text:
    Catherine PEARSON, Appellant, v. Willis W. PEARSON, Respondent.
    No. 40273.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 28, 1978.
    London, Greenberg & Fleming, Burton M. Greenberg, St. Louis, for appellant.
    James A. Greenblatt, Clayton, for respondent.
   CLEMENS, Judge.

Plaintiff-wife has appealed the child-custody portion of a dissolution decree awarding defendant-father primary custody of the parties’ two minor children aged nine and five.

Although plaintiff challenges the sufficiency of the evidence, a detailed recitation thereof is unnecessary. There was ample testimony concerning the parties’ relative fitness as custodial parents. Various accusations were leveled by each party. Plaintiff’s evidence was that defendant drank heavily, associated with other women and acted violently toward both his wife and children. Defendant denied this and submitted evidence that plaintiff was suicidal, placed her needs above those of the children, and was violent in conduct toward both the children and defendant.

The children’s welfare is the overriding consideration in cases involving custody. Section 452.375, RSMo. 1969; In re Marriage of L, 548 S.W.2d 262[3] (Mo.App.1977). Plaintiff relies on certain “presumptions” which have arisen to assist the court in making a determination. One such presumption is that the mother makes the best custodial parent for a child of tender years. J.A.F. v. P.J.F., 552 S.W.2d 739[3] (Mo.App.1977). These presumptions however are not conclusive. In re Marriage of Millsap, 559 S.W.2d 69[6] (Mo.App.1977). They operate only to assist the court in making its determination and do not preclude consideration of other factors as to how the child’s interests might best be served. Section 452.375, RSMo. 1969: Millsap, supra. If it appears the child’s best interest would not be served by following the presumption, the court will consider other relevant factors.

Supreme Court Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30[1] (Mo. banc 1976) limit our review. To justify reversal, we must find the trial court’s decision has no substantial evidence to support it, goes against the weight of the evidence, erroneously declares or applies the law. Murphy, supra. Measuring the decree in the light of the record as a whole, we find none of these reversible factors to be present and conclude the trial court did not disregard the children’s well-being.

As we held in Moore v. Moore, 429 S.W.2d 794[6] (Mo.App.1968): “In child custody cases the trial judge rarely enjoys the luxury of deciding between a good choice and a bad one. More often he must make a decision between two poor choices or, almost as difficult, between two satisfactory choices. His decision is often influenced by the character of the parties and by their witnesses — factors more apparent to him than to us. The rule of appellate deference to trial court decisions is unassailably sound.” See also Smith v. Smith, 435 S.W.2d 684[1] (Mo.App.1968).

Decree affirmed.

REINHARD, P. J., and GUNN, J., concur.


source: Caselaw Access Project

author: HOGAN, Presiding Judge.

license: Public Domain

text:
    Beverly Sue SKINNER, Claimant-Appellant, v. DAWSON METAL PRODUCTS and Aetna Casualty & Surety Company, Employer-Insurer-Respondents.
    No. 10474.
    Missouri Court of Appeals, Springfield District.
    Dec. 29, 1978.

      L. R. Magee, Hines & Magee, Kansas City, for claimant-appellant.
    Kelly Pool, Hendren & Andrae, Jefferson City, for employer-insurer-responderit.
   HOGAN, Presiding Judge.

This is a workmen’s compensation case. Beverly Sue Skinner (claimant), a female 29 years of age, made a claim for compensation for injury sustained by accident, a series of accidents or occupational disease arising out of and in the course of her employment. After a hearing, a referee denied an award. Upon appeal, the Labor and Industrial Relations Commission (Commission) reversed the award and allowed compensation as follows: $1,080.00 for temporary total disability; $25.00 for necessary travel and $398.51 for medical treatment rendered by claimant’s family physician. The aggregate amount of the award is $1,503.51. On appeal, the Circuit Court of Camden County reversed the Commission on the ground that the employer and insurer received no timely notice of a potentially compensable injury and that the period of limitation prescribed by § 287.430, RSMo (1969), V.A.M.S., had run. Claimant appeals.

The issues presented can best be appreciated by stating some elementary principles. The findings of the referee are in no wise binding upon the Commission; the Commission reviews the record, determines the credibility of the witnesses and the weight to be given their testimony, resolves any conflicts in the evidence and reaches its own conclusions independently of the referee’s findings. Begey v. Parkhill Trucking Co., 546 S.W.2d 529, 532 (Mo.App.1977); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 287 (Mo.App.1968). It is the award of the Commission, not the finding of the referee, which we review, Michler v. Krey Packing Co., 363 Mo. 707, 716, 253 S.W.2d 136, 140 (banc 1952); McAdams v. Seven-Up Bottling Works, supra, 429 S.W.2d at 287, and we are required to construe the whole record in the light most favorable to the findings and award of the Commission; when the evidence and inferences are conflicting, resolution rests with the Commission and that resolution is conclusive on the reviewing court. Bradshaw v. Richardson Trucks, Inc., 467 S.W.2d 945, 947 (Mo. banc 1971); Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306, 307-308 (Mo.1970). And, as a limitation and restriction upon the scope of this opinion, we may again note that the only issues for consideration on any appeal are those presented in the “points relied on” part of the appellant’s brief; questions not there presented are considered abandoned. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405 (Mo.1964); Drysdale v. Cornerstone Bank, 562 S.W.2d 182, 183 (Mo.App.1978); MFA Cooperative Ass’n of Ash Grove v. Elliott, 479 S.W.2d 129, 132-133 (Mo.App.1972).

The claimant’s first point is that the trial court erred in reversing the award of the Commission on the ground that the claim was barred by limitation because that finding is contrary to the law and the evidence and the trial court substituted its judgment for that of the Industrial Commission. The employer and insurer respond by contending that the claim was barred by limitation because it was not filed within one year of the date of the alleged occurrence.

In brief sketch, and recited in accord with the general principles stated, the Commission could have found that on June 12,1972, Dawson Metal Products constructed and supplied air conditioning parts to various purchasers. The claimant was employed as a welder. At the time she sustained her injury, claimant was welding an object identified only as a “bubble for Chrysler.” The bubbles were “made funny” so they did not fit properly on a welding table. It was therefore necessary to put the bubble on the table “upside down.” The claimant sat on a five-gallon lard can and worked underneath the bubble. Using a torch, sunglasses, a “solder” and “Blue Label” flux, claimant welded copper surfaces of some kind.

