author: HENRY, Justice.

text:
    Joan Adkins FARRAR, Petitioner, v. James T. FARRAR, Respondent.
    Supreme Court of Tennessee.
    July 25, 1977.

      J. Travis Price, Springfield, Frank J. Runyon, Runyon & Runyon, Clarksville, for petitioner.
    Collier Goodlett, Jr., Goodlett, Peay & Hurt, Clarksville, for respondent.
   HENRY, Justice.

This divorce action raises two questions: (1) the sufficiency of the evidence to support the decree and (2) whether proof of adultery may form the basis of a divorce grounded on a charge of cruel and inhuman treatment. The trial judge dismissed the husband’s complaint and awarded the petitioner (wife) a divorce, under her counterclaim, on the grounds of cruel and inhuman treatment. The Court of Appeals reversed, holding that the award of divorce was not justified by the pleadings and the proof. We granted certiorari to examine the correctness of this holding.

I.

Dr. James T. Farrar filed his complaint seeking an absolute divorce on the grounds of cruel and inhuman treatment. His wife filed her answer and counterclaim (designated as a cross-complaint), generally denying the allegations of the complaint and seeking a divorce from bed and board upon the grounds of cruel and inhuman treatment.

On motion for a more specific statement, Joan Farrar amended her counterclaim on January 9, 1975. In this amendment she alleged inter alia that Dr. Farrar “has been keeping open and notorious company” with another woman. Dr. Farrar moved under Rule 12.05, Tenn.R. of Civ.P., for a more definite statement. Pursuant to this motion, and the order of the trial judge, on February 27, 1975, she filed a second amendment to her counterclaim. In this pleading she named the woman, Judy Johnson, and alleged that Dr. Farrar had taken trips with her, “even going to places outside the State”; that this relationship was “much closer than society accepts”; that he has been a frequent visitor at her residence; that they have eaten evening meals together on a number of occasions; and that they “have stayed in motel rooms for many hours at a time during late night hours, if not in fact all night.”

These pleadings contain no specific charges of adultery, but merely allege this open and continuous association with Judy Johnson as one of the details of her charge of cruel and inhuman treatment. Still another motion was made for a more definite statement and on April 4,1975, Joan Farrar filed her third amendment specifying trips by Dr. Farrar and Judy Johnson to San Francisco and Canada, an evening meal at the Hearth Restaurant in Nashville, a tryst at the Downtowner in Nashville, and a trip to St. Louis. No answer was filed to this amendment.

II.

We precede our very limited discussion of the proof by recognizing the correct standard of review. Divorce actions are reviewable under Sec. 27-303, T.C.A., which means that they are accompanied by a presumption of the correctness of the action of the trier of fact unless the evidence preponderates against the same. Greene v. Greene, 43 Tenn.App. 411, 309 S.W.2d 403 (1957). Every intendment is in favor of the correctness of the decree of the trial court. Chappell v. Chappell, 37 Tenn.App. 242, 261 S.W.2d 824 (1952).

The testimony of Joan Farrar and that of her witnesses does not fully support the charges contained in her pleadings. The testimony of Dr. Farrar is quite another story.

He fully confirms Joan Farrar’s testimony that on November 5, 1973, upon returning from a trip to Atlanta, he advised her that he wanted out; that the marriage was over; and that he wanted a divorce. He asked her to bring suit. Mrs. Farrar’s testimony corroborated the Doctor. She testified to her disbelief and shock when he advised her that he wanted a divorce and to her dismay at his advice, which, in her own words, was as follows:

He told me if I would give him his freedom to take everything he had, just free him, and go out and find myself a man and move to Nashville and get my job back; that he didn’t need me any more, and it was a good feeling.

Dr. Farrar admitted to the specifics of a continuing affair with Judy Johnson. He admitted to having spent one or more nights with her in Nashville, sleeping in the same bed; to having been to the Down-towner Motel with her; and to having stayed in her room at night for four or five hours at a time.

He admitted that he took Judy with him to Banff Springs, British Columbia, in the Canadian Rockies, to attend a sexual hypnosis seminar. Dr. Farrar is a radiologist. His interest in sexual hypnosis is not explained in the record. At any rate, he and Judy registered together and stayed in the same room. En route they shared a hotel room in San Francisco. On another occasion she accompanied him to St. Louis, where he registered at the Chase Park Plaza and she “was in and out.”

Notwithstanding having spent numerous nights with Judy in several states and Canada, the Doctor denies that they ever had sexual relations. Dr. Farrar was born on Washington’s birthday in 1936. He was thirty-nine or forty years of age at the time of these escapades. The trial judge obviously was not impressed with his innocence abroad or at home, and his testimony, no doubt, placed a severe strain upon his patience and forbearance.

The record is somewhat meager as to other extra-marital affairs; but it does show, by the Doctor’s testimony, that he had not spent the night with anyone else, “other than a pick-up at the bar or something like that”; but, he says, this happened “rarely.” He admits to being registered at a Ramada Inn with another woman but does not know her name.

Cruel and inhuman treatment has been defined in various ways and in numerous eases. Further definition is unnecessary. Suffice it to say we cannot conceive of any stronger case of cruel and inhuman treatment than a persistent pattern of adulterous conduct. Nor may it be excused on the basis of a spouse not having contemporaneous knowledge of its occurrence. The hurt, the humiliation, the shame, the wounded pride, the rejection are the same whether the knowledge comes before, during or after the fact. Adultery is rarely perpetrated openly and in the daylight. By its very nature its commission is normally not discovered until the act has been consummated. No man, set upon a pattern of adulterous conduct, willingly furnishes proof of his own turpitude.

We hold that there was ample evidence of cruel and inhuman treatment in this case. We further hold that proof of adultery is admissible in a divorce action charging cruel and inhuman treatment and may form the basis for a decree resting upon cruel and inhuman treatment.

Indeed, we note an emerging trend to de-scandalize divorce proceedings. The whole purpose of the legislature in enacting recent amendments to Sec. 36-805, T.C.A., was to avoid the insertion of scurrilous matter in divorce bills, with the result that the section now requires that the original pleading “shall set forth the grounds for the divorce in substantially the language of the statute,” etc., with the right reserved to the defendant to demand a bill of particulars. See also Rule 12.05, Tenn.R.Civ.P.

A further indication of this trend is Chapter 107 of the Public Acts of 1977, adding irreconcilable difference as a ground of divorce.

We find nothing in reason, logic or precedent which would, or should, preclude a trial judge from granting a divorce on the grounds of cruel and inhuman treatment when the evidence establishes adultery, so long as the parties are fully apprised in advance of the nature of the proof. Indeed, a decent regard for posterity suggests that divorces, except as a last resort, should not be bottomed on adultery.

We expressly recognize the rule that normally the uncorroborated admissions or confessions of a guilty party will not support a divorce decree. See Baber v. Baber, 205 Tenn. 681, 330 S.W.2d 307 (1959). Public policy demands that this be the general rule; and we declare it to be, except where collusion or coercion are clearly negated. There is not the slightest suggestion of collusion or coercion in this case.

We point out that a secondary purpose of the requirement of statutory ' specificity in divorce actions is to alert the defending spouse to the nature of the charge in order that proper defense may be made. Here, by virtue of motions for a more specific pleading, three amendments to the counterclaim were filed. While adultery was not alleged in haee verba, a clear charge of adultery was made. Moreover, this was the major issue tried by the parties. Under these circumstances Rule 15.02, Tenn.R.Civ.P., comes into play and we may treat this issue as being “tried by express or implied consent of the parties ... as if they had been raised in the pleadings.” It is arguable that counterclaimant should have moved to amend her countercomplaint to conform the pleading to the proof. While this would have been better practice, the failure to do so does not preclude this Court from deciding the issue the parties tried in the Court below.

We agree with Judge Drowota’s dissent: Although it may be said that the majority opinion is technically correct, I do not feel that it can be said that substantial justice has been accomplished by denying the parties a divorce. No useful purpose can be served by dismissing this case and requiring the appellee to institute a new suit, alleging adultery and desertion and relitigating the issues anew.

