You didn’t receive anything for it.
A. No.
Q. Except two year imprisonment?
A. Except two years.
* * * * * *
Q. (By Johnson) What sentence did you receive in Illinois?
A. 1 to 6.
Q. 1 to 6 years?
A. Yes.
Q. Ah did you stand trial?
A. No.
Q. Did you plead guilty to the charge of . brought against you by the state?
A. Mitigating with . . . I ah .
Q. Answer the question.
A. Yes, no.
Q. Did you plead guilty to the charge that the state of Illinois brought against you that resulted in the sentence of 1 to 6?
A. A negotiated plea, yes.
Q. And what was the charge that was brought against you by the state of Illinois that you negotiated a plea for and got 1 to 6?
A. Aggravated battery.
Q. Was there a weapon used?
A. Ah . . . well, yes, that’s how come I was in the fight in the first place.
Q. Well you were
A. That’s what aggravated battery is. It’s for the benefit of the jury. Ah . a man pulled a knife on me and I . being like it was, I just him him with my fist. There was no . . .he was the only one that had a weapon.
******
Q. (By Johnson) After you were sentenced, did you go to prison in the state of Illinois?
A. Yes.
Q. Ah . . . how long did you stay in prison?
A. Three years.
Q. Ah . . .
A. Actually not a full 36 months, but about ah . . . 30 or 34 or 35.
Q. 33. When were you released from prison?
A. February of this year.”

When a defendant in a criminal case takes the stand to testify, he opens the door to a showing by the prosecution of his prior convictions as affecting his credibility. This result follows from Section 491.050 and Section 546.260. (All statutory references herein are to RSMo 1969.) The first of those sections provides that a person who has been convicted of a crime is competent to testify, but that his conviction is admissible in evidence “either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry.” The section second above cited provides that one criminally accused may testify at his trial and is then subject to cross-examination “as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case.” These statutory sections have been interpreted to give the prosecution an absolute right to show the prior convictions once the accused elects to testify. On the other hand, that opportunity is not unlimited. The prosecution is entitled to show only “the nature and number” of prior convictions, and is not entitled to engage in cross-examination of the defendant with respect to details of the prior crimes. State v. Scott, 459 S.W.2d 321 (Mo.1970). In particular, as it affects this case, the prosecutor may not cross-examine with respect to the length of time the defendant was imprisoned, after that period of imprisonment has been fully served and concluded. State v. Slay, 406 S.W.2d 575,1. c. 580(7] (Mo.1966); State v. Hoelzer, 493 S.W.2d 703, 1. c. 706(7] (Mo.App.1973). See also State v. Porter, 538 S.W.2d 888 (Mo.App.1976).

Under the ruling in Slay, the whole line of cross-examination in question was improper. Defendant’s Missouri sentence had been fully served by 1972, and he had been released from prison in Illinois in February, 1976. The completion of both those prison terms accounts for his being at large on April 30, 1976, at the time the events occurred for which defendant was on trial in October, 1976.

The error in permitting the relatively simple questions as to how much time he had served in prison was compounded by the further questions put to him to elicit the facts pertaining to his breach of parole and his use of drugs as well as excessive consumption of alcohol during his period of parole. This latter cross-examination could not help but be devastating in the eyes of the jury. It further aggravated the poisonous effect of the improper elaboration upon the prior convictions, the general prejudicial effect of which was pointed out in State v. Mobley, 369 S.W.2d 576 (Mo.1963), and quoted with approval in State v. Scott, supra:

“All lawyers and judges know that a jury’s knowledge of prior convictions is, in itself, a most damning thing in the trial of a criminal case. When used for legitimate purposes, the defendant must take his chances on this. But prosecutors should not seize upon such an opportunity to further prejudice the defendant by undue repetition and insinuations, or to convey the idea of guilt by reason of the prior offenses.”

The State seeks to avoid the impact of this point by two arguments. It says, first, that defendant did not adequately object to all of the questions when asked. It has been held, however, there need not be an objection to each question put to a defendant on cross-examination which is beyond the scope of the direct examination in order to save the point for appellate review. State v. McKissic, 358 S.W.2d 1, 6 (Mo.1962). Wholly aside from that, defense counsel in this case made clearly and repeated objections to the improper cross-examination, as amply appears from the portions of the record already quoted.

The second argument made by the State in connection with this point is that defendant was not prejudiced by the cross-examination in question. The State argues that defendant’s “sole defense” was that he was not guilty by reason of mental disease or defect and that the matters brought out by the prosecution dealing with defendant’s inability to fulfill his parole requirements and his referral to the state hospital because of alcohol and drug abuse “are all to some degree beneficial to appellant’s theory of ‘mental disease or defect’.” It is true that defendant filed a plea of not guilty by reason of mental disease or defect excluding responsibility. However, the State’s argument conveniently ignores defendant’s right, despite that plea, to have the State prove the offense charged against him. Section 552.080-2 specifically provides that a plea of not guilty by reason of mental disease “shall not deprive the defendant of other defenses.” It would be excessively naive to believe that the prosecution engaged in the cross-examination in question in order to assist defendant to prove his objection to a mental defect; quite obviously, that cross-examination was undertaken in order to help persuade the jury as to the elements of the crime on which the State had the burden of proof. The State cannot be heard to say that this testimony, which it fought so hard to get in, was beneficial rather than harmful to defendant.