The claimant maintained that the ventilation was inadequate. Whether it was or not, the welding process produced noticeable vapors or fumes. The fumes were strong and claimant developed a headache above the bridge of her nose through her forehead up to her hairline. Claimant had not had those particular headaches before. She consulted her family physician, a Dr. Ridgeway, but continued working, welding the copper parts. Claimant thought she “. . . was getting something in [her] eyes.” She “. . . thought [she] had got some metal or something” in her right eye. Claimant’s left eye was not affected.

On June 15, while she was welding “Chrysler bubbles,” claimant lost the sight of her right eye. She informed her foreman, Earnie. Earnie “let [claimant] weld a while longer” and then permitted claimant to inspect parts, but claimant “couldn’t see the parts good enough to inspect them.” Claimant told Earnie she could not continue because she “simply couldn’t see” the parts. Earnie drove the claimant to the claimant’s husband’s office.

The claimant went directly to see Dr. Ridgeway, her “family doctor.” Dr. Ridge-way, a board-certified practitioner of family medicine, prescribed an antibiotic, a steroid and a nasal decongestant. Dr. Ridgeway testified that he had seen claimant on May 6. Claimant told him she had been welding; when she welded with a particular compound — “blue flux or whatever” — the compound would irritate her nose and eye. The doctor instructed claimant to change jobs. When Dr. Ridgeway saw claimant on June 10, her complaints were exacerbated; therapy was intensified, but claimant did not immediately respond.

After claimant lost the sight of her right eye, Dr. Ridgeway referred her to a Dr. Prater, a board-certified ophthalmologist. Dr. Prater examined claimant. He found no impairment of visual acuity in claimant’s left eye; claimant was limited to the perception of hand motion in her right eye. Dr. Prater found a “large central scotoma” in the right eye, which indicated a loss of vision, primarily in her right eye. The doctor’s diagnosis was retrobulbar neuritis of the right eye. The usual treatment for that ailment is oral steroids, which were prescribed. Claimant was improved on June 28. By August 14, claimant showed marked improvement. Dr. Prater did not see the claimant again until 1974.

The claimant returned to work in October 1972. Claimant “had vision enough to return to work but it was never the same as it had been before.” Claimant returned to Dawson as a parts inspector and eventually began work as a welder. Claimant welded “Chrysler bubbles” only once after she returned to her employment. Her headaches immediately returned. Claimant left Dawson’s employ in 1973. Her testimony, repeated and reiterated, was that she had some loss of vision in her right eye. The Commission found some impairment of claimant’s vision before June 12, 1972; found that she had made a good recovery after treatment, and denied an award of compensation for permanent partial disability. Except for medical treatment in the amount of $398.51, and travel expenses in the amount of $25.00, the whole amount awarded represents an allowance for a healing period of 15⅜⅞ weeks at $70.00 per week. Computation of the award is not challenged; no claim for credit for payments is advanced, and it does not appear that any such claim was made before the Commission. Such, capsulized, are the general background facts as the Commission might have found or fairly inferred them to be.

The finding of the Commission upon the first issue tendered is indeed a very general finding, but the Commission is not required to elucidate its reasoning process in the absence of a request to do so, Scott v. Wheelock Bros., 357 Mo. 480, 485, 209 S.W.2d 149, 152 (banc 1948), and contrary to the view taken by the trial court, a general award necessarily implies the finding of every fact necessary to support it, including that of good cause or lack of prejudice under § 287.420, RSMo (1969), Y.A.M.S. Reichert v. Jerry Reece, Inc., 504 S.W.2d 182, 188 (Mo.App.1973). Also, with deference to the trial court, we believe it misconstrued the nature of the applicable statute of limitations. We cordially agree that the construction of a statute is a matter of law for a court, but in this instance the statute has been authoritatively construed, and we are firmly held and bound by that construction. In 1943, in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852 (1943), and again in Welborn v. Southern Equipment Company, 395 S.W.2d 119 (Mo. banc 1965), our Supreme Court held that § 287.430, RSMo (1969), is merely a statute of repose; the running of the period does not extinguish the remedy and payment made on account of the injury in the form of medical aid may either toll the running of the statutory period or revive the claim and right of action if made after the statutory period has run. Welborn v. Southern Equipment Company, supra, 395 S.W.2d 123-125.

This record presents several bases for holding that the employer and insurer had notice of a potentially compensable injury and that the claim was timely filed. We shall discuss two such bases briefly.

The precedents cited by the claimant on appeal, e. g., Smith v. Plaster, 518 S.W.2d 692 (Mo.App.1975), and Snow v. Hicks Bros. Chevrolet, Inc., 480 S.W.2d 97 (Mo.App.1972), hold, inter alia, that notice of a potentially compensable injury acquired by a supervisory employee is imputable to the employer. Moreover, as this court attempted to make clear in Smith, supra, 518 S.W.2d at 699, the employee’s recovery of compensation is not predicated upon the employer’s opinion or persuasion that the injury was compensable, prior to administrative determination. All that is required is actual timely notice or knowledge of a potentially compensable injury. Smith, supra, 518 S.W.2d at 699.

The record evidence supports a finding that the employer had actual notice and knowledge of a potentially compensable injury. On June 15, or thereabout, claimant lost the sight of her right eye while she was welding or soldering copper. Claimant had not complained immediately after she developed a headache earlier, because she thought she “. . . was getting something in [her] eyes . . . [and] whatever it was . . . would wash . out eventually.” Nevertheless, claimant testified that Earnie “had been there a long time and . . . knew about the fumes”; claimant and Earnie had discussed the defective ventilation, and when Earnie welded, “she wore a mask a lot of times." The employer and insurer now characterize this testimony as “self-serving” and argue it was not worthy of belief. Their objection on trial was that claimant’s testimony about Earnie’s knowledge was hearsay; perhaps it was, but the claimant was permitted to answer without a motion to strike, and consequently claimant’s conclusions as to what Earnie knew and appreciated were before the Commission for its evaluation. Ashley v. Williams, 365 Mo. 286, 293, 281 S.W.2d 875, 880 (1955); Brown v. Krey Packing Company, 271 S.W.2d 234, 287[1] (Mo.App.1954). Moreover, when claimant left the employer’s plant on June 15, she had gone blind, in one eye while on the job and so informed Earnie. This is considerably different from merely “calling in sick” which is what happened in Basil v. Cyr, 130 F.Supp. 642 (W.D.N.Y.1954), cited by the employer and insurer.