We point out that no children were born of this marriage. We fully recognize that considerations of public policy demand that the institution of marriage be sheltered and safeguarded. But there is an obverse side to the coin of public policy and consideration must be given to the fact that society is ill-served by a legally commanded continuance of a marriage which exists in name only. We quote from the opinion of the late Chief Justice Grafton Green, in Lingner v. Lingner, 165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933):

As pointed out by another court, we must take into consideration “the mischiefs arising from turning out into the world, in enforced celibacy, persons who are neither married nor unmarried.” (Citation omitted.) Society is not interested in perpetuating a status out of which no good can come and from which harm may result.

(Emphasis supplied.)

We affirm the action of the trial court in awarding an absolute divorce under the counterclaim.

III.

Dr. Farrar assigned as error in the Court of Appeals the trial court’s decree 24 May, 1976, ordering him to pay to his wife’s attorneys a fee of $5,000.00 for their representation on the appeal to the Court of Appeals, in addition to the fees previously ordered.

The technical record in this cause was filed in the Court of Appeals on May 18, 1976. The Court of Appeals held that this order was not a part of the record. In connection with this holding it noted from the photostatic copy of the order of May 18, 1976, that it was filed in the trial court on June 1, 1976, certified by the clerk on June 1,1976, and filed with the Court of Appeals on June 2, 1976. Under these circumstances the Court of Appeals held that there was no appeal from this order and “the assignment of error in reference thereto cannot be considered and is overruled.”

Dr. Farrar has filed in this Court a petition for the writ of certiorari aimed solely at this portion of the holding of the Court of Appeals.

The record shows that on 24 May, 1976, six days after the technical record was filed in the Court of Appeals, Judge Thomas A. Shriver, on motion, remanded the case to the trial court “to set an award of alimony pending the appeal and to award an amount for the appellee’s attorney regarding said appeal. . . . ”

It was in response to this order on remand that the May 24, 1976, (signed May 26, 1976, and entered June 1, 1976), order was entered and certified to the Court of Appeals. Under these circumstances this order was properly before the Court, notwithstanding the fact that no appeal therefrom was prayed. The sole purpose of the remand was for the fixing of attorneys’ fees. Certainly the amount so fixed, and certified, is a legitimate issue on appeal.

We remand this case to the Court of Appeals for consideration of respondent’s assignment number 9 in that Court. On remand consideration will also be given to assignments 3, 6, 7 and 8, in the Court of Appeals, relating to attorneys’ fees, property division and alimony, all of which were pretermitted'by the opinion of that Court.

Pending the further action of the Court of Appeals, all orders and decrees of the trial court will remain in effect, including restraining and support orders. Any ar-rearage in the monthly payments decreed by the trial court will be promptly settled and, pending the final outcome of this controversy, said payments will be made in accordance with the prior orders of the trial court.

Nothing in this opinion shall be construed to preclude an award to petitioner’s counsel of attorney’s fees for service rendered on this appeal to this Court and in connection with the proceedings on remand.

Reversed and remanded.

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

      . See Ch. 46. Acts of 1957: Ch. 50. Acts of 1971.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    STATE of Tennessee ex rel. Arnold BROWN et al., Appellants, v. James C. BATES et al., Appellees.
    Supreme Court of Tennessee.
    July 25, 1977.

      George E. Barrett, Barrett, Brandt & Barrett, Nashville, for appellants.
    R. A. Ashley, Jr., Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Charles W. Bone, Gallatin, Charles Hampton White, Nashville, for appellees.
   OPINION

BROCK, Justice.

In this suit the relators, as citizens and freeholders of Sumner County, seek to oust from their offices as Justices of the Peace the defendants, Billy S. Hobbs, George R. Offitt, and Pat L. Webb, alleging that they are in violation of T.C.A., § 49-217, by virtue of their employment by the Sumner County Board of Education as, in the case of Hobbs, principal of a school, in the ease of Offitt, assistant principal of a school, and in the case of Webb, a teacher. Plaintiffs also seek to enjoin the defendants, as members of the Quarterly County Court of Sumner County, from paying themselves compensation as prescribed by T.C.A., § 5-507, upon the grounds that the statute is in violation of art. I, § 8, of the Constitution of Tennessee.

The Attorney General of Tennessee, as defendant, filed a motion for summary judgment and the other defendants filed motions to dismiss the complaint for failure to state a claim on which relief can be granted. The grounds of these motions were that the contracts of defendants, Hobbs, Offitt and Webb, with the Sumner County Board of Education are not prohibited by T.C.A., § 49-217, and, therefore, that no ground for ouster of these defendants from their offices as Justices of the Peace was alleged; and, that insofar as plaintiffs seek to have T.C.A., § 5-507, declared unconstitutional, the plaintiffs failed to allege any facts sufficient to give them standing to make such a challenge, since they allege no special injury or interest different from that of other citizens of Sumner County. The trial judge sustained the “motions of the defendants” and dismissed the action and the plaintiffs have appealed. The order of the trial court was based upon its conclusion that the complaint failed to allege any grounds for ouster and that no constitutional infirmity in T.C.A., § 5-507, had been shown.

I

We agree that no grounds for ousting the defendants has been alleged. This issue is controlled by the recent decision of this Court in State ex rel. Finger v. Kidd, Tenn., 534 S.W.2d 309 (1976) in which it was held (1) that a supervisor of instruction in the county schools was a “teacher” ithin the exception contained in T.C.A., § 49-217, and (2) that, aside from the exception, a justice of the peace concurrently employed by a county board of education as a teacher was not in violation of the conflict of interest statute, T.C.A., § 49-217, since his teaching contract was not with his own board, i. e., county court, but with the county board of education, a separate entity. See also State ex rel. Boles v. Groce, 152 Tenn. 566, 280 S.W. 27 (1925). We said in Kidd:

“We agree with the Chancellor that a supervisor of instruction, with duties as described above, is a teacher within the ambit of T.C.A. 49-217 and is competent to serve both as a teacher and a member of a quarterly county court. See T.C.A. 49-1401. But more importantly, under the evidence in this record we see no material conflict between the appellee’s service for the County Board of Education and his service as a member of the quarterly county court, even if appellee could not be classed as a teacher.”

We reaffirm that holding and are of the opinion that it controls with respect to defendants Hobbs, Offitt and Webb in the case at bar. There could be no doubt that the exception covers Webb who is alleged to be a teacher. It is equally clear that defendant Hobbs, who is a principal, and defendant Offitt, who is an assistant principal, are also teachers within the meaning of the definition contained in T.C.A., § 49-1401, and, thus, are covered by the exception as we held in Kidd. Furthermore, as was held in Kidd and in the Groce case, supra, the contracts of these three defendants with the County Board of Education does not constitute a violation or come within the terms of the prohibition stated in T.C.A., § 49-217, which provides:

“No member of the local board of education or the quarterly county court shall take or make, as the adverse party, any contract which his board is competent to make . . . (Emphasis added.)

This is true because their contract of employment is not with the Quarterly Court but with the County Board of Education which is a separate entity separate and apart from the County Court. Thus, their contracts as teachers and principals are not ones which “his board is competent to make.”

II

The plaintiffs further argue that the exception of teachers from the prohibition of T.C.A., § 49-217, amounts to a discrimination which violates art. XI, § 8, of the Constitution of Tennessee. We are convinced, however, that the classification thus created is reasonable and, therefore, permissible under the constitutional provision cited. Chattanooga v. Harris, 223 Tenn. 51, 57, 442 S.W.2d 602, 604 (1969). As this Court said in Harris, “class legislation whose classification is natural and reasonable is constitutional and valid . . . .” More importantly, as held by this Court in the Kidd and Groce cases, supra, the so-called “exception” is not truly an exception but merely a declaratory statement explanatory of the scope of the prohibition contained in T.C.A., § 49-217. In other words, a member of the county court who contracts with the county board of education is not entering into a contract “which his board is competent to make”; therefore, to state that such a contract is not prohibited by the statute is not to state an exception but to merely give an explanation which is obviously redundant.