II.

When Carver appeared to testify as a prosecution witness, he was accompanied by his lawyer, Mr. Kenneth Romines. The court permitted Romines to sit at the prosecution counsel table and further permitted him to participate in the trial during the time that Carver was on the stand to the extent of making objections to a number of the questions submitted to the witness Carver. Defendant assigns as error the permission so granted by the trial court to Romines.

Defendant pitches his objection on the theory that Romines was a “private prosecutor” and that the practice of permitting private prosecutors was proscribed in State v. Harrington, 534 S.W.2d 44 (Mo. banc 1976). This theory of objection cannot be sustained for the reason that Romines was not a private prosecutor in the sense outlawed by Harrington. Rather Romines was present in the court room solely for the purpose of representing and protecting the rights of witness Carver.

Every witness should be accorded the right of counsel so that he may take advantage of the protections afforded him by the law, such as the privilege against self-incrimination and the privilege of confidential communication between attorney and client. See State v. Barker, 43 Wash. 69, 86 P. 387[2] (1906); Smith v. State, 78 Tex. Crim. 537, 182 S.W. 311[1] (1916). Nevertheless, that does not serve to make the witness a party to the prosecution and does not give him or his attorney any right to participate generally in the trial proceedings as one of the litigants. Carver had a right to have his attorney Romines present in the courtroom in order to object for the purpose of advising Carver of his right to refuse to testify to some particular question which would violate his legal rights mentioned; but Romines had no right to participate otherwise in the process of examination, and in this case the objections made by Romines did not relate to any privilege which would give Carver a right to decline to testify. The court therefore erred in permitting Romines to make routine objections outside the area of privilege to questions being asked of the witness. This should not be permitted to recur on retrial.

III.

The prosecution submitted a verdict directing instruction of first degree murder on the theory that Lela Nolting had been killed in the course of commission of a robbery, as proscribed by Section 559.010. Defendant requested an additional instruction under which the jury could find common law felony murder in the second degree on the theory that the death had occurred in the course of the commission of a theft as proscribed by Section 559.020. Defendant assigns as error on this appeal the refusal of the court to give that requested instruction.

Defendant urges that the evidence shows that defendant and Carver intended only to steal money from the cash register without any violence. In support of this thesis, defendant points to Carver’s testimony that he and defendant had agreed in advance on a plan for Carver to distract Nolting so as to permit defendant to steal money from the cash register unnoticed.

The trouble with this argument is that whatever may have been the original plan, that went awry. In actuality, violence was used, both by knife and by gun, before the taking. As between robbery and theft, the evidence showed only robbery. Therefore the court committed no error in declining to give the requested instruction. See State v. Pride, St. Louis District, Mo.App., 567 S.W.2d 426, 1978, and cases therein cited.

Because of the error in permitting an excessive scope of cross-examination with respect to prior convictions, the judgment of conviction is reversed and this case is remanded for new trial.

All concur.


author: BILLINGS, Chief Judge.

text:
    Sue PERRY, Plaintiff-Appellant, v. Mrs. Mary (Betty) BRISCOE, Goldie Ros-ner, Mrs. Jackie Dugan, David Collins, Jean Perry, Birdie Garoutte, Christopher Morey, First National Bank and Trust Company of Joplin, Trustee, Defendants-Respondents.
    No. 10214.
    Missouri Court of Appeals, Springfield District.
    June 27, 1978.
    James B. Fleischaker, Roberts & Fleisch-aker, Joplin, for plaintiff-appellant.

      Laurence H. Flanigan, Thad C. McCanse, Flanigan & McCanse, Helen E. Redding, Carthage, for defendants-respondents Mrs. Mary (Betty) Briscoe, Mrs. Jackie Dugan and Christopher Morey.
    James F. DeNeen, Joplin, for defendant-respondent David Collins.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

Plaintiff Sue Perry was denied relief by the Circuit Court of Jasper County in her multiple-count suit to set aside amendments to an inter vivos trust created by her aunt and to contest the will of her aunt which had been admitted for probate. In this appeal plaintiff has abandoned all of her claims except her challenge to the validity of the final amendment to the trust agreement. We affirm.

As a basis for her suit, plaintiff alleged the last two of six amendments of the trust agreement were the result of a confidential relationship, undue influence, coercion, fraud and deceit by defendant Briscoe, plus averments that her aunt, Mrs. Rothschild, was of unsound mind and legally incompetent to execute the last two amendments. Similar charges were directed to Mrs. Rothschild’s final Last Will and Testament.

The trial court made and entered extensive findings of fact and conclusions of law in entering judgment in favor of the defendants, and being a court tried case, we are to affirm the judgment “ . unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

We have read the trial transcript and the briefs of the parties. There is substantial evidence, much of which was elicited from plaintiff and her witnesses, to support the judgment of the trial court. The judgment is not against the weight of the evidence and no error of law appears. A rehash of the trial testimony would only demonstrate that the elderly aunt was an admittedly strong-willed individual who demonstrated a propensity to make changes in the trust agreement or revise her will when those who had earlier been favored fell into disfavor.

An opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 84.16(b), V.A.M.R.

All concur.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Darryl V. GREAR, Respondent.
    Supreme Court of Tennessee.
    May 30, 1978.
    Rehearing Denied July 24, 1978.
    John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel, for petitioner.
    Brett P. Stein, Memphis, for respondent.
   OPINION

BROCK, Justice.

The issue presented in this criminal case is whether the Court of Criminal Appeals erred in reversing the action of the trial court in denying the respondent’s application for a suspended sentence. Two subsidiary questions are presented:

(1) Did the trial judge abuse his discretion in denying suspension of the sentence?
(2) Did the Court of Criminal Appeals apply the correct criteria in reviewing the action of the trial court?

For his part in breaking and entering a place of business, along with two other persons, and taking therefrom a money changer machine valued at $1,000.00 and cash in the amount of $370.00 the respondent was indicted for third degree burglary, larceny, and receiving and concealing stolen property. Through a process of plea bargaining, these charges resulted in a plea of guilty by the respondent to a charge of petit larceny and a sentence of one year imprisonment. After serving a portion of the sentence, the respondent filed his petition for suspension of the remainder of the sentence which was denied by the trial court. The Court of Criminal Appeals reviewed the action of the trial court and in a two to one decision concluded that the trial judge had abused his discretion in denying a suspension of the remainder of the sentence.

I

The statute authorizing probation and suspension of sentence declares:

“The power of suspension and probation is within the sole discretion of the trial judge, ...” T.C.A., § 40-2904.

However, we have held that the discretion thus vested in the trial judge is not absolute but is a judicial one which is reviewable in the appellate courts and may be reversed if the appellate court finds that the decision of the trial court was an abuse of judicial discretion. Moten v. State, Tenn., 559 S.W.2d 770 (1977); Stiller v. State, Tenn., 516 S.W.2d 617 (1974); Hooper v. State, 201 Tenn. 156, 297 S.W.2d 78 (1956). An indication of what is meant by “an abuse of discretion” in this context was given in Moten v. State, supra, wherein we said:

“. . . where the effect of sustaining the denial of a probation would be to defeat the public policy of the state by placing it within the power of the trial judge to deny probation on a basis outside statutory criteria, and without valid reasons, we are left with no choice but to intervene . . ..” (Emphasis added.) 559 S.W.2d at 773.

The dissenting opinion by Mr. Justice Har-bison in the same case adds further enlightenment:

“Whether probation should or should not be granted to a particular criminal offender is conceded by the majority opinion to be a matter of such great discretion with the trial judge that reversal is warranted only upon a finding of an abuse of that authority and not upon the preponderance of the evidence.” (Emphasis added.) 559 S.W.2d at 774.

In our view, in order for the reviewing appellate court to be warranted in finding an abuse of discretion by the trial court in these cases it must demonstrate that the record contains no substantial evidence to support the conclusion of the trial court that the defendant is not entitled to probation or suspended sentence, giving due consideration to the criteria set out in the statute and decisions of this Court as appropriate for determining suitability for probation.

Those criteria are “. . . the circumstances of the offense, criminal record, social history, and present condition of the defendant,” T.C.A., § 40-2904; the physical and mental condition, where appropriate, of the defendant, Stiller v. State, supra; and the likelihood, or lack thereof, that probation will subserve the ends of justice and the best interests of both the public and the defendant, Hooper v. State, supra. The record should contain findings of fact of the trial judge respecting these criteria as well as his conclusions of law with respect thereto; otherwise, meaningful appellate review is not possible.

We have reviewed the evidence in this record, the findings of the trial judge with respect thereto, and his conclusion of law that the respondent was not entitled to a suspended sentence and have concluded that the Court of Criminal Appeals erred in holding that the trial court abused its discretion in denying suspension of the respondent’s sentence. In our opinion, the evidence would support either conclusion at the trial court level; in such a case it cannot be an abuse of discretion to decide the case either way. The appellate court is not authorized to substitute its judgment for that of the trial court when, as here, it is supported by evidence.

For instance, in considering the defendant’s “present condition” the evidence showed that he has acquired gainful employment since he committed the offense and has demonstrated a desire to improve himself. The defendant is a high school graduate and has demonstrated interest in learning a useful and rewarding skill by engaging in a six month course of welding instruction. He is 20 years of age and a young man of normal intelligence. Two separate probation reports in the record recommend that he be granted probation.

On the other hand, as a 17-year-old juvenile the defendant was convicted of assault and placed on probation for one year. Shortly after this probation terminated, he, as an 18-year-old adult, committed the burglary offense which brought about the present proceeding. The record also indicates that the defendant is the father of a child born out of wedlock whom he is helping to support. The record also showed that the trial court found the defendant to be less than honest in at least two particulars. Although he confessed his guilt at the time he entered a plea of guilty, he, nevertheless, testified at the second hearing of his petition for probation that he was in fact not guilty. Perhaps without intending to mislead the court, the defendant also testified that he “worked every day, a full eight hours,” whereas, he admitted on cross-examination that this was not the case and that he sometimes worked as little as 20 hours per week.