The record leaves no doubt about Earnie’s supervisory capacity. It is infera-ble from the testimony of witness Ron Solt, the employer’s “comptroller” that Earnie was a “supervisor” and unnumbered exhibits introduced as part of an entire file offered as Employer and Insurer’s Exhibit 1 indicate that Earnie supervised claimant's training and progress after she was hired by the employer. Upon the evidence recited, there was a reasonable basis for the Commission’s finding that the employer had actual notice of claimant’s injury. Conflicting conclusions or inferences may have been permissible, but if so the Commission had a choice, just as it did with the credibility of the witnesses and the weight to be given conflicting testimony. Shrock v. Wolfe Auto Sales, Inc., 858 S.W.2d 812, 815 (Mo.1962).

Our decision need not rest upon the conclusion that the employer had actual notice of a potentially compensable injury. Claimant testified that a short time after she became blind in her right eye, she made a claim for benefits in the office of a Mr. Citek, the employer’s personnel manager. This claim was made under the employer’s health insurance plan. The application for benefits was filled in by Mr. Citek, or so the Commission could have found, and claimant signed it. The employer and insurer attach considerable effect to this exhibit, but our inspection of a copy of the application shows only that the question “Was an accident involved”? is answered “No.” Claimant testified she told Mr. Citek “I received this injury, what do you do”? Mr. Citek said “You fill out this paper, I will fill it out and you sign it and we [will] get your weekly benefits.” Claimant thought she was “supposed to get some like everybody else” because she was “off work.” Claimant was aware she was not being paid workmen’s compensation. Claimant also testified that she was wholly unfamiliar with the Workmen’s Compensation Law. Claimant did tell Mr. Citek she had lost the sight of her eye. Inferably, Citek said nothing about workmen’s compensation at any time.

The Commission found as facts that claimant signed the application for benefits, that the application stated' her condition was not work-related, but that claimant merely “went along” with the personnel manager’s suggestion that she file a claim under the employer’s health insurance plan. Our scouring of the record discloses no justification for the finding that claimant’s application for benefits stated her injury was not “work-related”; the form was completed by the employer’s personnel manager, and claimant and her physicians — Dr. Prater had seen her once — were unsure of the cause of her injury. So, although it is of little consequence to our holding, it may be stated that the record discloses no substantial factual basis for the Commission’s conclusion that claimant “stated” or “admitted” that her loss of vision did not arise out of and in the course of her employment.

In any case, the record shows that benefits in the amount of $585.00 were paid to claimant between June 16, 1972, and September 22,1972. The employer’s records do not indicate payment to any person other than claimant. However, claimant testified without objection that Dr. Ridgeway, Dr. Prater and another physician had been paid at least in part before she left Dawson’s employ on June 23, 1973. Dr. Prater testified that he saw claimant the last time for treatment on August 14, 1972. It is thus quite plain that the employer’s health insurer made payments “on account of the injury” within the meaning of § 287.430, RSMo (1969), well into September 1972. The claim for compensation, which the employer and insurer say was barred by limitation, was filed with the Division of Workmen’s Compensation on July 5, 1973. The date of the accident could not reasonably be fixed later than June 15, 1972.

As noted, the applicable statute of limitations is a statute of repose. The statutory period is subject to being tolled, of course, by any payment made on account of the injury. Reichert v. Jerry Reece, Inc., supra, 504 S.W.2d at 189; Smith v. Home Building Contractors, Inc., 363 S.W.2d 11, 15-16 (Mo.App.1962). The rationale of such tolling has been developed lucidly and extensively in Reichert, supra, 504 S.W.2d at 188-189, and in Snow v. Hicks Bros. Chevrolet, Inc., supra, 480 S.W.2d at 103-104, cited by claimant, but the idea is not new. Forty-five years ago, when McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911 (1933), was decided, the period limited for filing claims was six months. The employer and insurer there raised the bar of limitation, maintaining that the claimant’s written claim for compensation had been filed one day late. The employer had paid all or part of a treating physician’s bill through an attorney. The court held such payment tolled the running of the statute. Interestingly, in McFall, supra, and in Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130 (1932), the employer and insurer advanced the argument that payment should not toll the statute because the payment was not intentionally made as workmen's compensation. In both cases, our Supreme Court held the employer’s undisclosed intent was wholly irrelevant. There is nothing in the record before us which compels the conclusion that the employer intended to deny liability before its answer was filed, much less that it conveyed any such intent to the claimant. It is fairly inferable that payment to one of the physicians who treated claimant was made after August 14, 1972, and the employer’s own records show that payment was made to the claimant as late as September 22, 1972. The written claim for compensation was received in the office of the Division of Workmen’s Compensation July 5, 1973. The statute of limitations was tolled by payment on account of the injury, the claim for compensation was timely filed and the employer and insurer’s argument that the claim is barred by limitation is wholly without merit.

Most of the transcript before us consists of medical testimony. The employer and insurer’s principal argument before the Division of Workmen’s Compensation, and apparently before the Commission, was that the evidence demonstrated no correlation between the claimant’s employment and the disease which reduced the visual acuity of her right eye. Claimant’s argument here, as stated, is that “[T]he award of the Industrial Commission [sic] is supported by competent and substantial evidence in [sic] the whole record and should be reinstated.” The employer and insurer’s reply is that the award of the Labor and Industrial Relations Commission is not supported by competent evidence and compensation should be denied claimant [because] claimant’s sinus condition predated the employment activities upon which her claim is founded.

It is readily inferable from the record that the welding process in which the claimant engaged produced fumes. After she had worked several days welding copper surfaces, using a flux known as “Blue Label Sil Flux,” claimant developed sharp headaches which radiated upward from the bridge of her nose to her hairline. A few days later, she became completely blind in her right eye. Her condition was subsequently diagnosed as retrobulbar neuritis. Dr. Prater described this disease in this language:

“Retrobulbar neuritis infers an inflammatory process of some nature that occurs along the optic nerve, that is not visible by looking at the head of the optic nerve on examination so it is made by inference. Since there is a central scoto-ma in [sic] visual loss the inflammation, therefore, is somewhere behind the eye along the optice nerve before it reaches the brain.” [R. 145],

Asked to give the causes of claimant’s disease, Dr. Prater responded (emphasis supplied):

“Retrobulbar neuritis is poorly understood and to give you exact causes would be difficult. I think infection or inflammation of any type, particularly in an adjacent structure, which would be a sinus, could be a cause ... I think that it also can be caused by toxic agents, particularly the type that may be taken by mouth. I think there are also several neurological diseases which can cause this retrobulbar neuritis and the most outstanding would be multiple sclerosis.”