Ill

The argument of the plaintiffs that T.C.A., § 5-507, violates art. I, § 8, of the Constitution of Tennessee because of alleged vagueness and indefiniteness is likewise without merit. The statute provides:

“The several quarterly county courts are authorized to fix the compensation of their membership in attending sessions of the quarterly county court and duly authorized committees thereof. The counties are hereby classified in congruity with § 8-2402, and the compensation fixed by the quarterly county court for attending sessions of the court shall in no case be less than the applicable amount reflected herein below:
(Amounts ranging from $20 to $35 per day, depending ■ upon the size of the county, are then stated.)
“The amount provided in this section or a greater amount provided by resolution duly adopted by the quarterly county court shall be paid to the justices of the peace for each day’s attendance at meetings of the court or any duly authorized committee thereof.
“The compensation fixed by the quarterly county court for attending duly authorized committee meetings of such court shall be one-half (½) the compensation paid for attending regular sessions of the court.”

We fail to discern any vagueness or indefiniteness in this statute nor have the plaintiffs pointed out any. The burden of their argument is that the legislature should have fixed a maximum compensation in addition to the minimum compensation. This was a matter solely within the discretion of the legislature, rather than of this Court. Certainly matters of much greater moment than that here involved are left solely to the discretion of the quarterly county court as the legislative body for the county.

We find no error in the decree of the trial court and it is, therefore, affirmed. Costs of the appeal are taxed against the appellants and sureties.

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


text:
    UNIVERSAL UNDERWRITERS INSURANCE CO., Appellant, v. A. J. KING LUMBER COMPANY and James Sutton, Appellees.
    Supreme Court of Tennessee.
    July 25, 1977.
    Hunter Smith, Davis, Norris, Treadway & Hadden, Kingsport, for appellant.
    James F. Pryor, Knoxville, Tenn., for ap-pellees.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case. The Chancellor awarded benefits and the employer’s insurer appeals.

Appellant contends that the statute of limitations of one year had run before suit was filed. The plaintiff, employee, was injured twice on the job, first on June 20, 1971, and again on November 1, 1971, and this suit was not filed until November 14, 1974. However, in the interim between the first injury and the filing of suit the employer and its insurer voluntarily provided medical services to the plaintiff and paid to him benefits for temporary total disability continually from November 16, 1971, to June 18, 1974. Therefore, the running of the limitations period was tolled pursuant to the provisions of T.C.A., § 50-1003, that:

The furnishing of medical services by a physician employed by the employer or insurer is such a “voluntary payment of compensation.” Reed v. Genesco, Inc., Tenn., 512 S.W.2d 1 (1974); Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340 (1967). The fact that no “payments” were made from November 16, 1971, the date of the first payment, until January 21, 1973, when they were resumed did not constitute a “ceasing” within the meaning of the statutory proviso. Nothing said by us in Union Carbide Corp., Food Products Div., et al. v. Cannon, Tenn., 523 S.W.2d 360 (1975) was intended to be to the contrary. Although in most cases such voluntary payments will be made at intervals of less than one year, there is no requirement in the statutory proviso that they be more frequent than one year. The trial court was correct in holding that the statute of limitations had not run.

The appellant insists that plaintiff’s injury and disability was restricted to his hand and that the Chancellor erred in awarding benefits for a disability of the arm. We find no error in this regard. Both injuries were to the right wrist. Surgery was performed three times on the wrist and it was finally “fused” and made stiff. Since the fusion, the plaintiff is unable to rotate his arm so that the palm of the hand faces the floor. Dr. Bell, the treating physician, estimated plaintiff’s disability as 40 per cent to the hand or 36 per cent to the arm. The Chancellor made a finding based upon all of the evidence, including his observation of the plaintiff, of 100 per cent permanent disability of the right arm. There is evidence to support that finding and we affirm it. Cf. Federal Copper & Aluminum Co. v. Wright, Tenn., 504 S.W.2d 957 (1974).

The statute, T.C.A., § 50-1004, as it existed at the time of plaintiff’s accident and injury, did not obligate the employer to furnish medical treatment for longer than the two years period immediately following the notice of injury. However, as held in Fields v. Lowe Furniture Corp., supra, the employer may, by express or implied contract with the physician or hospital, become obligated to pay for medical treatment of an employee beyond the requirements of the statute. This appears to be the situation here, but the record is not clear in this regard, one way or the other, so that, a remand to the trial court on this point will be necessary. Upon the remand, the trial court will receive evidence and determine whether the disputed medical expenses, viz., a balance of $2,144.00 owing to Dr. Bell, $716.00 owed to Ft. Sanders Hospital, $96.00 owed to Knoxville Anesthesia Group, and $5.00 owed to Drs. Craven, Guyton and Moore or any part thereof, were incurred before or after November 1, 1973. Appellant must be held liable for any such expenses incurred before November 1, 1973. If said expenses, or any portion thereof, were incurred after November 1, 1973, the appellant will not be liable therefor, unless appellant or the employer, appellee, by express or implied contract with the physician or hospital creditors became obligated thereby to pay such expenses.

The decree of the chancery court, except the portion thereof awarding recovery for the disputed medical expenses above discussed, is affirmed. This cause will be remanded to the trial court for further proceedings as herein directed. Costs of appeal are taxed against appellant.

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


text:
    NORTON COMPANY and Liberty Mutual Insurance Company, Appellants, v. William E. COFFIN, Appellee.
    Supreme Court of Tennessee.
    July 25, 1977.
    Thomas, Leitner, Mann, Warner & Owens, Chattanooga, for appellants.
    Walter L. Lusk, Lusk, Smith & Heck, Chattanooga, for appellee.
   OPINION

BROCK, Justice.

This is a workmen’s compensation case.

The employer, Norton Company, and its insurer, Liberty Mutual Insurance Company, appeal from the decree of the trial court awarding benefits to the employee. We are to determine whether or not the trial court erred in concluding that the action was not barred by the one year statute of limitations, T.C.A., § 50-1003, and that the plaintiff, employee, had complied with the notice requirements of T.C.A., § 50-1001.

Plaintiff was, at all times material to this case, the manager of Norton Company’s plant in Chattanooga and was its highest ranking official there. His superiors were in Ohio. Liberty Mutual insured Norton’s workmen’s compensation liability.

Mr. Coffin, plaintiff, received an injury by accident arising out of and in the course of his employment on April 23, 1970, when he “hopped down” from a 32" wall onto a concrete slab floor while inspecting a construction project on the employer’s plant property in Chattanooga. He immediately felt a sharp pain in his left hip but did not consider it to be of any serious moment. He was bothered by pain in the hip area off and on, and sought the aid of a chiropractor on June 5,1970, who diagnosed his problem as a recurrence of a “whiplash” injury suffered about ten years earlier. He continued to be treated by the chiropractor for about six months until, finally, on June 8,1971, he sought the aid of Dr. Shelton and Dr. Frye, orthopedic surgeons in Chattanooga. From them he learned that he had suffered a hairline fracture of the head of the left femur in the episode of April 23, 1970, which had resulted in avascular necrosis of the left hip joint. These physicians had the plaintiff to enter a hospital and to undergo traction and other therapy there from July 25, 1971, to July 30,1971. He was required to use crutches from the time of his release from the hospital until October 5,1973.

Plaintiff was regularly treated by Drs. Shelton and Frye from June 8, 1971, until the time of trial of this case in 1976. However, he continued to perform his duties until the employer terminated his employment on January 18, 1974. He filed this suit on May 13, 1974, more than four years after the accident of April 23, 1970.

The applicable statute is T.C.A., § 50-1003, which provides:

“Limitation of time. — The right to compensation under the Workmen’s Compensation Law shall be forever barred, unless within one (1) year after the accident resulting in injury or death occurred the notice required by § 50-1002 is given the employer and a claim for compensation under the provisions of this law is filed with the tribunal having jurisdiction to hear and determine the matter; provided that, if within said one (1) year period voluntary payments of compensation are paid to the injured person or his dependents, an action to recover any unpaid portion of the compensation, payable under this law, may be instituted within one (1) year from the time the employer shall cease making such payments, except in those cases provided for by § 50-1024.”

Important gloss has been added to the statute by decisions of this Court, two of which are particularly pertinent here, viz., Imperial Shirt Corp. v. Jenkins, 217 Tenn. 602, 399 S.W.2d 757 (1966) and Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340 (1967).