In our opinion, an impartial appraisal of the circumstances of the offense, the defendant’s criminal record, his social history, his present condition, and especially the fact that he committed the instant offense shortly after he had been on probation as a juvenile for a different offense, could lead one reasonably to conclude that the defendant is not a suitable subject for probation and that suspension of his sentence would not subserve the ends of justice and the best interests of society and the defendant. Accordingly, we hold that the Court of Criminal Appeals erred in concluding that the trial court had abused its discretion in denying the suspended sentence.

We, therefore, reverse the judgment of the Court of Criminal Appeals and affirm that of the trial court. Costs incurred in this Court are adjudged against the respondent.

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


author: HARBISON, Justice.

text:
    Kenneth L. FLEMING, Superintendent of Williamson County Schools and the Williamson County Board of Education, Appellants-Defendants, v. Jamie WADE, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    July 10, 1978.

      Thomas E. Fox, Franklin, for appellants-defendants.
    Donald P. Harris, Alexander, Hartzog, Harris & Silva, Franklin, for appellee-plain-tiff.
   OPINION

HARBISON, Justice.

This case arises under the Tennessee Teachers’ Tenure Act, §§ 49-1401 et seq.

Appellee was a tenured teacher in the Williamson County School System. The proceedings now under review began near the close of his third year as Principal of Fairview High School. Although it was not filed in evidence, we assume that he held a written contract as principal pursuant to the provisions of T.C.A. § 49-253. The record is meager as to his teaching experience, certification, or educational background. He testified that he had been in educational work for twenty-five years, but the nature and extent thereof are undeveloped in the testimony.

At its meeting of April 4, 1977, the Williamson County Board of Education received a list of written specifications against appellee, filed by the county superintendent of schools, seeking his removal as principal. A lengthy evidentiary hearing was held on the specifications on April 25, 1977, some three weeks after the charges had been filed with the Board. Appellee was present with counsel, testified, called witnesses and cross-examined witnesses offered by the superintendent in support of the charges.

A special adjourned meeting of the Board was held on the evening of May 2, 1977, at which the Board considered the evidence. By a substantial majority it voted in favor of a resolution to relieve appellee “as principal of Fairview High School . . ..” The record shows that appellee and his counsel were present at this meeting and had actual notice of the action taken.

Within less than thirty days thereafter appellee filed a petition for review of the action of the Board in Chancery Court, pursuant to T.C.A. § 49-1417. He challenged the legal sufficiency of the specifications made against him, of the evidence offered in support thereof, and the adequacy of both the notice and the hearing afforded him. He sought reinstatement and incidental relief. Appellants filed an answer denying the allegations of the petition.

Before trial of the ease the Chancellor remanded the action to the Board of Education for specific findings of fact. At a special meeting held on August 29,1977 the members of the Board voted on each separate item of the specifications. They found one of these to be unsupported by the evidence, but the majority sustained four charges of unprofessional conduct and two of insubordination.

As the record reached the Chancellor, it was unclear whether the Board had simply removed appellee as principal, or whether its action resulted in his entire severance from the school system, including his dismissal as a tenured teacher. No testimony was taken on the point. The record of the school board hearings was susceptible to the conclusion that the Board had discharged appellee as principal but had not terminated him as a tenured teacher. At the final hearing before the Chancellor, however, counsel for the appellants stipulated that the Board had undertaken to discharge ap-pellee both as principal and as a teacher.

The two positions, of course, are not identical. Dismissal of an individual as a school principal would not necessarily justify or require his termination as a tenured teacher. The Teachers’ Tenure Act defines in general terms conduct unbecoming members of the teaching profession and insubordination, T.C.A. § 49-1401(11) and (12). It does not specifically define the duties of a principal, and it provides that administrative and supervisory personnel in a school system

“. . . shall have tenure as teachers and not necessarily tenure in the specific type of position in which they may be employed.” T.C.A. § 49-1401(4).

The Act provides that transfers of teachers within a school system may be made only upon concurrent action of the superintendent and the Board, T.C.A. § 49-1411. Cases construing this provision have held that when persons are demoted or transferred to positions with lower compensation, notice, written charges and a hearing are necessary. See Gibson v. Butler, 484 S.W.2d 356 (Tenn.1972); Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130, 132 (1971).

The duties of a school principal are prescribed, in part at least, by statute, T.C.A. § 49-254, as follows:

“It shall be the duty of the principal:
“(a) To supervise the operation and management of the personnel and facilities of the school or schools of which he is principal as the local board of education shall determine.
“(b) To assume administrative responsibility and instructional leadership under the supervision of the superintendent and in accordance with the written policies of the local board of education for the planning, management, operation, and evaluation of the educational program of the schools to which assigned.
“(c) To submit recommendations to the local superintendent regarding the appointment, assignment, promotion, transfer, and dismissal of all personnel assigned to the school or schools under his care.
“(d) To perform such other duties as may be assigned by the superintendent pursuant to the written policies of the local board of education.
“(e) To observe all other rules and regulations relative to the operation of public schools as established by law and as contained in the rules, regulations and minimum standards of the state board of education.”

