author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry PRIER, Defendant-Appellant.
    No. 10391.
    Missouri Court of Appeals, Springfield District.
    Jan. 13, 1978.
    Motion for Rehearing or Transfer Denied on Jan. 30, 1978.
    Application to Transfer Denied March 13,1978.

      John B. Newberry, Springfield, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

A jury convicted defendant-appellant Jerry Prier of three offenses, each involving the sale of a controlled substance (§ 195.020 as amended L.1971), and he was duly sentenced. Each offense was charged in a separate count in the same information.

On this appeal defendant’s sole “point relied on” is that the trial court erred in permitting, over the objection of the defendant, the three offenses to be tried before the same jury. It is the position of defendant that Rule 24.04 did not permit the joinder of the instant three offenses in one information. It is the position of the state that joinder of the three offenses in one information was proper under Rule 24.-04 and that the trial court did not err in permitting the joint trial.

Before the trial the defendant, by motion, objected to the joinder of the three offenses in one information and objected to their joint trial. The objections were renewed in a motion made by defendant during the trial and in his post-trial motions. The brief of the state concedes that the motions were timely and in proper form.

Rule 24.04 provides, in pertinent part: “All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute . . .” (Emphasis added) It is the position of the state that the italicized portion of the rule authorized the joinder of the three offenses in one information. The state does not seek to justify the joinder on any other basis.

The information in the case at bar charged the defendant with three unlawful sales of controlled substances, each offense occurring in Greene County. The three offenses were as follows: March 12, 1975— “3,4-methylenedioxy amphetamine”— (Count III); March 20, 1975 — “marijuana” —(Count I); May 9, 1975 — “cocaine”— (Count II).

The state’s evidence showed that each of the three sales was made to Donald Lipp, a corporal of the Missouri State Highway Patrol. Lipp was working “under cover,” that is, “in civilian clothes, with a longer type of hair, usually with a beard and moustache, usually working narcotics on the street, attempting to make drug purchases.”

On March 12, 1975, Lipp, with two confederates Ingram and Dowdy, went to the home of defendant at 1222 N. Forest in Springfield. Lipp was introduced to defendant by Ingram as being Ingram’s cousin, “Clint Powers” from Kansas City. Lipp told defendant that he was interested in buying some drugs. Defendant said that he knew a person, one Mike Davis, who had some drugs the evening before and suggested that the two men go to see if that person had any left. Lipp and defendant went in Lipp’s car to the 900 block on East Elm. While Lipp waited in the ear, defendant went into an apartment building, obtained from Davis a quantity of the drug named in Count III, and gave it to Lipp in return for $175.

On March 20,1975, about 8:30 p. m., Lipp drove to defendant’s house. Defendant told Lipp that a man was coming over with a pound of marijuana at 9 p. m. and asked Lipp if he was interested in buying some. Lipp said that he was interested. At 9 p. m. a man arrived with a quantity of marijuana. The record shows that the man was introduced to Lipp as Boyd, but he was Jay Manning. Defendant and “Boyd” placed some of the marijuana in eight small plastic bags. The bags were placed in a paper sack which was delivered to Lipp in return for $80.

While they were together on March 20 defendant gave Lipp his telephone number and, according to Lipp, “told me that any time I was in town, if I could not go by, to call him, that if he did not have anything in the narcotic line that he could locate some for me.”

On May 9, 1975, about 7 p. m., Lipp telephoned defendant who asked Lipp if he was interested in purchasing some cocaine and, if so, to call him back. At 8:35 p. m. Lipp telephoned defendant who told him that a man was coming over with a gram of cocaine for which he wanted $60. Lipp drove to defendant’s home. An unidentified man was in the living room. Defendant obtained a quantity of cocaine from the refrigerator and sold it to Lipp for $60.

The St. Louis district of this court has said that Rule 8(a) of the Federal Rules of Criminal Procedure, although not identical in language to Rule 24.04, is so similar to it-that judicial interpretations of the federal rule are persuasive. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974).

F.R.Cr.P. 8(a), in language broader than that contained in Missouri Rule 24.04, defines what offenses may properly be joined in one information. Even if joinder is proper under F.R.Cr.P. 8(a), it may be prejudicial to the defendant and, if so, he may obtain relief under F.R.Cr.P. 14 which permits the court, upon a showing of such prejudice, to order an election, separate trials or other appropriate relief. If, however, the joinder is improper under F.R. Cr.P. 8(a), and an objection is timely posed, discretion is not involved. The court must order a severance, and commits reversible error in failing to do so. United States v. Marionneaux, 514 F.2d 1244, 1248[1, 2] (5th Cir. 1975); King v. United States, 355 F.2d 700 (1st Cir. 1966); United States v. Goss, 329 F.2d 180 (4th Cir. 1964); Ingram v. United States, 272 F.2d 567 (4th Cir. 1959); Metheany v. United States, 365 F.2d 90, 95 (9th Cir. 1966); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966); Wright, Fed.Prac. and Proc., Vol. 1, § 221, p. 432; Moore’s Fed.Prac., Sec.Ed., Yol. 8, § 8.04[2],

The state has not cited any Missouri case dealing with the “common scheme or plan” portion of Rule 24.04 as the only justification for joinder of offenses in one information.

If the propriety of the instant join-der was to be determined solely by an examination of the face of the information, as distinguished from an examination of the evidence' adduced at the trial, the state’s position would fail. Each count of the information alleged only the date of the sale, its commission in Greene County, the specific drug sold, and the fact that the defendant, with the requisite intent, was the seller. The information did not contain any express allegation that the acts or transactions mentioned respectively in the three counts were “parts of a common scheme or plan.” There was no allegation that each count involved a sale to the same purchaser, Cpl. Lipp. In none of the counts was the purchaser identified.

Federal authority exists to the effect that the propriety of joinder of defendants under F.R.Cr.P. 8(b), or the joinder for trial of two or more indictments or informations under F.R.Cr.P. 13 (which involves the inquiry of whether the offenses were properly joinable in a single indictment or information under F.R.Cr.P. 8(a)) need not be “gleaned from the face of the indictments,” and that joinder is proper if the evidence at the trial “demonstrates that the two separate offenses could have been charged in a single indictment.” Griffin v. United States, 272 F.2d 801, 802[1] (5th Cir. 1960). See also United States v. Franks, 511 F.2d 25, 29 (6th Cir. 1975); United States v. McDaniels, D.C., 57 F.R.D. 171, 174[2] (1972).

If the propriety or impropriety of the instant joinder need not be gleaned from the face of the information but may be based on the trial evidence, the state’s position similarly fails for the reason that the evidence at the instant trial does not support a finding that the three offenses were “parts of a common scheme or plan.” There is nothing in the evidence to support a finding or reasonable inference that the defendant, prior to the commission of the first offense, intended to commit all of them. Although the series of purchases may have been within a scheme or plan harbored by Lipp, so far as the defendant is concerned they appear to have been independent transactions, unrelated to each other, impromptu and casual in nature, not products of a single or continuing motive. They involved different drugs, different times, different participants and generally different circumstances. There is no showing that if any of the offenses had not been committed, a villainous and overall design would have been frustrated.

Rule 24.04 in its present form became effective on July 1, 1971. The former version of Rule 24.04 was more narrow in the type of joinder of offenses permitted in one indictment or information. The “common scheme or plan” portion of the rule first appeared in 1971. Although, as has been indicated, the issue of the propriety of the instant joinder is one of first impression in this state, Missouri courts have dealt with a “common scheme or plan” doctrine as a part of the law of evidence. Case law in that area is instructive here and demonstrates an unwillingness on the part of the courts, on records such as this, to permit the introduction of evidence of drug offenses other than the one on trial.