Imperial Shirt is the first of several decisions establishing the rule that the running of the statute of limitations is suspended until by reasonable care and diligence it is discoverable and apparent that an injury compensable under the workmen’s compensation laws has been sustained. Accord Murray Ohio Manufacturing Co. v. Vines, Tenn., 498 S.W.2d 897 (1973); Union Carbide Corp., Food Products Div. v. Cannon, Tenn., 523 S.W.2d 360 (1975).

Fields holds that “voluntary payments of compensation” by the employer or his insurer which will toll the running of the statute of limitations under the savings proviso of the statute may consist of the furnishing of medical services through physicians or others employed by the employer or his insurer and that, in such cases, the statute will not begin to run until such medical services are terminated, i. e., the date of the last services thus furnished, rather than the date of payment for such services.

Applying the statute as thus interpreted, we hold that the trial court was correct in concluding that this action is not barred by the statute of limitations. We do not agree with his conclusion that defendants are precluded from relying upon the limitations statute by reason of equitable estoppel; but, we do conclude that the evidence shows that the one year period of limitations had not run prior to the filing of this suit.

First, we find adequate evidence, above stated, to support the finding of the trial court that the statute did not begin to run until June 8, 1971, when plaintiff first “discovered” within the rule of Imperial Shirt, supra, that he had suffered a com-pensable injury in the accident of April 23, 1970.

The evidence further shows that within one year of plaintiff’s discovery of injury the defendants made “voluntary payments of compensation” which tolled the running of the statute under the savings proviso of T.C.A., § 50-1003. Thus, on July 19, 1971, the insurer, Liberty Mutual, paid Dr. Frye $51.00 for services to plaintiff; on September 9, 1971, Liberty Mutual paid $289.50 to Erlanger Hospital for services rendered in treatment of plaintiff’s injury. Then, on November 17,1971, Liberty Mutual wrote a letter to Drs. Shelton and Frye whereby the insurer not only ratified plaintiff’s employment of those physicians up to that point, but went further and employed them on its own account to render future medical services in the treatment of plaintiff’s injury until completion. That letter was addressed to Dr. Frye and is as follows:

“Re: William E. Coffin — Norton Co. C 553/30123
“Dear Doctor:
“We enclose Surgeon’s Report and Bill Forms on the above-named case. Kindly send us your preliminary report, using the Surgeon’s Report Form, by return mail. The Bill Form is for your convenience and should be sent in at the time the patient is discharged from further treatment.
“Your cooperation in sending a report by return mail will assist us in giving prompt attention to the patient’s case.
Very truly yours,
Patricia Domingue (s)
Claims Department”

Pursuant to the arrangement thus made, Drs. Shelton and Frye rendered treatment to plaintiff on January 21, 1972, February 29, 1972, May 2, 1972, August 7, 1972, December 22, 1972, April 3,1973, July 3, 1973, October 5,1973, January 29,1974 and April 25, 1974. Furthermore, Liberty Mutual requested and received from Drs. Frye and Shelton periodic written reports of their treatment of plaintiff which were rendered on February 2,1972, May 3,1972, August 8, 1972, April 5, 1973, October 11, 1973 and January 15, 1974.

We are of the opinion that this evidence furnishes adequate support for the conclusion that the defendants furnished medical services (made voluntary payments of compensation) to the plaintiff employee, beginning on July 19, 1971, and continuing through April 25, 1974, only three weeks prior to the filing of this action. Accordingly, we hold that under the savings proviso of T.C.A., § 50-1003, as construed in Fields, supra, the running of the statute was effectively tolled until April 25, 1974, the date of the last medical services furnished by the defendants prior to trial.

The trial court found that the employee had complied with the notice requirements of T.C.A., § 50-1001, and, we conclude that there is evidence to support that finding. Thus, there is evidence to show that the insurer, Liberty Mutual, and Mr. Tarnakey, plaintiff’s superior in Ohio, received actual knowledge of the accident and injury within thirty (30) days after June 8, 1971. Under the peculiar circumstances of this case, that was sufficient.

The decree of the trial court is affirmed, with interest and costs taxed against appellants.

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

      . If payment or reimbursement by the employer of medical expenses incurred by the employee on his own account are relied upon as tolling the statute, our cases have held that the statute begins to run on the date of the last of such payments. Chandler v. Travelers Ins. Co., 212 Tenn. 199, 369 S.W.2d 390 (1963); City of Bristol v. Reed, 218 Tenn. 173, 402 S.W.2d 124 (1966), rather than the date of the last treatment.


author: MATHERNE, Judge.

text:
    Ray ROBERTSON and Jim Stockton, Appellants, v. James E. LYONS and William George, Individually and d/b/a Lyons & George Cotton Company, Appellees.
    Court of Appeals of Tennessee, Western Section.
    March 2, 1977.
    Certiorari Denied by Supreme Court July 5, 1977.

      J. Kimbrough Johnson, Thomason, Crawford & Hendrix, Memphis, for appellants.
    W. Lee Whitman, Whitman, Liss & Moore, Memphis, for appellees.
   MATHERNE, Judge.

The plaintiffs, farmers and residents of the State of Missouri, sue to recover damages sustained due to the breach of alleged contracts they entered into with the defendants whereby the defendants agreed to purchase the plaintiffs’ 1974 cotton crops for the price of 65 cents per pound.

The trial judge, sitting without a jury, held for the defendants and dismissed the plaintiffs’ lawsuit. The plaintiffs appeal, claiming error in the entry of judgment for the defendants.

I.

The plaintiffs testified that in January, 1974 they were approached by Wade Lee who inquired of them whether they planned to sell their 1974 cotton crop. The plaintiffs told Wade Lee that they would sell the 1974 crops at the price of 65 cents per pound. Wade Lee produced printed form contracts and presented them to the plaintiffs. These contracts had only the name “Lyons & George Cotton Company” stamped on them in the blank which designated the “buyer” and at the end of the instrument where signatures were to be affixed. Wade Lee had written in another blank “Price of cotton at 65 cents pound.” According to the plaintiffs, the foregoing constituted the only entries on the printed forms when they signed the contracts. The plaintiff Robertson agreed to sell all cotton raised on a certain 150 acres of land lying in Butler County, Missouri. The plaintiff Stockton agreed to sell all cotton produced on a certain 60 acres of land lying in Butler County, Missouri. The parties further agreed on the time within which the crop would be harvested (December 15, 1974) and the price reduction for failure to meet certain standards of measurement and for the presence of grass or bark.

Lee departed with the contracts as signed by the plaintiffs. According to the plaintiffs, he returned four days later and presented them with the contracts they had signed. The contracts now contained all the terms of the agreement plus the following handwritten statement: “$1.00 B/C commission to Wade Lee.” The returned contracts had been signed “James E. Lyons, Agent Broker.” The buyer under the contract was designated “Lyons & George Cotton Company, Agent Broker.” Lee left with each plaintiff a copy of his respective contract and again departed. It is not clear how many copies of the contracts were signed by the parties, but apparently there were more than one because the signed copy presented by Lyons & George at the trial did not have the words “$1.00 B/C commission to Wade Lee” written thereon.

The testimony of the defendant Lyons varies somewhat on the question of which of the parties first signed the contract. Wade Lee did not testify, and there is no showing that he was more available to either party. As we view the lawsuit, it matters not which party signed the contracts first. There is no denial that the contracts were eventually signed by all parties and that the contracts contain the full agreement made between Wade Lee and the plaintiffs. The lawsuit turns on the relationships between the parties to the contract and Wade Lee.

In October, 1974, the plaintiff Robertson telephoned Lyons at Memphis concerning the contract. The testimony conflicts as to what was said in that conversation. Robertson claims that Lyons assured him the contracts would be honored, even though at that time some buyers were repudiating similar contracts with other farmers. Lyons claims he told Robertson that he, Lyons, was not buying any cotton and that Robertson would have to contact Wade Lee.

On December 10, 1974, at Memphis, the plaintiffs tendered to Lyons & George the warehouse receipts and government green cards on each bale of cotton they had produced under the contracts. Lyons and George refused to honor the contracts. The plaintiffs sold the cotton and brought this lawsuit to recover as damages the difference between the contract price and what they received for the cotton.