These statutes impose upon school principals administrative and supervisory duties which are separate and apart from those required of regular classroom teachers. Considerations of the fitness of an individual to carry out these duties, and of his effectiveness in this type of position, may be entirely different from those involved in determining whether he has been guilty of unprofessional conduct or insubordination in the role of a tenured teacher not having such added authority and responsibility. Unfortunately in this record, these distinctions have not been carefully observed.

At the hearing before the Chancellor, appellants relied upon the record of the School Board proceedings. Appellee offered some additional evidence, particularly as to the adequacy of the notice he received of the charges and as to alleged improper or political considerations given his case by the members of the Board of Education.

Reviewing the record made before the School Board, the Chancellor concluded that in general the hearing had been conducted properly, that constitutional due process had been accorded appellee, and that the members of the Board of Education had not acted arbitrarily, improperly or out of personal or political considerations. Nevertheless he dismissed the charges and reversed the action of the Board directing that ap-pellee be reinstated as principal of Fairview High School with full back pay, subject to offset by any amounts which he had earned in other employment. He found that most of the charges made against appellee by the superintendent were sustained by the evidence, but found that these were not legally sufficient to establish either unprofessional conduct or insubordination within the purview of T.C.A. § 49-1401(11) and (12).

Appellants have assigned errors to the action of the Chancellor, essentially contending that the written specifications were legally sufficient and that they were supported by the evidence.

We have carefully reviewed the transcript of the hearings before the Board of Education. We concur in the findings of the Chancellor that a proper evidentiary hearing was accorded to appellee upon adequate and ample written notice, and that the Board of Education acted properly and without personal bias or any improper influence or motive. We further concur in the findings of the Chancellor that the evidence against appellee was not sufficient to justify dismissal of a classroom teacher under the tenure statutes. However, we are unable to concur in his conclusion that it was not sufficient to justify the removal of appellee from his position as principal.

Most of the charges against appellee had to do with incidents of high temper, alleged threats or intimidation to members of his faculty, and criticism of or lack of cooperation with the superintendent of schools and his policies.

We are of the opinion that none of these incidents, individually or collectively, were sufficient to justify discharge of a regular tenured teacher. They were sufficient, however, to justify a reasonable fact-finding body in concluding that appellee at times demonstrated poor judgment, lack of cooperation with the superintendent, intemperate conduct, and absence of that degree of leadership to be expected from the principal of a fairly large high school. The evidence was conflicting, and diverse inferences could easily be drawn from it. We are unable to say that the evidence preponderates against the conclusion of the Board of Education that the appellee should be relieved of his duties as principal.

Many of the incidents reflected in the evidence involved personal differences between him and faculty members. Others revealed lack of understanding or unwillingness to implement policies of the school superintendent. The superintendent, by statute, is entitled to expect the cooperation and support of principals in the school system who, both in theory and in practice, are key figures in the orderly and efficient operation of the schools. The Board of Education and the superintendent must necessarily be accorded considerable discretion in the employment and retention of such personnel. A fair and impartial finder of fact could reasonably conclude that ap-pellee’s conduct was sufficiently subject to criticism and his performance was sufficiently unsatisfactory in the discharge of his duties as principal as to justify his removal from that position.

Accordingly we reverse the decision of the Chancellor insofar as it directs reinstatement of the appellee as Principal of Fairview High School. We affirm insofar as it holds unwarranted the dismissal of appellee as a tenured teacher. The cause will be remanded to the Chancery Court for further proceedings consistent herewith, including, if necessary, further consideration by the Chancellor and by the Board of Education as to the propriety of re-assignment of appellee to some other position and the fixing of any back pay to which he may be entitled.

We are aware that in certain of the reported cases in this state discharged principals and administrative personnel have been reinstated by court order to the position from which they were removed. See Gibson v. Butler, 484 S.W.2d 356 (Tenn.1972); Blair v. Mayo, 224 Tenn. 108, 450 S.W.2d 582 (1970). In these cases, however, either the personnel had not been given adequate notice and an administrative hearing, or there had not been concurrence between the school board and the superintendent. In the present case appellee was notified that the superintendent was seeking his removal as principal. After a full evidentiary hearing, the Board concurred in the superintendent’s recommendation. That the Board may have erroneously attempted also to terminate appellee as a tenured teacher does not, in our opinion, affect the validity of its action in removing him as principal.

Costs incident to the appeal will be equally divided between the parties. Costs accrued in the trial court will be assessed there.

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


author: PARROTT, Presiding Judge.

text:
    E. W. STINSON, Appellant, v. James R. POTTER et al., Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    April 5, 1978.
    Certiorari Denied by Supreme Court June 12, 1978.
    Courtney N. Pearre, of Fowler, Rown-tree, Fowler & Robertson, William J. Brown, Knoxville, for appellant.
    Charles B. Sexton, of Sexton, Sexton & Beaty, Oneida, for James R. Potter.
    Donald F. Paine of Egerton, McAfee, Armistead & Davis, P.C., Knoxville, for James Sandidge.
   OPINION

PARROTT, Presiding Judge.

Plaintiff is appealing the chancellor’s order granting defendants’ motion for summary judgment dismissing his action seeking payment of a real estate broker’s commission under a contract for the sale of defendants’ coal mining operation on the ground that plaintiff lacked a Tennessee real estate broker’s license.