“It is the well established general rule that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant’s guilt of the charge for which he is on trial. State v. Selle, Mo., 367 S.W.2d 522, 529; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. It has been said that ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that the proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.’ ” (Emphasis added) State v. Reed, 447 S.W.2d 533, 534 (Mo.1969).

In Reed, supra, defendant was charged with selling marijuana on July 12, 1967. The state offered evidence that on June 14, 1967, the same purchaser bought marijuana from the defendant. The supreme court held that the trial court committed reversible error in admitting the evidence concerning the June 14 sale. “Proof of the separate and distinct sale on June 14 did not tend to prove any material fact in issue concerning the sale on July 12. . The proof of the sale on June 14 did not show acts which were so related to the sale on July 12 that the proof of the first tended to establish the latter, and the act of the sale on July 12, if defendant made such sale, needed no explanation to indicate motive or intent.” Reed at p. 534. (Emphasis added)

The court also said that the evidence concerning the June 14 transaction “did not in any way tend to prove any fact in issue relative to the commission of the crime charged. This falls precisely within the general rule of exclusion, and not within any of the recognized exceptions.” (Emphasis added)

Similarly, in State v. Carter, 475 S.W.2d 85 (Mo.1972) the defendant was charged with selling a controlled substance on April 28,1967, to one Outright. The state offered evidence of conversations held on March 16, 1967, between Outright and the defendant in which defendant admitted similar offenses. Citing State v. Reed, supra, the supreme court held that the trial court committed reversible error in admitting into evidence those portions of the March 16 conversation which pertained to other offenses. At p. 88 the court said:

“The problem presented in the instant case is that the testimony as to the content of the conversation constituted evidence that defendant had, prior to the date of the conversation (March 16, 1967) sold ten to fifteen thousand amphetamine pills per week and had quit dealing some three weeks prior to March 16. The defendant was being prosecuted for the sale of two hundred amphetamine pills on April 28, 1967, and not for the sale of ten to fifteen thousand per week prior to March 16, 1967. The March 16th conversation did not take place as part of or in connection with the charged sale of April 28, 1967, nor did it constitute any prior or preliminary arrangement for the April 28th sale.” (Emphasis added)

In State v. Burr, 542 S.W.2d 527 (Mo.App.1966) defendant was charged with selling marijuana to one agent Lipp, apparently the purchaser in the case at bar, on January 26,1973. The trial court committed reversible error in permitting Lipp to testify to purchasing “speed” from defendant on January 11, 1973. The court said that the evidence of the January 11 sale did not tend to prove that defendant sold marijuana on January 26 and that “the testimony of agent Lipp concerning the sale of pills on January 11 does not clearly tend to prove any material fact in issue.”

In State v. Hudson, 478 S.W.2d 281 (Mo.1972), a robbery case, it was held to be reversible error for the state to prove that defendant had robbed the same victim on two occasions prior to the one on trial.

In the case at bar the conversation on March 20 in which defendant gave Lipp his telephone number would not, standing alone, justify a finding or an inference that the three offenses were, from the defendant’s standpoint, “parts of a common scheme or plan.” Indeed it is arguable that such evidence, introduced by the state, demonstrated that prior to that conversation he had no intent to encourage subsequent sales. Had there been such an intent it seems reasonable that it would have been evinced in connection with the commission of the first offense.

This court concludes that Rule 24.04 did not authorize the joinder of the instant three offenses in one information and that the trial court erred in permitting their joint trial over the timely objection of the defendant.

The judgment is reversed and the cause remanded.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Criminal Procedure, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . F.R.Cr.P. 8(a) “Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

      . Federal joinder of two or more drug-related offenses in the same indictment or information is usually based on that portion of F.R.Cr.P. 8(a) dealing with offenses “of the same or similar character,” language not found in Rule 24.-04. See United States v. Kellerman, 432 F.2d 371, 374[6] (10th Cir. 1970); United States v. Tillman, 470 F.2d 142, 143 (3rd Cir. 1972).

      . There is no Missouri rule which is a counterpart to F.R.Cr.P. 14. However, the supreme court has evinced a willingness to consider the question of whether a trial court has abused its discretion in denying a request for separate trials even though, as a matter of pleading, the offenses were properly joined in one information. State v. Minor, 556 S.W.2d 35, 38[3] (Mo.banc 1977); State v. Lee, 556 S.W.2d 25, 29[5] (Mo.banc 1977); State v. Duren, 556 S.W.2d 11, 20[13] (Mo.banc 1977). In those cases no such abuse was found.

      . “A joinder of offenses . . involves a presumptive possibility of prejudice to the defendant, and of benefit to the court, by which term we include the government and the public. Although the two matters are disparate and difficult to compare, the prejudice may be relatively small, compared to the benefit, and hence tolerable. Rule 8 is an attempt to set the limits of tolerance, and any joinder which does not fall within it is per se impermissible.” King v. United States, supra, 355 F.2d at 703[5],

      . “The statute involved [§ 195.020] makes it an offense to sell the controlled substance to any person and, while it is desirable, it is not necessary that the name of the buyer be set forth in the indictment. The buyer’s identity is not an essential element of the offense.” State v. Lemmon, 504 S.W.2d 676, 681 [2] (Mo.App.1973). See also United States v. Miranda, 494 F.2d 783, 788[6] (5th Cir. 1974).

      . See State v. Baker, 524 S.W.2d 122, 126 (Mo. banc 1975) fn. 3, containing the former and present versions of Rule 24.04. See also State v. Morgan, 539 S.W.2d 660, 663-665 (Mo.App.1976) for a review of the “decisional law and the purpose of the 1971 amendment of Rule 24.04.”


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Sharon L. GUMMELS, Respondent, v. William R. GUMMELS, Appellant.
    No. 38737.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 17, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.

      Jeffrey S. Pauli, St. Louis, for appellant.
    Barnard & Baer, Michael C. Aufden-spring, Earle Leadlove, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-wife Sharon Gummels sued to dissolve her marriage to defendant William Gummels. She asserted and he denied under oath that their marriage of eight years was irretrievably broken. After trial the court so found and decreed the marriage dissolved.

Defendant-husband appeals, contending only that considering all relevant factors, including the prospect of reconciliation, the evidence did not warrant a finding under § 452.320 2.(l)(b), RSMo. that he had behaved in such a way that his wife cannot reasonably be expected to live with him. We note that statute refers to a spouse’s behavior — not misbehavior. It will suffice if the behavior of one spouse, combined with the attitude and behavior of the other, indicates a reasonable likelihood the marriage cannot be preserved.

Since “fault” is not determinative of whether the marriage should be dissolved (Conrad v. Bowers, 533 S.W.2d 614[5] (Mo.App.1975)), we must determine whether evidence of the parties’ relationship warranted the trial court’s finding that “there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken.” § 452.305 1.(2), and Capstick v. Capstick, 547 S.W.2d 522[1-3] (Mo.App.1977).

We consider the scope of our review. The defendant’s only challenge is that there was insufficient evidence to support the trial court’s conclusion the marriage was irretrievably broken. Our power to set aside the dissolution on that ground must be exercised with caution and we may do so only with a firm belief the decree is wrong. Murphy v. Carron, 536 S.W.2d 30[l-3] (Mo.1976).

Defendant’s only cited case on the merits is In re Marriage of Mitchell, 545 S.W.2d 313[4] (Mo.App.1977). There, a decree of dissolution was reversed where the plaintiff-husband’s sole reason for his inability to live with his wife — without explanation— was his bald statement he no longer loved her. That case is distinguishable.