At the hearing before the referee, the employer and insurer had the testimony of a Dr. Lewin, an ophthalmologist practicing in St. Louis. Dr. Lewin has impressive professional credentials, which the employer and insurer were at some pains to include in the record. Dr. Lewin testified that retro-bulbar neuritis can be caused by “many, many different factors” and referred to a standard treatise, which lists two or three pages of causes for the disease. Dr. Lewin was extensively examined and cross-examined; the substance of his testimony was that it was unlikely that the fluoride vapors produced by welding with Blue Label Sil Flux had been the cause of claimant's disease. Dr. Lewin added, several times, that he could not be certain why claimant developed retrobulbar neuritis.

Dr. Ridgeway, claimant’s family physician, was more affirmative about the cause of claimant’s condition. If we have not, we should have noted that Dr. Ridgeway saw and treated claimant during the time she was suffering from retrobulbar neuritis although he seems to have relied on Dr. Prater for expert advice. In response to a hypothetical question, Dr. Ridgeway gave it as his opinion that the claimant welded with an irritating material and consequently suffered an acute sinusitis with resultant retrobulbar neuritis and loss of vision in the right eye.

The Commission found that claimant contracted an occupational disease as a result of exposure to irritant fumes. Seizing upon the language of Liebrum v. Laclede Gas Company, 419 S.W.2d 517 (Mo.App.1967), the employer and insurer argue vigorously that both sinusitis and retrobul-bar neuritis, are “ordinary diseases of life" and the aggravation of such diseases does not create a compensable occupational disease. As recognized in Collins v. Neevel Luggage Manufacturing Company, 481 S.W.2d 548 (Mo.App.1972) and Gaddis v. Rudy Patrick Seed Division, 485 S.W.2d 636 (Mo.App.1972), the terms “ordinary disease of life” and “occupational disease” are not necessarily mutually exclusive, but we do not propose to reexamine the rationale of the decisions distinguishing the two. What the medical evidence vividly demonstrates here is that the etiology of retrobulbar neuritis is obscure. Attribution of claimant’s retrobulbar neuritis to the hazards of everyday life or to a risk or hazard inherent in the claimant’s work conditions depended,' in this case, upon the acceptance or rejection of conflicting medical opinions or theories. Therefore the question whether or not claimant developed an occupational disease was an issue peculiarly for the determination of the Commission. Vollmar v. Board of Jewish Education, 287 S.W.2d 868, 872[4] (Mo.1956); Hawkins v. Nixdorff-Krein Mfg. Co., 395 S.W.2d 247, 251 (Mo.App.1965); Greer v. Missouri State Highway Department, 362 S.W.2d 773, 778-779[4] (Mo.App.1962). Dr. Ridgeway’s opinion constituted substantial and competent evidence that claimant developed an occupational disease. Greer v. Missouri State Highway Department, supra, 362 S.W.2d at 779[7].

For the reasons stated, the judgment of the trial court should be reversed and the award of the Labor and Industrial Relations Commission should be reinstated. It is so ordered.

All concur.

      . The noun “flux” is used here to denote a substance applied to surfaces to be joined by soldering, brazing or welding to clean and free them from oxide and promote their union.

      . Earnie Allen, the foreman, is a female. Counsel refer to her as a “forelady.” At the risk of seeming insensitive to E.R.A. enthusiasts, we shall refer to Earnie as the foreman.

      . The noun “etiology” is used here to mean all of the causes of a disease or abnormal condition.


author: BEN F. PYLE, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Melba Jean WOOD, Defendant-Appellant.
    No. 10435.
    Missouri Court of Appeals, Southern District.
    Jan. 2, 1979.

      Henry S. Clapper, Monroe, Clapper & Randall, Monett, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   BEN F. PYLE, Special Judge.

Appellant, Melba Jean Wood, hereinafter referred to as defendant, was on March 8, 1976, convicted of burglary in the second degree by a jury in the Circuit Court of Lawrence County, Missouri, and ultimately sentenced to a term of two years imprisonment in the Missouri Department of Corrections.

Defendant’s only issue on appeal is whether the trial judge committed plain error by refusing to strike a certain venireman from the jury panel. Defendant claims that Juror Melvin Prewett should have been stricken for cause and the refusal to do so by the trial judge denied her the right to a full panel of qualified jurors before she made her peremptory challenges, and that she was obligated to use one of her peremptory challenges to remove Prewett from the jury.

The defendant claims that the trial court committed plain error in failing to grant her request to strike Prewett from the panel for cause because Prewett was a Missouri Conservation Agent, deputized and commissioned to enforce the wildlife and forestry laws of the State of Missouri, and was also the husband of a Deputy Circuit Clerk of Lawrence County, Missouri.

Prewett was sworn as a prospective juror and stated during the voir dire examination ' that he was employed by the Missouri Conservation Commission and that his primary job with the Commission was fish culture at the Chesapeake Hatchery. He further stated that he had been so employed in that capacity for 15 years. When asked by defendant’s counsel whether anyone on the jury panel was now carrying a Deputy Sheriff’s Commission, or any kind of law enforcement commission, Prewett stated, “I guess, well I have a commission to enforce the Wildlife Code.” He denied that having such a commission would prejudice him one way or the other in the case and would not cause him to give more or less weight to any of the testimony to be presented. In response to questioning by the defendant’s counsel, Prewett stated that the fact that his wife was a Deputy Circuit Clerk of Lawrence County would definitely not cause him to be prejudiced one way or the other in the case. This was the extent of the examination of Prewett by either side. Prior to the exercise of the peremptory challenges, counsel for defendant challenged Prewett for cause on the ground that he was a conservation agent and husband of a Deputy Circuit Clerk. This challenge was denied by the court.

There is no question that Prewett was employed by the Missouri Conservation Commission and that his duties all during that time were in the area of culturing fish. The record, however, is somewhat unclear as to whether he was or was not an authorized agent with any responsibility for actually enforcing the Wildlife Code. Assuming for the purpose of argument that he was an authorized agent, the court finds that the trial judge did not abuse his discretion in refusing to strike Prewett.

Defendant cites the case of State v. Butts, 349 Mo. 213, 159 S.W.2d 790 (1942), as authority for her contention that Prew-ett should have been struck for cause because he is an agent for the Missouri Conservation Commission. In that case the Supreme Court of Missouri held that it is bad practice to withdraw a police officer from the performance of his duties to fill a jury panel, and a police officer should in no case serve as a juror in a criminal case. In that case the prospective juror was a police officer on the Kansas City, Missouri, Police Department, and had been for the eight preceding years. The court pointed out that because the Chief of Police, who was his superior, and other police officers were material witnesses in the case, that the disqualification of the juror should not have been a debatable question and it was error for the trial court not to disqualify him.