The plaintiff assigns as error: (1) the chancellor’s failure to require proof that acts of solicitation and negotiation for the sale of defendants’ coal mining operation occurred in Tennessee, and (2) the chancellor’s order granting defendants’ motion for summary judgment based on plaintiff’s failure to have a real estate broker’s license when a coal mining operation is not real estate within the purview of the statute but involves the brokering of a going business.

The plaintiff, E. W. Stinson, is a Kentucky real estate broker licensed in Kentucky to deal in real estate transactions. On November 7, 1974, Mr. Stinson entered into a contract with the defendants, James and Margaret Potter, to sell their coal mining operation located in Tennessee which included all the assets of their corporation consisting of leases, coal mine, machinery, equipment, stock piled coal, management, supervision, and employees. The contract provided:

This agreement between E. W. Stinson and James Potter and wife, Margaret Potter, owners of 3775 Oneida Fuel and Coal Co. of Huntsville, Tenn., P.0. Box 138.
Mr. and Mrs. Potter are asking $600,-000.00 net to them for their deep coal mine operation in Scott Co. located on 0. D. Carroll land, and McKinley Lowe land.
E. W. Stinson is priceing (sic) the complete operation for $750,000.00 if he gets a buyer he receives all over $600,000.00 and in return he is to take care of Bob Draughn on a finders fee.

In an effort to locate a buyer for the Potters’ property, the plaintiff contacted the defendant, James Sandidge, a Kentucky attorney representing United Innkeepers, concerning the sale of the mining business and accompanied Mr. Sandidge to the site of the coal mining operation. According to Mr. Potter’s deposition, he understood from the plaintiff that he was to work with Mr. Sandidge on the sale of the property.

Mr. Sandidge negotiated the final purchase by United Innkeepers for $700,000.00. Under a contract with the Potters, San-didge received a $100,000.00 commission on the sale of the property. Mr. Potter admitted entering into an earlier contract to pay plaintiff a commission on the sale and stated that he did not know how the commission was to be divided between Stinson and Sandidge but assumed they would make that determination.

When the plaintiff negotiated the agreement with the Potters, he did not have a Tennessee Real Estate Broker License. Although he had applied for a license in October 1974 before entering into the contract, Mr. Stinson did not receive his license until January 1975, approximately one month after the completion of the sale between the Potters and United Innkeepers. After the plaintiff learned from a third party that the Potters had sold their coal mining operation to United Innkeepers and that Mr. San-didge had received a $100,000.00 commission, Mr. Stinson filed this action against . the Potters alléging breach of contract and against Mr. Sandidge alleging that he induced the Potters to breach the contract. The defendants filed a motion for summary judgment with various exhibits arguing that the plaintiff was not entitled to recover a broker’s commission on the sale of the defendants’ property because he was not a licensed real estate broker as required by T.C.A. 62-1301 et seq. The chancellor granted defendants’ motion for summary judgment because Mr. Stinson lacked a Tennessee real estate broker’s license and regarded as moot the plaintiff’s action against Sandidge. The plaintiff has appealed and assigns error to the chancellor’s finding.

The first assignment of error addresses the chancellor’s finding that the plaintiff, while in this state, solicited or negotiated the sale of defendants’ coal mining operation when the defendants presented no proof to support that conclusion. The plaintiff admits he did not have a Tennessee real estate broker’s license but insists that, the record contains no proof he committed any of the prohibited acts in this state. We do not agree. T.C.A. 62-1303 provides:

From and after July 1,1973, it shall be unlawful for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity of a real estate broker or affiliate broker, as defined herein within this state without first obtaining a license as such broker or affiliate broker, as provided in this chapter, unless exempted from obtaining a license under § 62-1307.

The defendants attached as exhibits to their motion for summary judgment portions of the depositions of Mr. Potter and Mr. Stin-son and the two commission contracts. There is sufficient proof from these documents and the pleadings filed by the plaintiff to show that Stinson performed as a real estate broker in this state without a license: (1) the contract between the Potters, Tennessee residents, and the plaintiff is for the sale of a coal mining operation located in Tennessee; (2) Stinson brought Sandidge to the operation site to examine the property for the purpose of locating a purchaser; and (3) Stinson alleges in his complaint that he was to receive a commission for negotiating the sale of defendants’ property. Plaintiff’s assignment of error of no evidence to conclude the prohibited conduct occurred in Tennessee is overruled.

The plaintiff next assigns as error the chancellor’s holding that the sale of a going business is within the purview of T.C.A. 62-1301 et seq. and requires a broker’s license. The plaintiff argues that the statute was not intended to include the sale of a coal mining operation and cannot be expanded beyond the legislative intent because of criminal sanctions imposed for its violation. Plaintiff cites authorities from other jurisdictions that consider this question and illustrate the following rules adopted by the courts in interpreting their particular state statutes: (1) the New York rule; (2) the New Jersey rule; (3) the Georgia rule; and (4) a modification of the Georgia rule.