Here, there was evidence of the parties’ deteriorating relationship and the waning of their affections for several years bearing on the factual issue of whether the plaintiff could reasonably be expected to live with defendant. She testified that only she disciplined their two children; that defendant usually consoled them and would not “back her up.” Plaintiff also testified she and defendant were “unable to communicate”; that they could not “iron out our differences”; they couldn’t live together, and she needed some peace of mind.” Plaintiff testified these differences had existed for a long time, she no longer loved him and believed there was no likelihood the marriage could be preserved.

Defendant-husband testified his wife’s complaints were “built out of all proportion” and concluded he did not believe their marriage was irretrievably broken.

By Rule 73.01(d), VAMR, we must on appeal defer to the trial court’s opportunity to judge the parties’ credibility. To reach its conclusion that the marriage was irretrievably broken, the trial court had to determine whether the conduct of the parties was such that they could not reasonably be expected to live together. We have before us only the printed record of the parties’ words; in contrast, the trial court heard and saw the parties and could interpret the evidence in all its shades of meanings and assess the vital factor of their attitude toward each other. As we ruled in L.H.Y. v. J.M.Y., 535 S.W.2d 304[l-4] (Mo.App.1976): “On appeal of a court tried case, the appellate court does not function as a judicial second guesser . . . the trial court is in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.”

Granting that deference to the trial court, we conclude the evidence supported its finding that the parties’ relationship was such that plaintiff could not reasonably be expected to live with defendant, and we find no reversible error in the court’s conclusion that there remains no reasonable likelihood the marriage can be preserved and is irretrievably broken.

Decree of dissolution affirmed.

SMITH and McMILLIAN, JJ., concur.


author: STONE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmie Dean HAGAR, Defendant-Appellant.
    No. 10698.
    Missouri Court of Appeals, Springfield District.
    Jan. 18, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    J. D. Baker, Belisle & Baker, Osceola, for defendant-appellant.
   STONE, Judge.

Having waived trial by jury, defendant was tried by the court, convicted of assault with intent to kill, and subsequently sentenced to a two-year term of confinement. Execution of the sentence was suspended, and defendant was placed on probation for a like period of two years.

Attorneys for the respective parties to the appeal have approved the transcript and affixed their signatures thereto. Rule 81.-12(c), V.A.M.R., authorizes approval of the transcript on appeal by the attorneys for the parties only if “the transcript correctly includes all of the record, proceedings and evidence.” Careful examination of the transcript in this case reveals that it is signally deficient in that it does not establish that a proper judgment has ever been entered by the circuit clerk pursuant to the mandate of Rule 27.11, V.A.M.R., that “[wjhenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.” The instant transcript contains an aggregation of docket entries which have been collectively cognominated the “Judgment and Sentence,” but nowhere in this collage of entries is it shown or demonstrated that the judgment was entered upon the records of the circuit clerk.

Since it is essential for the purpose of appellate review that upon conviction the clerk’s entry of judgment and sentence be preserved and included in the transcript on appeal, we must hold the appeal in abeyance, remand the cause to the trial court for entry of the required judgment, and thereafter reinstate the appeal upon receipt of a supplemental transcript containing a proper judgment. State v. Woods, 560 S.W.2d 906 (Mo.App.1978); State v. Shipman, 560 S.W.2d 603 (Mo.App.1978); State v. Asberry, 553 S.W.2d 902, 903(2) (Mo.App.1977); State v. Pogue, 552 S.W.2d 75, 76 (Mo.App.1977). See also State v. Skaggs, 248 S.W.2d 635, 638(9-14) (Mo.1952); State v. Vinson, 337 Mo. 1023, 1027-28, 87 S.W.2d 637, 640(8) (1935).

It is so ordered.

BILLINGS, C. J., and HOGAN, TITUS and FLANIGAN, JJ., concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roe Harold LANCE, Defendant-Appellant.
    No. 10789.
    Missouri Court of Appeals, Springfield District.
    Jan. 19, 1978.
    See also, Mo.App., 561 S.W.2d 446.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-appellant.
   BILLINGS, Chief Judge.

Defendant Roe Harold Lance was convicted of robbery in the first degree by means of a dangerous and deadly weapon, by a Butler County jury.

The transcript filed herein, approved by the parties, shows that following the overruling of the defendant’s motion for new trial, allocution was accorded defendant. This is followed by what is designated as an entry on the Judge’s docket sheet:

“It is the Judgment & Sentence of this Court that the Deft, is sentenced to the Missouri Dept, of Corrections for a period of 20 years. Said sentence to run consecutively to a sentence from the Stoddard County Circuit Court.
Court finds the Deft, indigent for purposes of appeal & relieves Clinton Summers as attorney for deft. & appoints Ted Henson of the Butler County Bar to represent the deft, for appeal purposes.
Appeal Bond is set at $30,000.00.
Court Reporter ordered to prepare transcript if Notice of Appeal is filed.”

This appeal is premature because the docket entry does not constitute a judgment from which an appeal can be taken. Without such a judgment being entered by the clerk, we do not have jurisdiction to consider the appeal.

Rule 27.11, V.A.M.R., requires that “Whenever a judgment upon a conviction shall be rendered . . ., the clerk . . . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The “judgment” here is nothing more than a docket entry and not a judgment as required by the rule, for it nowhere gives a clue to “the offense for which such conviction shall have been had,” and the “entry” cannot be transmogrified into a judgment by merely being given that name in the notice of appeal or in the index of the transcript. Williams v. Williams, 480 S.W.2d 525, 527 (Mo.App.1972); State v. Wilke, 560 S.W.2d 601 (Mo.App.1978) No. 10709; State v. Shipman, 560 S.W.2d 603 (Mo.App.1978) No. 10799; State v. Asberry, 553 S.W.2d 902 (Mo.App.1977).

Failure to enter the judgment required by Rule 27.11 is not appellant’s fault and his appeal will not be dismissed. Nonetheless, as it is essential for the purpose of appellate review that the judgment entry upon conviction be preserved and shown by the transcript, we must hold the appeal in abeyance, remand the cause to the trial court from whence it came for entry of the required judgment, and reinstate the appeal upon receipt of a supplemental transcript containing said judgment. State v. Skaggs, 248 S.W.2d 635, 638 (Mo.1952).

It is so ordered.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Roe Harold LANCE, Defendant-Appellant.
    No. 10636.
    Missouri Court of Appeals, Springfield District.
    Jan. 19, 1978.
    John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-appellant.
   BILLINGS, Chief Judge.

A Stoddard County jury convicted defendant of first degree robbery and fixed his punishment at 25 years imprisonment. Defendant’s motion for new trial was overruled and the court granted allocution, rendered judgment and pronounced sentence.

The transcript filed herein shows that in entering judgment the clerk omitted the offense for which defendant was convicted. Rule 27.11, V.A.M.R., requires the judgment entered to state “briefly the offense for which such conviction shall have been had . . . .” See: State v. Lance, 561 S.W.2d 445 (Mo.App.1978); State v. Wilke, 560 S.W.2d 601 (Mo.App.1978); State v. Shipman, 560 S.W.2d 603 (Mo.App.1978).

Defendant’s appeal is ordered held in abeyance and the cause is remanded to the trial court for entry of judgment as required by Rule 27.11. Upon receipt of a supplemental transcript containing the proper judgment, the appeal will be re-submitted. State v. Wilke, supra.

It is so ordered.