Here the factual situation is completely different. Juror Prewett is not a police officer but an agent of the Conservation Commission. Actually, he is a law enforcement officer only in the narrow sense because he has only those limited powers conferred on him by § 252.080, RSMo 1969, V.A.M.S., which is the power to serve criminal process and to arrest only in such cases as are violations of the fish and game laws of this state and the rules and regulations of the Commission. He has no power as a law enforcement officer or police officer in respect to violations of the General Criminal Laws of this state. There is no showing, as in Butts, supra, that Prewett was in daily contact with crime or law enforcement or that he was in anyway acquainted with or knew any of the witnesses involved in this case. His only duty as employee or agent of the Commission for 15 years was in the culture of fish—not in the enforcement of the Wildlife Code. This court is of the opinion that the holding in Butts does not disqualify a conservation agent as a juror merely because he is such an agent. He stands on the same footing as any private citizen. In order to disqualify Prewett as a juror there must be some showing that he had a state of mind which would tend to show bias or prejudice against the defendant. Here the defendant does not allege nor does the record reflect any such state of mind on the part of Prewett. In fact, the record clearly shows that Prewett denied any prejudice on his part because he was an agent for the Commission.

The bare fact that a juror is. connected with law enforcement does not necessitate a finding that he would not be an impartial juror. State v. Wraggs, 512 S.W.2d 257[2, 3] (Mo.App. 1974); State v. Holliman, 529 S.W.2d 932[12] (Mo.App. 1975).

This court is of the further opinion that the fact that Juror Prewett was the husband of the Deputy Circuit Clerk of the County, either standing alone or in connection with his being a conservation agent, did not require that he be struck for cause.

The defendant claims that the failure to strike Juror Prewett for cause was plain error and resulted in manifest injustice to her under Rule 27.20(c), V.A.M.R. Defendant’s counsel, in oral argument, claimed that the trial court was without discretion in this matter since Prewett was a class of persons who must not be used as jurors. This is not a correct statement of the law. The trial court does have discretion in non-statutory disqualifications, and where there is no clear abuse of that discretion, then a proper exercise thereof is not plain error within the meaning of Rule 27.-20(c), V.A.M.R.; State v. Brauch, 529 S.W.2d 926[9] (Mo.App. 1975).

This court finds no manifest injustice resulted to the defendant for the failure of the trial court to strike Juror Prewett for cause, and the trial court did not abuse its discretion.

Finding no error, plain or otherwise, the judgment is affirmed.

FLANIGAN, P. J., STONE and TITUS, JJ., and KENNEDY and CAMPBELL, Special Judges, concur.


author: HARBISON, Justice.

text:
    Mary C. NORTHERN, Petitioner, v. STATE of Tennessee, DEPARTMENT OF HUMAN SERVICES, Respondent.
    Supreme Court of Tennessee.
    Feb. 14, 1978.
    Carol L. McCoy, guardian ad litem, in pro. per., Louis Farrell, Jr., Nashville, for guardian ad litem.
    William B. Hubbard, Deputy Atty. Gen., Patricia J. Cottrell, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

HARBISON, Justice.

This case is before the Court on petition for writ of certiorari from a final judgment of the Court of Appeals, Middle Section, entered on February 8, 1978.

The case arises under recent legislation designed to provide protective health care and related services to elderly persons, T.C.A. §§ 14-2301 et seq. Portions of the statute deal with the intervention of the Department of Human Services by filing a complaint in Chancery Court for authority to render protective services when an elderly person is in imminent danger of death and lacks capacity to consent to the services. The statutes require that such an application be given priority, and the chancellor is authorized to hear the matter in chambers or during a regular court session. The chancellor is authorized to appoint an organization or individual to be responsible for the personal welfare of such elderly person and to consent to protective services in his behalf.

The statute provides for notice and a hearing and contemplates close and continuous monitoring of such a case by the trial court. T.C.A. § 14-2307 expressly provides that either party “may move for review of the decree of the court at any time.”

While such cases are, of course, open to appellate review, the statutes clearly contemplate that proceedings thereunder should be administered primarily in the trial court.

The present proceedings were instituted by the Department of Human Services, alleging that the petitioner, Mary C. Northern, an elderly recluse, had been found living in deplorable and entirely unfit conditions, that her health had been impaired and that a serious condition of gangrene had developed in each of her feet. The petition contained the requisite allegations of lack of mental capacity, and sought an order of the chancery court appointing a responsible person or agency to give necessary consent for medical treatment, including amputation of the gangrenous feet of the petitioner, as recommended by her attending surgeons.

A guardian ad litem was appointed, and two evidentiary hearings were held in the chancery court. The statement contained in the brief of the guardian ad litem before this Court that she was never given an opportunity to present testimony or examine witnesses is not supported by the record. Understandably, all persons concerned with the matter were faced with an emergency, and many of the formalities surrounding an ordinary civil proceeding in the chancery court were apparently not insisted upon.

We have carefully examined the record before the Chancellor, however, and find that it contains material evidence to sustain his conclusions that the petitioner was in imminent danger of death and that she lacked sufficient capacity to understand her condition and make a reasoned decision about the recommended surgical procedures.

There is no conflict in the medical or psychiatric testimony, nor has the guardian ad litem or anyone else on behalf of the petitioner introduced any further medical or psychiatric testimony, to contradict that which was before the Chancellor when his final decree was made. No attempt has been made to have the Chancellor review his latest order or to introduce more complete or more current evidence before him. Instead the matter has been taken to the appellate courts, and their powers of super-sedeas and intervention have been invoked. In this Court the guardian ad litem challenges the sufficiency of the evidence and of the proceedings before the Chancellor.

It appears to us that the guardian ad litem could have produced additional proof before the Chancellor, if she had desired to do so, and could have made timely objections if she felt that more formal evidentia-ry proceedings were indicated. Her objections in this Court are not sustained by the record, and we do not deem it appropriate for this Court to interfere with the decree of the Chancellor. The case will be remanded to the chancery court, and, there, of course, the guardian ad litem will be free to make such applications to the Chancellor as she deems appropriate, under T.C.A. § 14-2307.

The guardian ad litem appealed the ruling of the Chancellor to the Court of Appeals. That Court affirmed, making certain modifications and imposing some additional restrictions to those contained in the decree of the Chancellor, to the end that surgery would not be performed unless and until deemed absolutely necessary as a lifesaving measure by the attending physicians.

Because it was asked to supersede the decree of the Chancellor, the Court of Appeals itself conducted an evidentiary hearing and received additional testimony. The guardian ad litem attacks the regularity of these proceedings, but we do not deem it necessary or material to discuss the same, because the proceedings before the Court of Appeals merely resulted in an amplification of the testimony, the findings and the medical conclusions which had already been expressed before the Chancellor.