The plaintiff argues that we should adopt the New York rule which provides that the sale of a going business does not come within the New York Real Estate Broker’s License Act. This rule was adopted in Weingast v. Rialto Pastry Shop, Inc., 243 N.Y. 113, 152 N.E. 693 (1926), where the plaintiff, a business broker engaged in the buying and selling of restaurants, entered into a contract with the Rialto Pastry Shop, Inc. to sell its restaurant including the store, lease, good will, tables and everything that was part of the business. The court based its decision on Section 440 of the New York Real Property Law which provides:

Whenever used in this article, “real estate broker” means any person, firm or corporation, who, for another and for a fee, commission or other valuable consideration, lists for sale, sells, exchanges, buys or rents, or offers or attempts to negotiate a sale, exchange, purchase or rental of an estate or interest in real estate, or collects or offers or attempts to collect rent for the use of real estate, or negotiates, or offers or attempts to negotiate, a loan secured or to be secured by a mortgage or other incumbrance upon or transfer of real estate.

The New York court concluded this statute was not broad enough to cover every situation where real estate or an interest in real estate is part of the transaction and held that the statute does not apply to an individual engaged in the buying and selling of going businesses even though such transactions may include the lease of a store or building.

One who makes a specialty of procuring purchasers for restaurants, drug stores, grocery stores, and the like as going concerns, where a lease simply goes with the place as a part of the good will, does not become, within this law, a real estate broker. .
He was not obliged to take out a license and was not barred from maintaining this action to recover his compensation if he had earned it. (Weingast v. Rialto Pastry Shop, Inc., supra at pp. 694-695)

The court found the sale of the going business was the dominant feature in the contract rather than the lease agreement and held, under New York law, that a real estate broker’s license was not required before the plaintiff could recover his commission.

Opposed to the foregoing rule is the so-called New Jersey rule enunciated in Kenney v. Paterson Milk & Cream Co., Inc., 110 N.J.L. 141, 164 A. 274, 88 A.L.R. 1416. Here, an unlicensed broker procured a customer to purchase lands, buildings, equipment, assets, and good will of a milk company with the plaintiff to receive a 3 percent commission on the purchase price. Under New Jersey law it is unlawful for a person to attempt to negotiate a sale of an interest in real estate without a license and any single act, transaction or sale constitutes engaging in business within the meaning of the Act. The court declared the amount of real estate involved in the transaction immaterial because of the broad language of the statute and, after considering the Wein-gast case, concluded that the New Jersey statute precludes the plaintiff’s action for his commission. The court found the contract for the sale of the milk company entire and within the statutory provision requiring a real estate broker to be licensed. The New Jersey court has been cited as stating this rule as follows:

If a contract be in its nature entire, and in one part it satisfies the statute, and in others does not, then it is altogether void. (Kenney v. Paterson Milk & Cream Co., Inc., supra, at 276.)

The third approach is illustrated by the Georgia rule which was established in More-land v. Kilgore, 83 Ga.App. 606, 64 S.E.2d 295 (1951), where the sale of a store included both realty and personalty. The defendant argues that the plaintiffs were not entitled to a commission on the sale because they failed to have a broker’s license as required by Georgia law. The court stated:

Even if it be conceded that the plaintiffs were not entitled to recovery of the commissions on the sale of the real estate, we find no law that would prevent the plaintiff recovering a commission for the sale of the personalty involved. (Moreland v. Kilgore, supra, at 297.)

The court allowed the plaintiffs to recover a commission on the personalty sold under the contract because the sale of personalty was not regulated by the statute requiring a license for the sale of real estate.

The fourth position is a modification of the Georgia rule. This approach permits a recovery of the commission on the personal property included in the sale if the contract is divisible, with separate commissions designated for personalty and realty. This rule is found in Marks v. Waiter G. McCarty Corp., 33 Cal.2d 814,205 P.2d 1025 (1949), where a hotel, its furniture and equipment were the subject of the sale. The defendant argued the contract was void under the Statute of Frauds because the party to be charged had not signed the contract. The court disallowed the commission on the sale of the land upon finding the contract failed to satisfy the Statute of Frauds but held there was no Statute of Frauds barrier to a recovery of plaintiff’s commission on the sale of personalty where the purchase price had been apportioned between the realty and personalty.

The determination of the necessity for a real estate broker’s license where the sale includes both real and personal property is usually held to depend upon the language of the particular statute under consideration. The authorities cited by the plaintiff are not controlling but are important as a guide to our interpretation of the scope of the Tennessee Real Estate Broker License Act. Since the plaintiff admits he was not licensed in Tennessee when he entered into the contract with the Potters and there is sufficient evidence to show that the plaintiff performed services as a real estate broker in this state, our final determination is whether the sale of a coal mining operation as a going business qualifies as a sale of real estate. After considering the approaches taken in other jurisdictions, we conclude that the language used in our Act is broad enough to include the sale of a going business and require a real estate broker to have a real estate license.

“Broker” is defined in T.C.A. 62-1302(b) as:

. any person who for a fee, commission, finders fee or any other valuable consideration, or with the intent or expectation of receiving the same from another, solicits, negotiates or attempts to solicit or negotiate the listing, sale, purchase, exchange, lease or option to buy, sell, rent, or exchange for any real estate or of the improvements thereon, collects rents or attempts to collect rents, auctions or offers to auction, or who advertises or holds himself out as engaged in any of the foregoing. .