Remanded with directions.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert McFALL, Jr., Defendant-Appellant.
    No. 10687.
    Missouri Court of Appeals, Springfield District.
    Jan. 19, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul Crider, Jr., Public Defender, Rolla, for defendant-appellant.
   PER CURIAM.

Appellant’s notice of appeal was filed in the Phelps County Circuit Clerk’s office on May 6, 1977. Said notice alleged that the underlying judgment became final on May 2, 1977. An order waiving the docket fee was signed on May 13, 1977.

Rules 28.03 and 81.04 require that a notice of appeal be filed within ten days after the judgment becomes final. There can be no valid filing of a notice of appeal until the docket fee has been paid or waived. State v. Worl, 531 S.W.2d 294, 295(2) (Mo.App.1975). The last day to file the notice of appeal was May 12, 1977, and subsequent waiver of the docket fee does not bestow jurisdiction upon this court.

The appeal must be, and hereby is, dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Michael K. WILLIAMS, Defendant-Appellant.
    No. 10756.
    Missouri Court of Appeals, Springfield District.
    Jan. 19, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul Crider, Jr., Public Defender, Rolla, Richard L. Parker, Asst. Public Defender, Vienna, for defendant-appellant.
   PER CURIAM.

Appellant’s notice of appeal was filed in the office of the Pulaski County Circuit Clerk on July 16, 1977. Said notice alleged that the underlying judgment became final on July 13, 1977. An order waiving the docket fee was signed on July 26, 1977.

Rules 28.03 and 81.04 require that a notice of appeal be filed within ten days after the judgment becomes final. There can be no valid filing of a notice of appeal until the docket fee has been paid or waived. State v. Worl, 531 S.W.2d 294, 295(2) (Mo.App.1975). The last day to file the instant notice of appeal was July 23, 1977, and subsequent waiver of the docket fee does not bestow jurisdiction upon this court.

The appeal must be, and hereby is, dismissed.

All concur.


author:
TITUS, Judge. BILLINGS, Chief Judge.
      FLANIGAN, Judge.

text:
    Ted H. GOTHARD, Petitioner-Appellant, v. James SPRADLING, Director, Missouri Department of Revenue, Leevirt H. Williams, Supervisor, Bureau of Driver’s License, Respondents.
    No. 10762.
    Missouri Court of Appeals, Springfield District.
    Jan. 20, 1978.

      Samuel J. Short, Jr., Stockton, for petitioner-appellant.
    Dennis D. Reaves, Pros. Atty., Cedar County, for respondents.
   TITUS, Judge.

Appellant’s Missouri motor vehicle operator’s license was ordered revoked for a period of one year from April 4, 1976. The revocation order emanated from appellant’s alleged refusal to submit to a chemical test of sobriety within the City of Stockton, Missouri, on February 28, 1976. Thereafter, on March 24, 1976, a restraining order was issued by the regular judge of the court staying the enforcement of the revocation order. Subsequently a special judge was assigned to hear the matter.

Evidence was heard in the cause and the following entry was made on July 22, 1977:

“All parties appear and announce ready to proceed. Plaintiff’s [sic] oral Motion to Dismiss heard and overruled. Defendant’s [sic] Motion for Order Declaring Director of Missouri Department of Revenue in Default overruled.
“Evidence adduced. The Court orders that the temporary restraining order shall be continued until that Motion for New Trial is ruled upon.
“In the event a Notice of Appeal is filed the Appeal Bond shall be in the amount of $150.00.”

Proceedings of this suit are civil in nature and are governed by rules pertaining to appeals of civil proceedings. In re Spencer, 439 S.W.2d 8, 9 (Mo.App.1969). The instant transcript contains nothing more than a minute or docket entry which does not constitute a final judgment from which an appeal may be taken. Williams v. Williams, 480 S.W.2d 525, 527[3] (Mo.App.1972).

The appeal must be, and hereby is, dismissed.

STONE and HOGAN, JJ., concur.

BILLINGS, C. J., concurs in separate opinion.

FLANIGAN, J., dissents in separate opinion.

BILLINGS, Chief Judge.

I concur in the principal opinion. Without a final judgment having been entered, we have no appellate jurisdiction. McCoy v. Simpson, 344 Mo. 215, 125 S.W.2d 833 (1939). In my view, Rule 81.12(c), and the cases cited in the dissenting opinion, presuppose jurisdiction in this court.

Any additional steps required of the parties by our dismissing the case arises from their failure to see to it that the judgment rendered by the trial court was entered and made a part of the transcript.

FLANIGAN, Judge.

I respectfully dissent. I agree with that portion of the majority opinion which delineates the flaw in the transcript. I do not believe, however, that the appeal should be dismissed. I feel that the defect is correctable by an order of this court entered pursuant to Rule 81.12(c) which provides in part: “The appellate court may, if it seems necessary, order that a supplemental transcript on appeal shall be prepared and filed by either party or by the clerk of the trial court including any additional part of the record, proceedings and evidence . . . ” By dismissing this appeal, this court is requiring the parties to take additional steps in order to relodge the matter here. Some of them could be eliminated and the appeal would be expedited if the problem were dealt with by order rather than by dismissal. See Feigenbaum v. Van Raalte, 356 Mo. 67, 201 S.W.2d 283, 284[1] (1947); Whealen v. St. Louis Soft Ball Ass’n, 356 Mo. 622, 202 S.W.2d 891, 893[2] (1947); Gibson v. Metropolitan Life Ins. Co., 204 S.W.2d 439, 440[2] (Mo.App.1947).


author: SMITH, Judge.

text:
    James Curtis HAYNES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38939.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 24, 1978.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied March 13,1978.
    Robert C. Babione, Public Defender, James B. Ashwell, Robert O’Blennis, Asst. Public Defenders, St. Louis, for movant-ap-pellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court in denying his motion to set aside judgment and sentence filed pursuant to Rule 27.26. Movant was tried and convicted of murder, first degree, and attempted robbery in 1973 and sentenced to life imprisonment and five years imprisonment. The convictions were affirmed on appeal. State v. Haynes, 510 S.W.2d 423 (Mo.1974).

In his motion Haynes alleged (1) ineffective assistance of counsel, (2) error in the trial instructions, (3) insufficiency of the evidence to support the verdict and (4) prejudicial argument by the prosecutor. Following an evidentiary hearing at which movant presented evidence only as to ineffective assistance of counsel, the trial court denied his motion. On appeal Haynes raises two points, i. e.: (1) the court erred in its finding that movant had failed to carry his burden of establishing ineffective assistance of counsel and (2) that the court erred in failing to make findings of fact and conclusions of law on the other three grounds alleged in his motion.

Our review of the record convinces us that the court’s finding on the counsel question was supported by the evidence. The court did not “credit movant’s testimony.” It found that movant’s attorney “made effective preparation for trial” and that the matters complained of by movant did not prejudice movant’s defense. The record supports these findings.

The other three matters all involved trial errors and were not properly cognizable in a 27.26 proceeding. Additionally, movant presented no evidence to support them. Under these circumstances we find no error in the failure of the trial court to make specific findings and conclusions concerning those allegations. Smith v. State, 513 S.W.2d 407 (Mo.1974).

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: BROCK, Justice.

text:
    J. D. WALLACE, Commissioner of Employment Security and Standard Iron and Wire Works, Inc., Appellants, v. Oscar C. SULLIVAN, Appellee.
    Supreme Court of Tennessee.
    Feb. 6, 1978.

      Sam J. McAllester, Jr., Nashville, William T. Alt, Chattanooga, for appellants.
    Michael S. Prichard, Chattanooga, for ap-pellee.
   OPINION

BROCK, Justice.