The statutes in question appear to be carefully drawn, and no constitutional infirmity or lack of procedural safeguards has been demonstrated.

It is apparent that all persons concerned, including the Department, the guardian ad litem and the courts have sought diligently and conscientiously to act in the best interests of the petitioner, in a situation which is both sensitive and difficult.

In our opinion the entire case turns upon whether or not Miss Northern is or is not competent to understand and make a reasoned decision as to the proposed surgery. If she is not competent, then clearly the statutes authorize legal intervention and the appointment of a responsible person or agency to act for her. If she is mentally competent, the statutes are not operative. The uncontradicted psychiatric testimony, which was introduced by the guardian ad litem herself, is that she is not competent. The guardian ad litem has expresssed her personal opinion to the contrary, but she has offered no evidence, lay or expert, to that effect. She is understandably in a difficult position, because she necessarily has to attempt to carry out the expressed wishes of her ward, but courts can only act upon evidence, and in this area primarily expert testimony, and not impressions or reactions.

We have carefully considered the petition for certiorari, and all members of the Court have conferred at length concerning the same. We do not believe that upon the present record, any other conclusion can be sustained except that reached by the Chancellor. The assignments of error are overruled, the petition for certiorari is denied, and this cause is remanded to the chancery court for its monitoring and supervision. The order of the Court of Appeals will remain in effect unless and until the Chancellor sees fit to modify it upon receipt of further proof as to the condition and progress of the patient.

Costs accrued to date will be paid by the Department of Human Services.

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


author: HENRY, Chief Justice. HENRY, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Aaron Alfonso WILLIAMS, Respondent.
    Supreme Court of Tennessee.
    Dec. 4, 1978.
    Rehearing Denied Jan. 29, 1979.
    Brooks McLemore, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Sterling P. Gray, Asst. Dist. Atty. Gen., Nashville, for petitioner.
    Bart C. Durham, Tom Moon, Nashville, for respondent.
   OPINION

HENRY, Chief Justice.

This criminal action presents the single question of the sufficiency of so much of the verdict as relates to the sentence. The trial judge held the verdict to be sufficient and rendered judgment thereon fixing respondent’s punishment at confinement in the penitentiary for a period of not more than fifteen (15) years. The Court of Criminal Appeals affirmed the conviction but modified the trial court’s judgment by “fixing a determinate sentence of ten years as originally set by the jury.” We respectfully disagree with both courts.

I.

Respondent was convicted of murder in the second degree. Under § 39-2408, T.C.A., the punishment for this offense is fixed at imprisonment in the penitentiary “for life or for a period of not less than ten (10) years.” Until the passage of Chapter 768 of the Public Acts of 1974, our courts had held that the indeterminate sentence law was applicable to second degree murder. Rocket v. State, 480 S.W.2d 920 (Tenn.Cr.App.1972). By this enactment, the indeterminate sentence law was amended, and § 40-2707, T.C.A. now provides, in pertinent part:

The provisions of this section shall have no application in the case of persons convicted of murder in the second degree .; persons convicted of such offense[s] shall be given a determinate, and not an indeterminate sentence.

Thus, murder in the second degree is punishable by a determinate sentence of life or any number of years not less than ten, and the precise sentence, without qualification, and without upper and lower limits, is fixed by the jury. When a jury verdict provides for minimum and máxi-mums, it is not proper under the determinate sentence law. Judged by this standard each of the sentences fixed by the jury does not pass muster. We examine them.

II.

When the jury first returned into open court to announce its verdict the court reporter’s recording device was out of order. This portion of the trial is included in the bill of exceptions as a synopsis or narration stipulated by counsel. It shows that the first jury verdict found the respondent guilty of murder in the second degree and fixed his punishment at not less than ten years in the State Penitentiary.

Clearly, this was not a proper sentence under the determinate sentence law. It was facially vague and ambiguous. It does not reflect a definite or certain period, as contemplated by the determinate sentence law. It partakes of the nature of the first half of an indeterminate sentence. As a determinate sentence it is void for failure to fix a definite period; as an indeterminate sentence it is not only incomplete but also inappropriate.

The trial judge recognized the insufficiency of the sentence. The narrative bill of exceptions shows that after the verdict the following ensued:

the Court asked the foreman of the jury what was the maximum sentence levied by the jury . . .the jury responded . that they did not have a maximum fixed. Whereupon the court instructed the jury to go back . . . and determine what the maximum . . should be.

The jury then retired and reported back to the court that the period of confinement would be “not less ten years but not more than fifteen.”

It is evident that this verdict, cast in the form of an indeterminate sentence, in no way complies with the requirement of certainty of time required by the determinate sentence law, and is facially void. State ex rel Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576. The Court of Criminal Appeals erred in treating the jury’s first response as being a valid determinate ten-year • sentence.

The guilt of respondent has been fully and finally determined. A legal punishment has not been fixed. We remand to the Criminal Court at Nashville for a new trial limited to the single issue of punishment. See Hunter v. State, 496 S.W.2d 900 (Tenn.1972).

Remanded.

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

MEMORANDUM ON PETITION TO REHEAR

HENRY, Chief Justice.

The petition to rehear is respectfully denied.

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

      . See Section II, infra.

      . The trial judge clearly and correctly charged the applicable law.


author: TODD, Judge.

text:
    WACHOVIA BANK & TRUST COMPANY, N. A., Plaintiff-Appellee, v. Harold W. GLASS, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    July 28, 1978.
    Certiorari Denied by Supreme Court Dec. 11, 1978.

      Bass, Berry & Sims by Jay S. Bowen, Nashville, for plaintiff-appellee.
    Noble Pepper, Sr., Hermitage, for defendant-appellant.
   OPINION

TODD, Judge.

The defendant, Harold W. Glass, has appealed from a summary judgment in favor of the plaintiff, Wachovia Bank & Trust Company, N.A. in the amount of $4,010.98 plus 20% attorney fee.

Plaintiff claims to be the holder in due course of a note in the amount of $5,120.00 executed by defendant to Preferred Development Corporation which endorsed and assigned the note to Yegen Development Corporation which endorsed and assigned the note to plaintiff.

Defendant’s answer admits the execution and transfer of the note, but insists that plaintiff was, at all material times, aware of the nature of the dealings between defendant and Preferred, and particularly that the note was given in consideration of a contract which Preferred did not perform, thereby effecting a failure of consideration. By cross complaint defendant alleged that, as agent of Preferred, plaintiff has been guilty of violation of the Interstate Land Sales Development Act and is therefore liable to defendant for refunds and expenses in unspecified amounts.