Lyons and George insist that in these transactions Wade Lee was the agent of the plaintiffs-sellers. The defendants claim that Wade Lee, as the plaintiffs’ agent, did not return their signed copy of the contract to them until late February or early March, 1974. Lyons testified that he told Wade Lee at that time that the contracts were not acceptable because the price of cotton had dropped substantially since Lyons and George signed the contracts in early January, 1974. He said that Wade Lee stated to him that he, Lee, would take care of the matter. Lyons stated that he thereupon filed his copy of the contracts and did not contact the plaintiffs-sellers.

Lyons and George further insist that Wade Lee changed the terms of the contracts by inserting in the copy left with the plaintiffs the words: “$1.00 B/C commission to Wade Lee.” The plaintiffs admit that the words were written in the contracts when the contracts were returned to them. The plaintiffs said they agreed to pay that commission, even though it was not included in the oral contract at the time they signed the instruments.

Lyons and George also insist that their firm was acting as an agent broker and that the contracts were agreements for them to buy for some other person. They argue that, due to Lee’s delay in returning the contracts, they could not broker the cotton because of the drop in price.

II.

We fail to find the relationship of principal and agent between the plaintiffs-farmers and Wade Lee. Lee’s past relationship with the plaintiffs consisted of two dealings with Robertson in the sale of his cotton since 1971. In 1972 Lee helped Stockton sell some cotton. There is no showing that the plaintiffs-farmers agreed for Lee to be their agent, and there is no showing that Lee held himself out to the defendants as the agent of the plaintiffs-farmers. Agency must be proved by the party asserting it. Testerman v. Home Beneficial Life Ins. Co. (Tenn.App.1974) 524 S.W.2d 664. The defendants have failed to establish that relationship between Wade Lee and the plaintiffs.

In his discovery deposition, the defendant Lyons stated that the relationship between the partnership of Lyons and George with Wade Lee was that of a joint account. This relationship was explained to be an agreement that Wade Lee would “(s)plit with us as partners 50-50 on the profit,” and “(h)e would equally share in the loss.” At the trial the defendant Lyons was very evasive concerning the joint venture with Wade Lee. He stated that he did not know what the relationship was between the Lyons and George partnership and Wade Lee. He did admit, however, that he had discussed with Wade Lee the proposition of buying cotton on joint account for December 1974 delivery. He further admitted that Wade Lee had contracts signed by Lyons for the purpose of buying cotton from various farmers.

The defendant George testified that Wade Lee misled Lyons and George and also misled the plaintiffs-farmers. This defendant said that Lyons agreed with Wade Lee to contract cotton “on a commission basis and then, one time, it was on a joint account basis, and I really don’t know what the true agreement was.”

Contrary to the defendants’ assertions, the evidence establishes that Lyons and George entered into a joint venture with Wade Lee to purchase cotton for December, 1974 delivery.

In Spencer Kellogg & Sons, Inc. v. Lobban (1958) 204 Tenn. 79, 315 S.W.2d 514, the Court recognized the definition of joint venture set out at 30 Am.Jur., p. 939, as follows:

“A joint venture is an' association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, but without creating a partnership in the legal or technical sense of the term, or a corporation, and they agree that there shall be a community of interest among them as to the purpose of the understanding, and that each coadventurer shall stand in the relation of principal, as well as agent, as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the adventure.”

Each of the several joint venturers has the power to bind the others and to subject them to liability to third persons in matters which are strictly within the scope of the joint enterprise. 46 Am.Jur.2d Joint Ventures § 57 (1969).

The contracts’ designation of Lyons & George Cotton Company as “Agent Broker” and Lyons’s signature on the contracts as Agent Broker do not render the partnership an agent broker. The nature of the contract and the conduct of the parties in the particular transaction will govern their relationship regardless of words which might indicate the contrary. Compare United States v. Boyd (1962) 211 Tenn. 139, 363 S.W.2d 193, aff’d. 378 U.S. 39, 84 S.Ct. 1518, 12 L.Ed.2d 713. The defendant George testified by discovery deposition as follows:

Q. Mr. George, if you were buying this cotton for somebody else, you would have had their name on the contract, right?
A. Yes.
******
Q. If you were buying it for yourself, then you would put your name on the contract?
A. That is true.
******
Q. The contracts by Stockton and Robinson (SIC), between Stockton and Robinson (SIC) and Lyons & George Cotton Company, indicate that Lyons & George Cotton Company was buying this cotton. Is that right?
A. That is true.
Q. Rather than your buying it for Duna-vant or Hohenberg or somebody else?
A. True.

On the issue that the defendants were acting as agent brokers for a commission on sales effected by them for a third party, the defendant Lyons by discovery deposition testified as follows:

Q. And are these two documents (the contracts sued upon) your understanding of what the agreement was to be as far as selling the cotton for 65 cents?
A. Yes, what I thought it was to be, right.
Q. And you thought that you were to split with Wade Lee .
A. Profit and/or loss.
Q. . profit and/or loss?
A. Right.
Q. If you were selling the cotton on a commission basis, there wouldn’t be any loss, would there?
A. That’s right.
Q. So what you really contemplated doing was having the cotton and then doing whatever was best at the time, right? If you could sell it for five cents a pound more, you would do it that way; if you could make more by selling it on a commission basis, you would do it that way. Isn’t that right?
A. That’s right.

We conclude that the defendants, by their testimony, refute the argument that in the transactions under consideration they were acting as agent broker for a third party buyer of the cotton.

We conclude that Wade Lee had the authority to contract with the plaintiffs-farmers on behalf of his co-adventurers Lyons and George. If Wade Lee delayed the return of the contracts to Lyons and George, any loss sustained by that failure to act promptly in the best interest of the joint venture must be borne by the joint-adventurers. If Wade Lee inserted the term “$1.00 B/C commission to Wade Lee,” that alteration of the contract after it had been signed by Lyons does not void the contract. The $1.00 per bale commission would have inured to the benefit of the joint-adventure.

It results that the plaintiffs are entitled to judgment in the amount of the difference between the contract price and the price received for the cotton after the breach of the contract by the defendants. Based upon that measure of damages, the record reveals that the plaintiff Ray Robertson is entitled to judgment against the defendants in the amount of $5,618.82. The plaintiff Jim Stockton is entitled to judgment against the defendants in the amount of $4,272.26. Each judgment will bear interest at the rate of 8 per cent per annum from June 28, 1976, the date of entry of judgment in the trial court. T.C.A. §§ 47-14-101, 47-14-110. All costs in the trial court and in this Court are adjudged against the defendants. The judgment of the trial court is reversed and judgment shall be accordingly entered in this Court.

CARNEY, P. J., and NEARN, J., concur.


author: PER CURIAM.

text:
    HADEN COMPANY, INC., Petitioner, v. JOHNS-MANVILLE SALES CORPORATION, Respondent.
    No. B-6486.
    Supreme Court of Texas.
    March 9, 1977.
    Rehearing Denied April 20, 1977.
    Vial, Hamilton, Koch, Tubb, Knox & Stradly, James H. Baumgartner, Dallas, for petitioner.
    Coke & Coke, Thomas W. Craddock, Dallas, for respondent.
   PER CURIAM.

This is a venue case. Haden Company sued Johns-Manville Sales Corporation in Wichita County, alleging breach of implied warranty of fitness on asbestos panels sold to Haden Company by Johns-Manville. The asbestos panels, which were ordered, paid for, and delivered to Haden Company in Dallas County, proved unsatisfactory after they were installed by Haden Company in a Wichita County hospital. Johns-Manville, an Illinois corporation, filed its plea of privilege to be sued in Dallas County, where its principal office is situated. The trial judge overruled the plea of privilege, relying upon subdivision 27 of Article 1995. Subdivision 27 provides that venue as against a foreign corporation may be maintained “in any county where the cause of action or a part thereof accrued.” The court of civil appeals reversed, holding that the only “portion” of Haden Company’s cause of action which “accrued” in Wichita County was the sus-tentation of damages by Haden Company, and that damages alone is not a “part of the cause of action” within the meaning of subdivision 27. 543 S.W.2d 415.