This is a proceeding by plaintiff, Oscar C. Sullivan, to secure unemployment insurance benefits under the Tennessee Employment Security Law, T.C.A., § 50-1301, et seq. The administrative agency denied the claim upon grounds that the plaintiff-employee had, without just cause, refused suitable employment and, therefore, was not available for work. The plaintiff-employee sought review of the administrative decision in the Chancery Court for Bledsoe County. The Chancellor held that upon the undisputed facts the plaintiff was not disqualified for benefits by reason of his refusal to accept the job in question because such refusal, in the opinion of the Chancellor, was not without good cause. Accordingly, the Chancellor reversed the administrative decision and awarded benefits. From the decree of the Chancellor the Commissioner and the employer have appealed to this Court.

The plaintiff was employed as a skilled machine operator at a wage of $4.30 per hour when he received notice of a layoff due to a reduction in force. Upon receiving notice of the layoff, plaintiff was approached by his supervisor who informed him that pursuant to the contract between his union and the employer, Standard Iron and Wire Works, Inc., he, by virtue of his seniority, could “roll back” another employee of less seniority and take a grinder’s job which would pay him $3.80 per hour, or, in the alternative, he could elect to be laid off and maintain his seniority for a period of twelve months. The plaintiff elected not to roll back but instead to accept the layoff and file a claim for unemployment compensation benefits.

From the very beginning it has been the plaintiffs contention that the position of grinder, which was offered to him by the employer pursuant to the union contract, was not “suitable work” within the meaning of T.C.A., § 50-1324(C). He complained that it was an unskilled position, whereas his former position was a skilled one, and that the working conditions as a grinder would have been detrimental to his health because of the dusty atmosphere in which a grinder works. It appears, however, that his primary reason for refusing to accept the grinder’s job was that it paid $20.00 less in wages per week; he so testified at the hearing before the Board of Review.

T.C.A., § 50-1324(C), provides that an employee shall be disqualified for benefits “if the commissioner finds that he has failed without good cause ... to accept suitable work when offered •. . . ” and that “in determining whether or not any work is suitable for an individual, the commissioner shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.” It is by these provisions of the law that we must determine whether the plaintiff-employee disqualified himself to receive unemployment benefits by his refusal to roll back another employee and accept a grinder’s position. Although the findings of fact of the Board of Review are conclusive upon the courts if there be any evidence to support them, T.C.A., § 50-1325(1), in a case such as this in which the facts are not in dispute it is the duty of the Court to apply the law to those facts without indulging a presumption of correctness of the conclusion of the Board of Review. Aladdin Industries, Inc. v. Scott, 219 Tenn. 71, 407 S.W.2d 161 (1966); Cooper v. Burson, 221 Tenn. 621, 429 S.W.2d 424 (1968).

It is our conclusion that the Board of Review correctly applied the law to the facts of this case in determining that the plaintiff was disqualified because of his failure, without good cause, to accept suitable work. First, we hold that the grinder’s position which was offered to the plaintiff was “suitable work” considering all the facts and circumstances, including those which the Commissioner is enjoined to consider by the provision above-quoted from T.C.A., § 50-1324(C)(l). The record does not show that the work of the grinder would involve an unreasonable risk to the plaintiff’s health, safety or morals. The plaintiff had worked as a grinder prior to his promotion to the position of machine operator and was certainly physically fit and properly trained to perform the work of the grinder. The insistence of the plaintiff that the grinder’s job should be considered unsuitable because it paid $20.00 less per week than he had been earning in his position as machine operator is not supported by the authorities. Certainly, experience and prior earnings are very relevant considerations in determining suitability of offered employment, and a discharged employee will not be required to accept substantially less favorable wages; nevertheless, this Court has held that claimants will not be permitted to draw compensation until their former jobs are again available when reasonable, although less lucrative alternatives, do exist which they refuse to accept. Aluminum Company of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898 (1960); Aladdin Industries v. Scott, supra; Moore v. Commissioner of Employment Security, 197 Tenn. 444, 273 S.W.2d 703 (1954). The Aluminum Company of America v. Walker case was quite similar to the instant case and this Court therein said:

“. . .a payment of unemployment compensation to these men, notwithstanding their refusal to accept the next best available work, would have amounted to a financing of each of these men . until there became available to him his old job or one paying equal wages.
“But it is not the purpose of the Employment Security Law to pay unemployment compensation to employees let out for lack of work until there becomes available to such employee his old job or one paying equal wages. Its purpose is to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. T.C.A. § 50-1302.” 207 Tenn. at 419, 340 S.W.2d at 901.

In this case the plaintiff has been given the option óf returning to his old position of grinder which he held less than two years previously. In cases wherein the claimant has been offered the next best available job which his employer has to offer, this Court and others have held that pay differentials of up to $50.00 per week should be considered acceptable unless reasonable alternative employment could be found. Aluminum Company of America v. Walker, supra; In Re Claim of Krystofik, 284 App.Div. 34, 130 N.Y.S.2d 137 (1954); Glenn Alden Coal Company v. Unemployment Compensation Board of Review, 169 Pa.Super. 356, 82 A.2d 64 (Pa.1951).

In determining the suitability of offered employment the claimant’s desire to obtain a job commensurate with his skills and with his prior earnings must be balanced against the length of time he remains unemployed. T.C.A., § 50-1324(C)(l).

“Attention is given to the expectancy of securing employment of the grade for which the worker’s capacity fits him and to the length of unemployment, because work unsuitable at the beginning may be deemed suitable after a lapse of time.” Sanders, Disqualification for Unemployment Insurance, 8 Vand.L.Rev. 307, 331 (1955).

Thus, in Hallahan v. Riley, 94 N.H. 48, 45 A.2d 886 (1946), it was held that after ten weeks of unemployment a laborer discharged from skilled work earning $1.04 per hour could no longer claim as “unsuitable” an offer of unskilled work paying only $0.60 per hour even though she had justifiably refused the offer earlier. Three and one-half months had gone by at the time plaintiff’s case was heard by the Board of Review and at that time he had still refused the option of rolling back to the position of grinder.

The collective bargaining agreement in the instant case provided that a laid-off employee should be entitled to immediate reinstatement to his former position as soon as business conditions permitted the company to refill that position. In our opinion, this factor considerably restricted the degree of selectivity allowable to the plaintiff in selecting suitable alternative employment.

We conclude that, under all of the circumstances appearing, the decision of the Board of Review that the position of grinder offered to the plaintiff was suitable work was a reasonable and correct one under the law.

As noted earlier, the Chancellor reversed the decision of the Board of Review and awarded benefits, not because he found that the grinder’s position was unsuitable work, but because, assuming it to be suitable work, the plaintiff, nevertheless, had good cause for refusing it. The Chancellor found this good cause for refusal to exist because of the fact that in order to obtain the grinder’s position the plaintiff would have to “roll back” a fellow employee, thereby depriving such other employee of his livelihood. Requiring an employee to take the job of another or else face denial of unemployment compensation was held by the Chancellor to be a violation of both the purpose and spirit of the Employment Security Act.

The term “good cause” is not defined in the statute. But courts of other states construing similar statutes have held that “good cause” means an adequate cause, a cause that comports with the purposes of the state’s unemployment insurance statute and with its other laws. Syrek v. California Unemployment Insurance Appeals Board, 54 Cal.2d 519, 7 Cal.Rptr. 97, 354 P.2d 625 (1960); 76 Am.Jur.2d Unemployment Compensation § 68 (1975). Our own statute declares it to be the public policy of the state to provide unemployment compensation “. . . for the benefit of persons unemployed through no fault of their own.” T.C.A., § 50-1302. Construing the term, “good cause,” in the light of this declared public policy, we conclude that good cause to refuse work which is otherwise suitable does not exist merely because the employee’s acceptance of the offered position will result in the discharge of a fellow employee of less seniority.