Plaintiff moved for summary judgment dismissing the counterclaim, supported by affidavit of an officer of plaintiff. Defendant responded with an unsworn “Response to Motion” with photostatic copies of two (2) letters and of an advertising circular and a photostatic copy of an opinion of this Court.

The Chancellor found that the counter-suit under the Interstate Land Full Disclosure Act, 15 U.S.C. § 1701 et seq. was barred by the statute of limitations stated in 15 U.S.C. § 1711 and rendered summary judgment dismissing the countersuit.

Plaintiff then moved for summary judgment in its favor on the note, supported by affidavit of an officer of plaintiff. Defendant made no response to the motion. The Chancellor sustained the motion and rendered summary judgment for plaintiff.

Defendant’s first two assignments of error complain of the first summary judgment dismissing the countersuit.

In the first assignment, defendant insists that it was error to sustain a motion for summary judgment based upon an affidavit not made on personal knowledge of affiant, citing Rule 56.05, Rules of Civil Procedure, as follows:

“56.05. Form of affidavits — Further testimony — Defense required. — Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The affidavit in question reads as follows:

"William 0. Bland, being first duly sworn, deposes and says:
1. That at all times pertinent to this litigation he was and is a Senior Vice President of Wachovia Bank and Trust Company, N.A.
2. That at various times during the years 1973 and 1974, Wachovia Bank and Trust Company, N.A., purchased notes from Yegen Development Corporation. Yegen Development Corporation (a wholly owned subsidiary of Yegen Associates, Inc., Teaneck, New Jersey) had purchased said notes from Preferred Development Corporation, said notes having been given by various purchasers to Preferred Development Corporation as evidence of debts owed by them in connection with the purchase of various lots in the development known as English Mountain. Wa-chovia Bank and Trust Company, N.A. also purchased from Yegen Development Corporation certain other notes arising out of the purchase by individuals of lots at other developments. The developers were and are in no way related to Preferred Development Corporation, and its parent, Yegen Associates, Inc., are financial service companies and that neither of said companies is in any way related by way of ownership or management, to Preferred Development Corporation or any of its subsidiaries.
3. That at no time did Wachovia Bank and Trust Company, N.A., its agents or employees, directly or indirectly sell or offer to sell or advertise for sale any lots in the development known as English Mountain.
4. That, further, at no time did Wa-chovia Bank and Trust Company represent, act for, or on behalf of Preferred Development Corporation in selling or offering to sell any lot in the aforesaid development.
5. That Wachovia Bank and Trust Company, N.A., its agents and employees, did not assume any power or authority to oversee, influence or control land sales transactions between Preferred Development Corporation and the various land purchasers.
6. That Wachovia Bank and Trust Company, N.A., is not and has never been in control of the seller, Preferred Development Corporation, either through stock ownership or membership on the Board of Directors or otherwise.”

Defendant’s objection to the form of the affidavit is contained in his unsworn “Response to Motion” in the following language:

“3. Defendant further asserts that much of the affidavit filed in support of the motion by the plaintiff herein is of such a nature that it is in violation of the Tennessee Rules of Civil Procedure and therefore should be stricken. Additionally, the defendant believes and asserts that this affidavit is not such that it forecloses all issues of fact so as to make a judgment at this time improper.”

Defendant’s objection to the evidence just quoted was not sufficiently specific to preserve exceptions to its consideration.

Under Rule 56 TRCP, evidence offered in support of or opposition to a motion is subject to objection on grounds of hearsay. However, such objection must be presented with the same specificity as any other «objection to evidence. See numerous authorities annotated in 18A Tenn. Digest, Trial § 82, pp. 47, 48.

Appellant’s objection does not point out what parts of the affidavit are objectionable and on what ground. Attachment of an eight (8) page unreported opinion of this Court did not supply specificity.

The only obvious hearsay in the above quoted affidavit is an immaterial assertion as to the nature and relationship of organizations not parties to this suit.

The material issue on the first motion for summary judgment was whether or not plaintiff’s agents or employees had been guilty of any tortious acts against defendant as alleged in defendant’s counterclaim, as follows:

“. . . . while acting as an agent of the original developer, Preferred Development Corporation, the Wachovia Bank and Trust Company have been guilty of violation of the Interstate Land Sales Development Act and have become liable thereunder for the return of the purchase money and all expenses and payments provided to be recovered by the purchaser in the case of violation of this act. Plaintiff asserts that Wachovia Bank and Trust Company is liable for such payments because of Wachovia Bank and Trust Company’s own acts and because of their privity with the original developer, Preferred Development Corporation.”

■It is seen from the foregoing that parts of the affidavit material to the counterclaim must, perforce, relate to (1) acts of plaintiff, (2) agency of plaintiff, or (3) privity of plaintiff with Preferred Development Corporation in violation of the Interstate Land Sales Development Act. Paragraphs numbered 3, 4, 5, and 6 of the affidavit relate to the three subjects just stated, and they do not appear on their face to be hearsay.

It is arguable that some of the general denials in the affidavit are hearsay. Of course, the Senior Vice President of a bank could not have personal knowledge of what each and every agent or employee of the bank did or did not do during each moment of the time in question. However, to exclude these statements for hearsay would be to require the bank to catalog the names of each and every person who was agent or employee for the bank during the time in question and to produce the affidavit of each that he or she had not been guilty of any of the acts so generally charged in the counter-complaint. This would be unreasonable and ridiculous.

Perhaps a better procedure would have been to demand specificity of persons, times and places in the counterclaim. However, the affidavit of one of plaintiff’s senior officers was sufficient for this purpose when it stated in substance:

“As a senior officer of plaintiff, so far as I know, there is no basis for the allegations of the counterclaim.”

This was and is sufficient to shift to counterclaimant the burden of producing evidence of specifics of the counterclaim.

For such purpose (eliciting from counter-claimant the details of his claim) the sworn denial of plaintiff’s senior officer was competent even though it might have been partly hearsay.

Appellant’s first assignment of error is respectfully overruled.

Appellant’s second assignment of error asserts that the affidavit, quoted above, failed to establish that there was no genuine issue as to any material fact and that the cross complaint should be dismissed as a matter of law.

The three allegations germane to the cross complaint were listed above. The affidavit stated in substance that the three general allegations were untrue. Until cross plaintiff presented affidavits that a particular agent or employee of plaintiff, at a particular time and place, had committed a particular tortious act, there was no genuine issue as to any material fact, and the cross complaint should have been dismissed as a matter of law.