This Court has jurisdiction because of a conflict between the court of civil appeals’ decision in the present case and the holding in Teague Brick Sales Company v. Dewey, 355 S.W.2d 249 (Tex.Civ.App.—Amarillo 1962, no writ). In that case venue was held proper in the county in which bricks manufactured by defendant “began to crumble and chip” after being placed in plaintiff’s home.

We agree with the holding in the present case. In accordance with Rule 483, Texas Rules of Civil Procedure, the application for writ of error is refused, no reversible error.


author: STEAKLEY, Justice.

text:
    U-ANCHOR ADVERTISING, INC., Petitioner, v. N. H. BURT, d/b/a Granot Lodge, Respondent.
    No. B-6516.
    Supreme Court of Texas.
    July 13, 1977.
    Rehearing Denied July 27, 1977.

      B. Hal Miner, Amarillo, for petitioner.
    Kenneth A. Back, Amarillo, for respondent.
   STEAKLEY, Justice.

This is a suit for breach of contract. It was instituted in the 47th District Court of Potter County, Texas by U-Anchor Advertising, Inc., Petitioner, against N. H. Burt, doing business as Granot Lodge, Respondent. U-Anchor is a Texas corporation domiciled in Amarillo, Potter County, Texas. Burt is a resident of Clinton, Custer County, Oklahoma. Citation was served upon the Secretary of State of Texas as the presumed agent of Burt for service of process pursuant to Article 2031b, Tex.Rev.Civ. Stat.Ann., the Texas “long-arm” statute. Burt entered a special appearance to contest the jurisdiction of the Texas court pursuant to Rule 120a of the Texas Rules of Civil Procedure. The trial court sustained Burt’s Motion to the Jurisdiction, and this was affirmed by the Court of Civil Appeals. It was the view of the court that while Burt was unquestionably doing business in Texas within the terms of Article 2031b, his contacts with Texas fell short of the requirements of due process. 544 S.W.2d 500. We affirm the judgment of the Court of Civil Appeals.

Certain additional facts bearing upon the question of jurisdiction appear undisputed. The written contract upon which suit was brought was executed by the parties in Clinton, Oklahoma. It resulted from solicitation by a salesman for U-Anchor who signed the contract for U-Anchor. The contract called for U-Anchor to place five advertising displays for Burt at various Oklahoma highway locations for a period of 36 months. Burt agreed to pay U-Anchor $80 monthly at its office in Amarillo, Potter County, Texas. U-Anchor constructed the signs in Amarillo and erected them at the Oklahoma locations. Burt mailed six and perhaps seven monthly payment checks to U-Anchor at its office in Amarillo, but he had no other contacts with Texas.

The controlling provisions of Sections 3 and 4 of Article 2031b are as follows:

Sec. 3. Any . . . non-resident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such . . . non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, wherein such . . non-resident natural person is a party or is to be made a party.
Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any . non-resident natural person shall be deemed doing business in this State by entering into contracts by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, . . . (Italics are added for emphasis).

Article 2031b provides that a nonresident entering into a contract with a Texas resident performable in part by either party in Texas shall be deemed to be doing business in Texas. The contract in question obligated Burt to perform his payment obligations at the office of U-Anchor in Amarillo, Texas, and thus he was “doing business” in Texas within the meaning of the statute. We agree that in this respect, as well as with respect to “other acts that may constitute doing business,” Article 2031b reaches as far as the federal constitutional requirements of due process will permit. We let stand the statement in Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.) “that the reach of Art. 2031b is limited only by the United States Constitution.” See also National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.). The federal courts have similarly construed Article 2031b. See Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974), and the cases there cited. Furthermore, such a construction is desirable in that it allows the courts to focus on the constitutional limitations of due process rather than to engage in technical and abstruse attempts to consistently define “doing business.” See Thode, In Personam Jurisdiction; Article 2031b, the Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Tex.L.Rev. 279, 307 (1964).

The question, then, becomes one of due process. In Cousteau, supra, the Fifth Circuit concluded that the relevant federal decisions established a dual test for determining whether a court may exercise its jurisdiction without depriving a non-resident defendant of due process of law: “First, ‘there must be some minimum contact with the state which results from an affirmative act of the defendant.’ Secondly, ‘it must be fair and reasonable to require the defendant to come into the state and defend the action.’ ” Cousteau, supra, at 494. See also Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); 2 J. Moore, Moore’s Federal Practice ¶ 4.25[5] (1975). In O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966), this Court recognized the following statement of the three basic elements that must exist to sustain jurisdiction over a non-resident:

(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

See Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245 (1963). It is evident that U-Anchor’s cause of action against Burt is connected with the contractual obligation assumed by Burt and partially performable in Texas. However, Burt must also have purposefully done some act or consummated some transaction in Texas, and the assumption of jurisdiction by the Texas courts must be found not to offend traditional notions of fair play and substantial justice.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Supreme Court admonished that it would be “a mistake” to assume that the liberal due process standard enunciated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), “heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.” Hanson, supra, 357 U.S. at 251, 78 S.Ct. at 1238. Explaining the requirements of due process, the Court continued:

The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. [Emphasis added].

Id. at 253, 78 S.Ct. at 1239. See Shaffer v. Heitner, - U.S. -, -, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). In the instant case the contacts of Burt with Texas are minimal and fortuitous, and he cannot be said to have “purposefully” conducted activities within the State. Burt’s contacts with Texas were not grounded on any expectation or necessity of invoking the benefits and protections of Texas law, nor were they designed to result in profit from a business transaction undertaken in Texas. The contract was solicited, negotiated, and consummated in Oklahoma, and Burt did nothing to indicate or to support an inference of any purpose to exercise the privilege of doing business in Texas. Simply stated, Burt was a passive customer of a Texas corporation who neither sought, initiated, nor profited from his single and fortuitous contact with Texas.

Furthermore, in the instant case the exercise of jurisdiction by Texas courts would offend traditional notions of fair play and substantial justice. As noted above, the only contact of Burt with Texas consisted of his execution of a contract stipulating that certain payments were to be made in Amarillo and his remittance of several payments to U-Anchor in Amarillo. Thus the quality, nature, and extent of Burt’s activity in Texas is minimal. Indeed, it can be said that Burt has engaged in no “activity” in Texas, his only “activity” being the preparation and mailing of checks from his place of business in Oklahoma. Resolution of the question of the relative convenience of the parties results in a stalemate since it is no doubt more convenient to each party to litigate in his home state. However, since the contract was solicited, negotiated, and consummated in Oklahoma, Burt might reasonably expect its enforcement to be governed by Oklahoma law. Considering the basic equities and circumstances of the case, we hold that Burt would not be accorded due process of law if required to defend the suit of U-Anchor in Texas. See Hoppenfeld v. Crook, supra; Sun-X International Company v. Witt, 413 S.W.2d 761 (Tex.Civ.App.—Texarkana 1967, writ ref’d n. r. e.).

Numerous decisions of the Texas courts of civil appeals hold that on the facts there presented the non-resident defendant would not be denied due process by being subjected to suit in Texas. With one exception, those cases are distinguishable on their facts. For example, in National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.), the defendant had been doing business in Texas through its subsidiary, Transystems, Inc. When the subsidiary became delinquent on its accounts, Aero agreed to guarantee the debts of Transystems, executed a guaranty agreement, and mailed it to National Truckers Service in Fort Worth. In reliance on this guaranty agreement, National Truckers continued to extend credit to Transystems. The guaranty agreement provided that payment would be made in Fort Worth and that the guaranty itself was performable at Fort Worth. Subsequently Transystems became delinquent on its accounts, and National Truckers filed suit in Texas to enforce the guaranty agreement. The Court of Civil Appeals held the contacts of Aero with Texas were sufficient to justify the assertion of in per-sonam jurisdiction by the Texas courts, and we found no reversible error in that holding. Of significance in that case was the fact that Aero voluntarily and purposefully agreed to guarantee the Texas debts of its Texas subsidiary. Aero should reasonably have expected to face suit in the Texas courts in the event its subsidiary defaulted on its obligations.