No doubt the Chancellor, in reaching the contrary conclusion, was motivated by the ethical considerations which are obviously present. Nevertheless, the right of an employee with greater seniority to “roll back” another employee of less seniority is a right much prized by labor unions and workers and, no doubt, found its way into the collective bargaining agreement involved in this case by virtue of the insistence of the employees. It has long been the sense of our people that employees of greater seniority should have priority to the available jobs in the event of necessary reductions in force and in rehirings following work layoffs. This right to roll back an employee of less seniority is a right well recognized in the law. Accordingly, we are unable to concur in the conclusion reached by the Chancellor in this case. The job of grinder was there for the plaintiff to take and we hold that it was, under the circumstances, suitable work which was refused by the plaintiff without good cause.

The decree of the Chancery Court is reversed. The decision of the Board of Review is affirmed and the suit is dismissed at the cost of the plaintiff.

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


author: HENRY, Chief Justice.

text:
    Virginia P. COLLINS, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    Feb. 13, 1978.
    H. Calvin Walter, Walter, Gilbertson & Associates, Knoxville, for appellant.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for appellee.
   OPINION

HENRY, Chief Justice.

This is an action for workmen’s compensation death benefits. Plaintiff-appellant is the widow of Douglas S. Collins, who was an employee of defendant-appellee’s insured, Foote Mineral Company. The complaint alleged that plaintiff’s husband, while in the course of his employment on September 25, 1974, was involved in an automobile accident in Huntsville, Alabama, and that he died as a result of this accident. The defendant denied that the deceased’s death was the result of an accident arising out of and in the course of his employment.

The parties stipulated that Collins died while in the course of his employment and that a death certificate introduced into evidence by the plaintiff was the certificate of death on file with the State of Alabama. This certificate stated that the cause of death was an “apparent heart attack.” It also indicated that no autopsy was performed on the body.

The only testimony offered by either side was that of plaintiff’s witness, James Cline, Collins’ fellow employee. Cline testified that Collins was a hard worker and trav-elled a great deal. He also stated that, as far as he knew, Collins had been in good health prior to his death.

Relying on Milstead v. Kaylor, 186 Tenn. 642, 212 S.W.2d 610 (1948), the plaintiff asserted that she was entitled to judgment solely on the ground that when an employee is found dead under circumstances indicating that death occurred during the time and at the place of his employment, with no direct evidence as to the cause of his death, an inference may arise that the death arose out of and in the course of the worker’s employment. The trial judge felt that, under the evidence presented in this case, such an inference did not arise and, finding that the plaintiff had failed to carry the burden of proof, dismissed the action. We must agree with his decision.

While it is true that in Milstead the evidence presented by the plaintiff permitted the inference that the employee’s death arose out of his employment, in Tennessee the fact that an employee is found dead at his place of employment during working hours does not alone create a prima facie case. See Wilson v. St. Louis Terminal Distributing Co., 198 Tenn. 171, 278 S.W.2d 681 (1955); Reed v. Langford, 197 Tenn. 587, 276 S.W.2d 735 (1955); Farris v. Yellow Cab Co., 189 Tenn. 46, 222 S.W.2d 187 (1949); Home Ice Co. v. Franzini, 161 Tenn. 395, 32 S.W.2d 1032 (1930).

Something more must be shown. For example, in Milstead, supra, the Court was faced with “uncontradicted evidence” and proof that an employee in good health eol-.lapsed and died while at his work, which involved strenuous labor in the hot sun. In awarding compensation, the Court stated that the presumption was made out by three factors:

(1) that the deceased died while on his job; (2) that he was a strong, able-bodied man not subject to heart attacks, and (3) that his death under the circumstances was readily attributable to a compensable injury. (Emphasis supplied.) 186 Tenn. at 649, 212 S.W.2d at 613.

In other cases in which the Court also permitted the presumption, there was proof that the employee had so exerted himself that he became ill and died. See e. g. Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402 (1955); Lay v. Blue Diamond Coal Co., 196 Tenn. 63, 264 S.W.2d 223 (1953); Cunningham v. Hembree, 195 Tenn. 107, 257 S.W.2d 12 (1953). In Shockley v. Morristown Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900 (1928), death was shown to have resulted from contact with the “identical mechanical instrumentality with which the deceased was employed to deal.” See also, Crane Rental Service v. Rutledge, 219 Tenn. 433, 410 S.W.2d 418 (1966). In other words, there must be sufficient proof, before the Court will presume that the death arose out of the deceased’s employment.

Where no evidence exists of any exertion aggravating a pre-existing condition or of any accident, it cannot reasonably be inferred that the death of the deceased arose out of his employment. Wilson v. St. Louis Terminal Distributing Co., supra. If the facts alleged or proved give rise to more than one reasonable inference as to the cause of death, to draw the inference that the death arose out of the deceased’s employment constitutes impermissible speculation and conjecture. Farris v. Yellow Cab Co., supra.

In the present case, the plaintiff produced no proof concerning the accident. There are averments of an automobile accident, a death certificate stating that the cause of death was “an apparent heart attack,” a stipulation that the death occurred in the course of the deceased’s employment, and testimony that the deceased was a hard worker and frequent traveller. This is insufficient to raise the presumption that death arose out of employment.

On the basis of the paucity of proof, the decision of the trial court is affirmed.

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


author: COOPER, Justice.

text:
    LAMINITE PLASTICS MFG. CO., Appellant, v. Clyde J. GREENE, Appellee.
    Supreme Court of Tennessee.
    Feb. 13, 1978.
    Clinton R. Anderson, Anderson & Anderson, Morristown, for appellant.
    Edward H. Moody, Morristown, for appel-lee.
   OPINION

COOPER, Justice.

This is an appeal by the Laminite Plastics Manufacturing Company from a judgment awarding its employee, Clyde J. Greene, permanent partial disability benefits under the Workmen’s Compensation Act. Appellant insists there is no material evidence that appellee suffered an “accidental injury.” Appellant also insists that the trial judge erred in failing to find that appellee, in making application for employment, wil-fully gave false medical history and thus is barred from recovery of benefits.

Appellee, then sixty-nine years of age, was employed by appellant in 1976 to do “light” work on a part-time basis. In early 1977, appellee was employed as a “full-time” worker and assigned to work a ten-hour day feeding table tops into a laminating machine. The table tops handled by appellee were from twenty-one to twenty-four inches in width and forty-two to forty-eight inches in length. Weight of the boards ranged from fifteen to twenty-five pounds. On April 5,1977, while performing the tasks assigned to him, appellee reported to his supervisor that he had “messed [his] back up,” was sent to first aid, and then to a physician for treatment.

The treating physician testified that ap-pellee has degenerative arthritis, particularly in the lumbar area of the spine — a condition to be expected of a man sixty-nine years of age who has worked many years at heavy manual labor. According to Dr. Chambers, appellee’s arthritic condition was aggravated and made symptomatic by the bending, stooping, lifting, reaching, and twisting motions required by the job assignment given appellee. These movements, repeated over a period of time, irritated nerve roots in the lumbar area of the spine, causing swelling and pain to the point where appellee required medical treatment.