“Real estate” includes “leaseholds, as well as any other interest or estate in land, whether corporeal, incorporeal, freehold or nonfreehold, and whether the real estate is situated in this state or elsewhere.” T.C.A. 62-1302(a). It is unlawful under T.C.A. 62-1303 “for any person, directly or indirectly, to engage in or conduct, or to advertise or hold himself out as engaging in or conducting the business, or acting in the capacity of a real estate broker or affiliate broker, as defined herein within this state without first obtaining a license as such broker or affiliate broker . . . .” Finally, T.C.A. 62-1308 provides that an individual cannot bring an action seeking compensation for rendering services prohibited by the Act unless that individual was licensed at or before the time of performing the services.

The statutory language used in T.C.A. 62-1302 is determinative of the issues in this case. The legislature obviously intended that the Real Estate Broker License Act should apply to all brokers involved in transactions resulting in the sale of real estate and has required strict compliance with the terms of the Act before a broker can use the courts to collect fees or commissions. The plaintiff’s commission contract for the sale of defendants’ coal mining operation fits within the category of a sale of any interest in land or improvements thereon. We therefore conclude that the plaintiff is not entitled to receive a commission on the sale of defendants’ coal mining operation because: (1) the sale of a going business including an interest in real estate is within the broad language used in our Act; (2) the plaintiff did not have a Tennessee real estate broker’s license while negotiating the sale of defendants’ property in this state; and (3) the contract entered into by the plaintiff and the Potters is not divisible, the commission being the total amount received in excess of $600,000.00.

The chancellor’s order granting the defendants’ motion for summary judgment is affirmed with costs taxed to the appellant.

SANDERS and GODDARD, JJ., concur.


author: WALKER, Judge.

text:
    William S. HART, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 9, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.

      Joe C. Davis, Carthel L. Smith, Jr., Lexington, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Robert B. Smith, Asst. Dist. Atty. Gen., Savannah, Billy C. Blow, Asst. Dist. Atty. Gen., McLemoresville, for appellee.
   OPINION

WALKER, Judge.

In his trial under two indictments, the appellant, William S. Hart, Jr., was acquitted of possession of a firearm in the commission of a felony but was convicted of possession of marijuana with intent to sell and sentenced to one to three years in the penitentiary. On his appeal he contends that (1) the court erred in the admission of evidence taken from his automobile by a warrantless search, and (2) the court also erred in permitting him to be cross-examined about a prior conviction for the sale of marijuana. We find both assignments to be without merit.

In his challenge to the admissibility of the evidence of marijuana, scales and other items taken from his car, the appellant contends that he was unlawfully stopped because (1) there was no probable cause to believe that he was speeding, as alleged by officers, and (2) the stop was a subterfuge to search his vehicle for drugs.

At a hearing outside the presence of the jury, at which the appellant did not testify or offer any evidence, the trial court found the stop lawful and the evidence admissible. Huntingdon Police Officer Geurin testified that on the night of March 10, 1977, he noticed the appellant’s car leaving the vicinity of the court square at a high rate of speed in a 30-mile zone, that he turned on his blue lights and pursued the appellant for about half a mile before the appellant stopped. Although Officer Geurin’s dash lights were out and he could not see his speedometer, both he and Officer Sawyers, who followed in another vehicle, thought that the appellant was traveling in excess of the speed limit.

Officer Geurin approached the open window of the appellant’s vehicle and, while inquiring if the appellant knew the speed limit, Geurin smelled marijuana coming from the car. After asking the appellant and his passenger to get out of the car, the officer observed several bags lying on the floorboard or under the front seat. One of the bags contained three-fourths of an ounce of marijuana, small scales, a pistol and other articles.

The trial judge held that the arrest here was predicated on a justified stopping of the vehicle for a traffic violation and that the officers had probable cause to search the vehicle after detecting the odor of marijuana. The appellant argues that the stop was a mere subterfuge to search the vehicle because the officer could not “clock” his vehicle and because the officer later charged him with reckless driving, a charge that had not been disposed of by the time of his trial and conviction on these charges. Although the appellant was not cited for speeding, this does not compel the conclusion that there was no probable cause to stop the appellant on that ground. The trial judge correctly found the stop lawful. It follows that the officers’ search of the vehicle was proper, based upon the independent probable cause ground of the marijuana odor. State v. Hughes, 544 S.W.2d 99 (Tenn.1976); Hicks v. State, 534 S.W.2d 872 (Tenn.Crim.App.1975).

Testifying in his own behalf, the appellant denied knowing that any contraband was in his automobile. His evidence suggests that it could have been left there by some other person and that it was in his car by mistake or accident. At a hearing outside the presence of the jury, the trial judge overruled his objection to the state’s cross-examining him about his guilty plea to a prior charge of possessing marijuana with intent to sell. The trial judge admitted this evidence solely on the appellant’s credibility, relying on State v. Morgan, 541 S.W.2d 385 (Tenn.1976). He held that the probative value of this interrogation about the prior conviction outweighed its prejudicial effect. He followed the rule in State v. Morgan, supra, and we find no abuse of his discretion.

Affirmed.

DAUGHTREY, J., and ARTHUR C. FA-QUIN, Jr., Special Judge, concur.