In Uvalde Rock Asphalt Company v. Consolidated Carpet Corporation, 457 S.W.2d 649 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.), the contract forming the basis of the business relationship was solicited in Arizona by a Texas manufacturer. All debts were payable in San Antonio, Texas. Pursuant to the contract, the Arizona wholesaler placed several orders with the Texas manufacturer. The goods were delivered F.O.B. Houston, and on some orders the Arizona wholesaler requested delivery to Texas retailers. The Court of Civil Appeals concluded that the activity of the Arizona wholesaler was calculated to extract profits from markets in Texas. This factor, coupled with the additional contacts enumerated above, was sufficient to supply the “minimum contacts” demanded by due process.

Estes Packing Company v. Kadish and Milman Beef Co., 530 S.W.2d 622 (Tex.Civ.App.—Fort Worth 1975, no writ), did not reach this Court. In that case a Chicago broker ordered beef from a Fort Worth packing company and resold it to a Massachusetts corporation. The broker sent both parties written confirmations of sale giving shipping instructions stating the beef was to be delivered by truck to the defendant’s plant in Boston. The shipper was an independent contractor unrelated to either the Texas seller or the Boston buyer. The shipment was accompanied by an invoice stating the meat was offered for sale at the prices quoted on the invoice. The invoice also provided “All Bills Payable in Fort Worth.” Kadish sent a check to Estes covering a portion of the shipment and noted on the back of the check that it was in full payment of all debts of Kadish to Estes. Estes refused to accept the check with that notation and subsequently filed suit. The Court of Civil Appeals concluded that these facts established the existence of a contract between Kadish and Estes. Further, the court held that due process would not be violated by the exercise of jurisdiction over Kadish even though Kadish’s only contact with Texas was the remittance of one check to the Texas seller. This holding conflicts with our holding in the instant case and is disapproved.

The facts of this case bring it within the literal reach of Art. 2031b, but, as detailed above, the due process clause of the Fourteenth Amendment prohibits Texas courts from exercising jurisdiction over Burt in a suit arising out of his contract with U-Anchor. The nature and extent of the contacts of a non-resident with the forum state determine whether or not the forum may exercise in personam jurisdiction over the non-resident, but the infinite variety of such contacts and the vagueness of the constitutional standard render a more definitive articulation of due process requirements impossible. As noted in Cousteau, supra, no one formulation of the constitutional test could possibly encompass all the potentially important factors, nor could a formula perform the crucial task of weighing and balancing the relevant considerations. Narrow factual distinctions will often suffice to swing the due process pendulum. Here, as elsewhere, important constitutional questions prove immune to solution by checklist. See Annot., 20 A.L.R.3rd 1201 (1968); Thode, supra; Kurland, The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts — From Pennoyer to Denckla: A Review, 25 U.Chi.L.Rev. 569 (1958); Comment, The Texas Long-Arm Statute, Article 2031b: A New Process Is Due, 30 Sw.L.J. 747 (1976); Comment, Long-Arm and Quasi in Rem Jurisdiction and the Fundamental Test of Fairness, 69 U.Mich.L.Rev. 300 (1970); Note, 34 U.La.L.Rev. 691 (1974).

The judgment of the Court of Civil Appeals is affirmed.

      . It may be noted that in 1975 Rule 108 of the Texas Rules of Civil Procedure was amended to add the words shown in italics:
      A defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalty as if he had been personally served with citation within the State to the full extent that he may be required to appear and answer under the Constitution of the United States in an action either in rem or in person-am.

      We stated that the purpose of the amendment is to permit acquisition of in personam jurisdiction to the constitutional limits.


author:
ROBERTS, Judge.
      DOUGLAS, Judge,

text:
    Edward Eugene CRADDOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 52027.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    John J. C. O’Shea, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Charles C. Bailey, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

We granted appellant’s motion for leave to file his motion for rehearing in order that we may revise the reasoning behind the disposition of his main contention on original submission.

By per curiam opinion, Tex.Cr.App., 552 S.W.2d 854, delivered November 10, 1976 (No. 52,027), we affirmed appellant’s conviction for possession of marihuana. In so doing, we stated that:

“Appellant’s main contention is that the trial court erred in overruling his motion to suppress the evidence because there was neither probable cause nor exigent circumstances justifying the war-rantless search of appellant’s vehicle. We find it unnecessary to determine the legality of the search.
“Appellant voluntarily testified and admitted possession of the marihuana and he was to receive a commission for its sale. His testimony rendered harmless any error in the admission of the evidence. The legality of a search need not be considered when appellant testifies to or otherwise produces evidence of the same facts, or if such facts are in the record without objection. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974).”

Appellant had taken the stand in order to establish his defense of entrapment. He contends on rehearing that our disposition of his contention that the search and seizure were illegal “. . . fosters an impermissible and unconstitutional chill upon Appellant’s rights to author and draft his own defense . . . .” We agree.

The general rule that the legality of a search need not be considered when the defendant testifies to or otherwise produces evidence of the same facts is correctly stated in the opinion on original submission. However, there is another rule which is applicable: The harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy or explain it by the introduction of rebutting evidence. Nicholas v. State, 502 S.W.2d 169, 174 (Tex.Cr.App.1973, opinion on State’s Motion for Rehearing).

In Nicholas, we distinguished the two rules:

“. . . the improper admission of evidence over objection is rendered harmless by the unobjected-to admission of other evidence of substantially the same facts; whereas, the introduction of evidence seeking to meet, destroy, or explain the erroneously admitted evidence does not render the error harmless. The rationale should be equally clear: if a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proved without objection. On the other hand, presentation of other evidence which does not prove those facts erroneously admitted, but only tends to meet, destroy, or explain the erroneously admitted evidence, can hardly be considered to cure the error within the rationale of the first rule. Not falling within the harmless error rationale, if such rebuttal evidence is to be held to constitute a waiver of objection to the erroneously admitted evidence, some other reason must be advanced which would support such a new rule.
“The true meaning of such new rule would be that a defendant against whom evidence has been admitted over objection could not attempt to rebut such evidence without waiving that objection. The absurdity of such a rule, when so expressed as to reveal its ultimate effect, is manifest. That the scope of such a rule would extend so far is clear: use of admitted evidence, including exhibits, includes within its meaning use in a hypothetical form as a predicate to rebuttal. Mere use would necessarily include all such rebuttal, and if use waives objection, how can rebuttal be attempted and objection, preserved? Independent admission of evidence of the same facts without objection, it will be observed, is a concept wholly distinct from use, in that it is independent of the erroneous admission of evidence, whereas the use is dependent upon the prior evidence, inasmuch as it is an attempt to rebut it.” (Emphasis included). Id., at 174-175.

We feel appellant’s admitted possession of the marihuana was a necessary predicate to his defense of entrapment, thus bringing his testimony within our reasoning in Nicholas. See also, Alvarez v. State, 511 S.W.2d 493, 498 (Tex.Cr.App.1973, Opinion on State’s Second Motion for Rehearing). It is necessary to determine the legality of the search. We now do so.

Appellant contends that the war-rantless search of his vehicle was without probable cause and absent exigent circumstances. As stated on original submission, the facts are:

“In June of 1974, Otis Ray Priestley and appellant were both employed at a Lubbock automobile dealership. Priestley, a paid informant of the Lubbock Drug Task Force, consisting of State and Federal officers, was told that appellant could arrange a sale of marihuana. They discussed such a sale several times. An agreement was reached on July 2. Priestley arranged for Officers Hudgens and Douglas of the Drug Enforcement Agency to meet with appellant. Later the same afternoon Priestley and the two officers went to appellant’s home. Negotiations were conducted there concerning the price of fifty to sixty pounds of marihuana. They agreed to conduct further negotiations at a local motel later that evening.
“Hudgens and appellant met at the motel at 9:00 p. m. Bruce McCarter and his girlfriend, Cathy Robinson, were also present.
“Meanwhile, Douglas and Priestley had returned to the Drug Enforcement Agency office to obtain the money. They prepared fifty-three hundred dollars in marked bills and took it to a parking lot at the intersection of 34th Street and Avenue H. At 9:30 p. m., Hudgens, McCarter and appellant met with Douglas and Priestley in the parking lot. Appellant and McCarter inspected the money. They agreed to meet at 10:30 p. m. the same evening at 82nd Street and Indiana Avenue to conclude the transaction. Hudgens then met with several other officers and related the previous events to them. He gave them a description of the vehicle in which the marihuana was to be transported. Officer Myres, who had observed all of the negotiations at a distance, and other officers went to 82nd and Indiana at 10:30 p. m. where they saw appellant and McCarter in a parked vehicle. After verifying that the description of appellant’s vehicle matched the one provided by Hudgens, the officers detained the two suspects. A search of the vehicle yielded fifty pounds of marihuana. Appellant and McCarter were then arrested.”