An employee is entitled to workmen’s compensation benefits where he sustains an injury by accident arising out of and in the course of his employment. T.C.A. § 50-902(d). Within the terms of the statute, “an accident” includes a condition which develops gradually over a period of time resulting in a definite work-connected, unexpected, fortuitous injury. Central Motor Express Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947 (1964); Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961). In our opinion, under the above definition of “an accident,” the trial judge’s finding that appellee sustained an injury “by accident” arising out of and in the course of his employment is supported by material evidence.

In the face of the finding that appel-lee sustained a compensable injury, appellant insists that benefits should be denied appellee on the ground that the medical history given in his application for employment was false.

It is undisputed that appellee suffered a back injury in 1969 and that the injury was not shown on appellee’s application for employment. To the contrary, the question whether appellee ever had “had any heart or back trouble of any kind?” was checked “no.” In explanation of the answer, it was shown that appellee can neither read nor write, except for his name. Of necessity then, his application for employment was completed by someone other than himself— in this instance a daughter-in-law. Appel-lee testified that he gave no information to his daughter-in-law other than the last place of employment, and that he did not know the questions on the application nor the answers given the questions. Appellee took the application, which was unsigned, to Mr. Bill Akers, the personnel director for Laminite Plastics. Mr. Akers asked appel-lee several questions about his application, but made no inquiry as to appellee’s medical history, even though the medical history was material to employment and appellee was known to be uneducated.

On the issue of causal connection, the evidence shows that appellee recovered from the 1969 injury to the extent that he was able to perform such tasks as climbing a ladder and painting, preparing and cultivating a vegetable garden, household duties of all kinds, and the performance of general custodial duties, without any physical difficulty, during the two years he was employed by the Giant Food Store before being employed by appellant. The treating physician found nothing unusual about ap-pellee’s lumbar spine. The arthritic condition was to be expected in a man sixty-nine years of age, who worked all his life at manual labor. The surprising thing was that appellant would assign a sixty-nine year old man to a task where he was called upon to do repetitive lifting, stooping, and bending. The examining physician testified he had no opinion as to whether or not there was a causal relation between appel-lee’s injury of 1969 and that of 1976; that he was “unaware of where [appellee] worked either time or what he was doing either time. All [appellee] told [him] was he was injured on the job each time.”

In Federal Copper & Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn.1973), this court held that three factors must be present before a false statement in an employment application will bar recovery of workmen’s compensation benefits. First, the employee must have knowingly and wilfully made a false representation as to his physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hearing. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workmen’s compensation claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer. See Federal Copper & Aluminum Company v. Dickey, supra. Except in the most obvious cases, such causation must be established by expert medical testimony. Daniels v. Gudis Furniture Co., 541 S.W.2d 941 (Tenn.1976).

The trial judge concluded there was no causal connection between the prior injury and the one that appellee sustained while working for appellant, and awarded appel-lee benefits for disability resulting from the latter injury. As to the other factors, the trial judge made no finding, nor was he asked to do so. In our opinion there is material evidence in the record to support the trial judge’s finding on the issue of causal connection.

Judgment affirmed. Costs are adjudged against the appellant, Laminite Plastics, Incorporated.

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


author: NEARN, Judge.

text:
    CONTINENTAL BANKERS LIFE INSURANCE COMPANY OF THE SOUTH, INC., Appellee, v. James G. SIMMONS, Appellant.
    Court of Appeals of Tennessee, Western Section.
    Aug. 31, 1977.
    Certiorari Denied by Supreme Court Dec. 5, 1977.

      George 0. Benton, Jackson, for appellant.
    Russell Rice, Jackson, for appellee.
   NEARN, Judge.

Plaintiff, before it changed its name to Continental Bankers Life Insurance Company, was known as Peoples Protective Life Insurance Company and is often referred to in the record as P.P.L.I. At the outset it must be recognized that Continental and P.P.L.I. are one in the same corporate entity. P.P.L.I. was one of several subsidiaries of, and controlled by the parent, Peoples Protective Corporation. Among the subsidiaries of the controlling corporation was a corporation known as Sugar Tree Resort, Inc. Well-nigh total identity of officers and directors prevailed among the three corporations.

Defendant Simmons was engaged in the general insurance business in Jackson, Tennessee and among his best customers was the Peoples Protective conglomerate.

In May of 1975 P.P.L.I. (now known as Continental) filed suit in the Chancery Court of Madison County against Simmons for a deficiency on a note executed by Simmons. The note was in the original amount of $87,500.00, dated November 9, 1973, and secured by real property in the Sugar Tree Resort area along the Tennessee River. The complaint charged that after allowing credit for the foreclosure sale, there remained a balance due of $42,138.87 for which judgment was sought plus accrued interest and a reasonable attorney’s fee.

At this point a slight digression is required for an understanding of the matter. Prior to Simmons’ execution of the before mentioned note, the Peoples Protective conglomerate had fallen upon or, probably more accurately, had caused itself to fall upon hard financial times. Subsequent to the signing of the note, financial conditions worsened and the parent corporation (Peoples Protective Corporation) found it necessary to transform its holdings to cash. The Peoples Protective Life Insurance Company was probably the most financially appealing Tennessee holding of Peoples Protective Corporation. The parent corporation held all of the stock in P.P.L.I. This stock was sold to Joe Jack Merriman who, at the time of trial, was the majority stockholder of former P.P.L.I. This was not a sale of the assets of P.P.L.I., but simply a sale of stock by a controlling stockholder. Merriman changed the name of the corporation to Continental. Included among the assets of the corporation was the Simmons note now sued upon. Thus, it may be seen that Continental is not an innocent holder for value of a negotiable instrument. Continental (formerly P.P.L.I.) and Simmons are principals to the instrument and it has never been negotiated to a third party.

Defendant Simmons filed his answer and raised equitable defenses to the note. Among them was the charge that the transaction was a sham, conceived in fraud and that it suffered from a failure of consideration.

The Chancellor was of the opinion that the case should rest on legal principles alone and awarded judgment for the proven deficiency, plus interest, reasonable attorney’s fees and costs.

Both sides to the controversy have appealed.

We will consider first the Assignment of Error of plaintiff Continental.

Since Continental was the successful litigant below, its appeal is in the nature of a deployment of reserve troops, that is, should its adversary be initially successful in its attack of the'-judgment below, the reserves are to be thrown into the breach. Additional facts necessary for consideration of Continental’s appeal are that the late William H. Hall was the initial hearing Chancellor of this matter. A motion for summary judgment was filed by Continental. Chancellor Hall filed a “Memo Opinion” in which he stated his reasons for the granting of a summary judgment. Chan-, cellor Hall died before a formal order could be signed. The succeeding Chancellor declined to enter an order based on the “Memo Opinion” and set the summary judgment motion for a rehearing whereupon he overruled the motion.

Counsel for appellee insists that the “Memo Opinion” is actually an order sustaining the motion for summary judgment and the succeeding Chancellor was therefore without authority to reverse the prior Chancellor’s holding. The issue is moot. The matter is now before this Court on a record completed from a hearing on all the facts of the case. The most that could be said is that we have too much record to decide whether there is any disputed material issue of fact. Under T.C.A. § 27-303 this is a de novo appeal and we have suffered no hindrance or impediment to our decision by the act of the succeeding Chancellor.

Continental’s Assignment of Error is overruled.

We now consider the Simmons appeal.

P.P.L.I. held a mortgage on undeveloped resort lots owned by its sister subsidiary Sugar Tree. In early 1973 and 1974 Peoples Protective Corporation (the parent company) and Sugar Tree were financially pinched. Sugar Tree held a public auction and sold certain resort lots on which P.P. L.I. held the mortgage. The lots did not bring enough to pay off the mortgage. P.P.L.I. was therefore left with an outstanding and now unsecured, unpaid and uncollectible indebtedness upon its books. The end of 1973 was then approaching and P.P.L.I. was required by law to file a year-end statement with the State Department of Insurance. Somehow P.P.L.I. had to satisfy this unpaid debt of Sugar Tree to avoid showing it as a non-admitted asset on the insurance report. Such adverse showing on the report would constitute an impairment of capital and result in a cease and desist order from the Insurance Commissioner.