In order to justify a warrantless search, the State must show the existence of probable cause at the time the search is made and the existence of circumstances which made the procuring of a warrant impracticable. Reed v. State, 522 S.W.2d 916, 917 (Tex.Cr.App.1975). Probable cause exists where the facts within the knowledge of the officer on the scene and those of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the evidence pertaining to a crime. Id.

We feel that there was probable cause to search the appellant’s vehicle. The question then remains whether, under the circumstances here presented, it was incumbent upon the officers to seize the vehicle, seek out a magistrate, obtain a search warrant and carry out a search pursuant thereto. This was the same question in Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976). Quoting from Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969), we stated that:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatablé question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

We conclude that the search of appellant’s vehicle was not “unreasonable” within the meaning of Art. 1, Sec. 9 of the Constitution of this State or the Fourth Amendment of the United States Constitution. The court did not err in admitting the results of the search, the marihuana, into evidence.

The other contentions raised by the appellant in his motion for rehearing have been considered and are found to be without merit.

The appellant’s motion for rehearing is overruled.

DOUGLAS, Judge,

concurring opinion on appellant’s motion for rehearing.

A majority now holds that when appellant took the stand to establish a defense of entrapment his testimony that he possessed the marihuana could not be used against him.

What the majority overlooks is that for there to be the defense of entrapment necessarily assumes that the act was committed. Canales v. State, 496 S.W.2d 614 (Tex.Cr.App.1973). If no offense was committed, an accused would not have been entrapped in doing anything. The accused cannot deny the commission of an offense and then claim entrapment. Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975); Zamora v. State, 508 S.W.2d 819 (Tex.Cr.App.1974); Canales v. States, supra; Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972); Godin v. State, 441 S.W.2d 196 (Tex.Cr.App.1969). When he admits the offense was committed, the question of the search goes out of the case.

When we get to the point where an accused takes the stand and admits the offense and then permit him to question the proof of the offense, we are going too far. If an accused thinks error was committed in admitting evidence obtained as a result of an arrest or search, he can appeal.

I concur for different reasons that appellant’s motion for rehearing should be overruled.


author: KEITH, Justice.

text:
    Herman VICKERS, Appellant, v. Lillian VICKERS, Appellee.
    No. 7973.
    Court of Civil Appeals of Texas, Beaumont.
    June 2, 1977.

      Ronald L. Walker, Beaumont, for appellant.
    Lynn Walker, Beaumont, for appellee.
   KEITH, Justice.

This appeal involves the construction of a divorce decree. The parties were husband and wife until the entry of a divorce decree in 1972. The husband, our defendant/appellant, was petitioner and his lawyer negotiated a settlement of the community property rights of the parties but our plaintiff/appellee was not represented by counsel. The decree disposed of all of the property rights of the parties and the parties signed each page of the original judgment signifying their agreement thereto.

The trial court, in the divorce decree, set aside the family homestead to the wife and ordered the husband to continue the payment of all indebtedness and taxes due thereon as accrued and ordered him to pay all utility bills, exclusive of long distance tolls, so long as the wife occupied the property as her home. It was further provided that if the property was sold, the proceeds would belong to the wife.

The husband, after making all of the payments required of him for more than three years, stopped paying in December, 1975, after he had extinguished the purchase money lien on the home. He answered the wife’s suit for the utility bills by a general denial but did not testify on the hearing or offer any testimony in rebuttal to the wife’s testimony supporting his breach of the covenants contained in the judgment. At the conclusion of the hearing, the trial court entered judgment in favor of the wife for the gross amount of the unpaid utility bills and husband has appealed.

The appeal is based upon two points of error: (1) the decree is vague and ambiguous and does not clearly advise either party of their obligations; and (2) the requirement that the husband make periodic payments to the wife constitutes permanent and post-judgment alimony in contravention of Texas law. We disagree on both counts and affirm the judgment.

As held in Schwartz v. Jefferson, 520 S.W.2d 881, 887 (Tex.1975): “Property adjudications in a divorce decree become final the same as in other judgments relating to title and possession of property”, and the judgment in the case at bar had long since become final by operation of law. The judgment was and is immune from this collateral attack. Peddicord v. Peddicord, 522 S.W.2d 236, 269 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.). See also, J. McKnight, “Family Law, Annual Survey of Texas Law”, 30 Sw.L.J. 68, 86 (1976); and D. Fullenweider & D. Feldman, “Domestic Relations Judgments”, 18 S.Tex.L.J. 1, 18-14 (1977).

Notwithstanding the rule forbidding collateral attacks upon such agreed or consent judgments, we recognize that the rights and obligations of the parties to such judgments are governed “largely by the rules relating to contracts.” Hutchings v. Bates, 406 S.W.2d 419, 420 (Tex.1966).

But, we hasten to note that the parties lived under the agreed judgment and the husband had no difficulty in ascertaining his obligations for more than three years. Many years ago, our Supreme Court said, in Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, 508 (1942):

“The practical construction placed upon a contract by the parties themselves constitutes the highest evidence of their intention that whatever was done by them in the performance of the contract was done under its terms as they understood and intended same should be done.”

So it is in the case at bar. The husband knew what was required of him so long as he chose to perform; his belated claim of ambiguity after three years of performance is utterly without merit.

Moreover, as noted earlier, the husband answered only with a general denial and had no affirmative defenses included in his answer. The claim of ambiguity in a contract must be raised by the pleadings, and in the absence of such a pleading the court will not hear .evidence as to the intention of the parties which is different from that expressed in the contract. Pickering v. First Pyramid Life Ins. Co. of America, 491 S.W.2d 184, 185 (Tex.Civ.App.—Beaumont 1973, writ ref’d n.r.e.), and authorities therein cited. See also, Bernard v. L. S. S. Corporation, 532 S.W.2d 409, 411 (Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.).

It is significant, too, that the husband did not testify upon the trial. Professor McCormick says, 1 Texas Law of Evidence § 102 at 140 (2d Ed. 1956): “In civil cases the failure of one of the parties to an action to testify raises a strong presumption against him.” Thus, in the case at bar, the husband not only failed to plead ambiguity in the judgment, he failed to offer any evidence in support of such contention. Point one is overruled.

The husband contends, in his second point, that the requirement that he continue the payments of the utilities, etc., constitutes permanent alimony. Again, we disagree and overrule such point.

At the time of the entry of the divorce decree, the parties owned, in addition to the homestead, a business known as “L & H Oilfield Service”, the net profit of which, during the year preceding the divorce, was approximately $26,000. This business, along with its assets, was set aside to the husband as his separate property since it was, in the language of the decree, “presently in his or her possession.”

In the leading case of Francis v. Francis, 412 S.W.2d 29, 33 (Tex.1967), our Supreme Court held that “obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State.”

Nor are we impressed by husband’s reliance upon the so-called “referability test” as set out in Gent v. Gmenier, 435 S.W.2d 293, 294-295 (Tex.Civ.App.—Waco 1968, no writ). Gent was harmonized with many other cases on the subject by Justice McKay in Miller v. Miller, 463 S.W.2d 477, 479 (Tex.Civ.App.—Tyler 1971, writ ref’d n.r.e.), which we find to be in accord with our views. Indeed, the agreement under consideration is much like that considered and held valid in Cornell v. Cornell, 413 S.W.2d 385 (Tex.1967). See also, Republic National Bank v. Beaird, 475 S.W.2d 344 (Tex.Civ.App.—Beaumont 1971, writ ref’d); Griffin v. Griffin, 535 S.W.2d 42, 43 (Tex.Civ.App.—Austin 1976, no writ). Point two is overruled.

The judgment of the trial court is affirmed.

       The husband’s reliance upon McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App.—Austin 1953, no writ), is misplaced since that case was expressly overruled in Francis, supra, 412 S.W.2d at 33.