The clear brief of counsel for Continental sets forth the virtually undisputed facts honestly and succinctly. With little addition thereto we set forth those facts as found in the brief.

The then officers of P.P.L.I. persuaded defendant Simmons to join them in a scheme whereby (1) Sugar Tree Resort, Inc. would deed to Simmons eleven of the remaining lots in the Sugar Tree Resort area; (2) Simmons would then borrow from P.P. L.I. $87,500.00 giving a trust deed on the eleven lots referred to; (3) Simmons gave to Sugar Tree Resort, Inc. a three year option to repurchase the eleven lots at the same price they were “sold” to Simmons; (4) Simmons then paid $87,500.00 to Sugar Tree Resort, Inc. as purchase price for the eleven lots; (5) Sugar Tree Resort, Inc. then paid to P.P.L.I. the sum of $71,500.00 for which payment P.P.L.I. released its note and mortgage on the property already auctioned off by Sugar Tree Resort, Inc.

The method of handling had the following results: (a) James G. Simmons wound up as owner of the fee of the eleven lots deeded to him which he continued to own until foreclosed by P.P.L.I.; (b) Sugar Tree Resort, Inc. was enabled to extricate itself from the predicament of having sold mortgaged property; (c) P.P.L.I. paid out $87,-500.00 cash which unquestionably would be an admitted asset; (d) P.P.L.I. received back from Sugar Tree Resort, Inc. payment of $71,500.00 for which it surrendered its note and trust deed of Sugar Tree Resort, Inc. on the property already auctioned off by Sugar Tree Resort, Inc.; (e) P.P.L.I. wound up with the note and trust deed of Simmons for $87,500.00 which on the face of it would be an admitted asset while, if the loan had been direct to Sugar Tree Resort, Inc., it would be a non-admitted asset; (f) Simmons, by participating in this arrangement, helped keep a large customer in existence and in business by thus “pulling the wool” over the eyes of the Tennessee Department of Insurance.

Now we must part from counsel for Continental’s brief; for while we commend him upon the form of his brief and the manner in which a rather complicated scheme (evidently based upon the philosophy that the ends justify the means) has been reduced to understandable terms, we must differ with both counsel for appellant and the Chancellor on the law to be applied to those facts.

As may now be seen, these Machiavellian machinations of P.P.L.I., Peoples Protective Corporation, Sugar Tree and Simmons were conceived in fraud and hatched out in the heat of self interest and scheming illegality. As a corporation, Sugar Tree needed prompt relief from the precarious position of having sold mortgaged property. This relief could be obtained by paying off the mortgage. Neither Sugar Tree nor its parent corporation had the funds with which to supply that relief. P.P.L.I. was the most solvent of the conglomerate holdings. However, being an insurance company and subject to scrutiny by the Insurance Commissioner, it was in no position to make unsecured loans to Sugar Tree or to forgive the indebtedness and release the security. Simmons was then called in and matters explained to him. Because Simmons received a large portion of his insurance business from these enterprises, he agreed to the paper transaction as he was aware that he would profit from the continued existence of the Peoples Protective conglomerate. The effect of the “deal” was to inject Sugar Tree with a temporary financial transfusion from P.P.L.I. so as to obtain a release of the mortgages on the auctioned property, yet give Sugar Tree an opportunity to re-acquire the eleven lots at the price conveyed to Simmons. The fait accompli used Simmons as a willing straw man, or conduit, in order to hide the true undertaking from the Insurance Commissioner. A disclosure of the actual transaction would no doubt have ended in closing the doors of P.P.L.I.

What has happened is that the scheme went awry and now one conspirator desires to use the Courts to collect from the other conspirator. The Court should not be so used.

We are of the opinion that the Chancellor erred in failing to apply equitable principles to the case. True, a suit on a note, even though filed in the Chancery Court, is not a matter of an inherently equitable nature and ordinarily equitable principles would not be applied; but, when equitable defenses are raised by answer, the matter is transformed into an inherently equitable one. Had the suit been originally filed in the Circuit Court and equitable defenses raised, it could have been tried in the Circuit Court on equitable principles if no objection were raised, or else it could have been transferred to the Chancery Court for trial. See Gibson’s Suits in Chancery, 5th Ed., § 36; T.C.A. § 16-511. Once defenses of an equitable nature are raised in the Chancery Court, even if the suit is one at law, applicable equitable principles will be the building blocks of the Court’s decision.

This matter reaches us for a de novo review under T.C.A. § 27-303 and we will apply equitable principles.

The briefs argue pro and con on the application of the doctrine of estoppel. Numerous cases are cited to us where the doctrine of estoppel has or has not been applied to a party, e. g., Molloy v. City of Chattanooga (1950) 191 Tenn. 173, 232 S.W.2d 24 with Petition to Rehear at page 404; McConnell v. McCleish and Thomas (1929) 159 Tenn. 520, 19 S.W.2d 251; Moore v. Carter (1954 M.S.) 38 Tenn.App. 603, 277 S.W.2d 427; Southern Railway Co. v. Lewis (1917) 139 Tenn. 37, 201 S.W. 131. These cases are not in point, as they all deal with a one-sided phase of the doctrine, which is usually applied when one person is ignorant of the true facts and the other is not and the one who has superior knowledge causes the other to act on false information. When such is the case, the deceiving party, the one guilty of inequitable conduct, is said to be estopped to show the true facts.

There is another type of estoppel. A double barrelled variety. It is applied where both parties are guilty of inequitable conduct. When such is the case, both parties are estopped to show any facts upon which relief can be predicated. It is sometimes called the doctrine of “clean hands” and has been defined as:

The principle is general, and is one of the maxims of the Court, that he who comes into a Court of Equity asking its interposition in his behalf, must come with clean hands; and if it appear from the case made by him, or by his adversary, that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he will be repelled at the threshold of the court. C. F. Simmons Medicine Co. v. Mansfield Drug Co. (1893) 93 Tenn. 84, 23 S.W. 165.

None of the parties to the fraud can have the assistance of the Court to compel either the enforcement or cancellation of the contract or to have property interests transferred thereunder restored. Equity will leave such parties where they have placed themselves, and will refuse all affirmative aid to either of the fraudulent parties. Gibson’s Suits in Chancery, 5th Ed., § 51; Parks v. McKamy (1859) 40 Tenn. 297.

The facts of this case require the application of the doctrine with the result that the decree below is reversed and the complaint dismissed with costs below and on appeal assessed equally between the parties.

By designation of the Supreme Court of Tennessee, Honorable W. E. Quick, sitting for Presiding Judge C. S. Carney, and Honorable Joe C. Morris, sitting for Judge Kirby Matherne, took part in the hearing of this appeal.

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

QUICK and MORRIS, Special Judges, concur.

      . Eventually, Peoples Protective Corporation and its subsidiaries, save P.P.L.I., filed in bankruptcy.

      . Again, we note that the stockholders and directors of Continental are not the same as those of P.P.L.I., but such fact in no way relieves the corporation, a separate entity, from its responsibility for its action made under previous directorship and under another name. Once corporate existence has begun, even though, as here, the stockholders, directors, and corporate name may1 change, the corporation retains the same rights, liabilities, and responsibilities until dissolved.