To satisfy this requirement, appellant relies upon a copy of a letter attached to his unsworn “Response to Motion.” Said pleading states:

“1. Counsel of record for Wachovia Bank & Trust Company have agreed to stipulate that the attached Exhibit 1 is a correct copy of a letter that the plaintiff admits having mailed to the defendant on the date indicated.
2. The defendant, Harold W. Glass, believes and alleges that this letter shows a connection between the Yegen Development Corporation and the plaintiff, Wa-chovia Bank & Trust Company. Therefore, the defendant believes that the duration of such relationship becomes an issue that must be decided at a full hearing of the facts in this cause.”

It is most irregular and unusual for evidence to be presented in such a manner. A “Response to a Motion" does not evidence a stipulation unless signed by or on behalf of the party making the stipulation. Said pleading contains no evidence of any assent of plaintiff to any such stipulation.

Nevertheless, even though it be conceded that, by some means the letter was proper for consideration, it does not support appellant’s counterclaim, for it was written long after the purchase of land by appellant— not for the purpose of inducing appellant to buy property — but in an effort to induce appellant to pay a debt due plaintiff.

The Interstate Land Sales Full Disclosure Act applies only to “developers” and “agents”, both of whom are defined in terms of attempts to sell or lease lots. Said letter does not evidence any participation in any attempt to sell or lease a lot, but only an effort to collect a debt long after the sale was made.

Appellant insists that said letter was material to the status of plaintiff as a “holder in due course” which was not a material issue in respect to the counterclaim.

There is yet another reason why there is no error in the summary judgment of dismissal of defendant’s counterclaim, and that is that the counterclaim shows on its face that the cause of action arose prior to October 25, 1972, and that the counterclaim was filed on October 19, 1976. The action is therefore barred by 15 U.S.C. § 1711 which limits actions under the Interstate Land Sales Full Disclosure Act to three years.

Appellant’s second assignment of error is respectfully overruled.

Appellant’s third and fourth assignments of error relate to the second summary judgment in favor of plaintiff for the amount due on the note.

The third assignment complains that the affidavit of John K. Hoyt, offered in support of plaintiff’s motion was not made upon personal knowledge and “was not otherwise admissible.”

The record contains no indication that defendant at any time or in any manner interposed any objection to the consideration of this affidavit. A rule of evidence not invoked is waived. Baker v. Baker, 60 Tenn.App. 545, 488 S.W.2d 677 (1969).

A litigant may not stand idly by and suffer an adverse summary judgment upon allegedly objectionable evidence and expect the appellate courts to grant relief which was not requested of the Trial Court. Rule 12(4) Rules of Court of Appeals.

Furthermore, the brief of appellant fails to point out what part of the three page affidavit is objectionable. As in the case of the affidavit previously discussed, it is made by a vice president of plaintiff, it states the general circumstances of the purchase of the note in question, and it denies any circumstances of notice of infirmity. Also, as in the case of the previous affidavit, it is essentially a denial of knowledge and demand for details of defendant’s defense. For such purpose, it was proper for consideration by the Chancellor.

Appellant’s third assignment of error is respectfully overruled.

Appellant’s fourth assignment of error is that “plaintiff failed to sustain the burden ... of establishing that there is no genuine issue as to any material fact and that (plaintiff) is entitled to a judgment as a matter of law.”

Reduced to its simplest form, the posture of the parties was as follows:

1. Plaintiff sued on a note with attached endorsements or transfers to plaintiff. Not being denied under oath, the note was prima facie evidence of debt. T.C.A. § 24-506.
2. Defendant filed an unsworn answer alleging certain defenses which would be available against plaintiff only if plaintiff had notice of the defenses before acquiring the note.
3. Plaintiff filed affidavits that it had no notice of such defenses.
4. Defendant offered no counter-affidavit that plaintiff did have such notice. In the situation just outlined, there was

no evidence of any dispute as to any material fact. It is true that defendant had made an unsworn assertion suggesting such a dispute; but, on motion for a summary judgment, disputes as to material facts must be evidenced by affidavits or other sworn evidence of facts, and not merely by unsworn generalized assertions in pleadings. Rule 56.05 T.R.C.P.

Defendant’s fourth assignment of error is respectfully overruled.

Defendant’s fifth assignment of error insists that:

“. . . the lawsuit presented complex issues of fact and law which are inappropriately resolved by a summary judgment. This lawsuit requires a careful examination of a complex set of facts surrounding the planning and development of the English Mountain project. . The technical and complex defense of holder in due course . The exact nature of the involvement of the plaintiff in the English Mountain project . . The complexity of the entire English Mountain scandal. . ..”

Defendant has not offered a single sworn word to support the elaborate rhetoric just quoted. Having failed to present any affidavit of facts in his possession or to utilize his rights to discovery of facts from others, defendant is not in a position on appeal to again make elaborate assertions or suggestions of facts without sworn substantiation.

The fifth assignment of error is respectfully overruled.

The sixth assignment of error asserts:

“The Honorable Trial Court erred in granting the plaintiff’s Motion for Summary Judgment on defendant’s counter-complaint in that the final adjudication of this lawsuit requires the resolution of policy questions which are of intense and immediate public interest and are inappropriately dealt with by Summary Judgment. This lawsuit will establish policy statements concerning the relative rights and liabilities of persons innocently caught up in land scandals such as the English Mountain affair.”

Appellant apparently conceives that the Rules of Civil Procedure should be suspended and the case should proceed to trial under the former common law procedure of pleading and trial simply because it is alleged in brief that the case is of intense public interest and involves other innocent persons. No authority is cited and this Court knows of no authority for such action.

This Court is not without sympathy for all those who unwisely sign negotiable notes in exchange for promises that are never fulfilled. Efforts have been made and are continuing to protect the unwary from unwise execution of notes; but, at the time of the transactions involved herein, it does not appear that there was any law to protect defendant from the results of his mistake.

Defendant has not demonstrated any valid reason why he should be relieved of his obligation to pay his note.

The judgment of the Chancellor is affirmed. Costs of this appeal are taxed against defendant-appellant.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: DWYER, Presiding Judge.

text:
    Annie Norene STRICKLAND, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 15, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.
    Charles E. Baucum, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Thomas D. Henderson and A. J. Archibald, Asst. Dist. Attys. Gen., Memphis, for appel-lee.
   OPINION

DWYER, Presiding Judge.

This appeal in the nature of a writ of error flows from the conviction of the appellant by a jury for committing the offense of uttering forged papers under the value of $100, T.C.A. 39-1704, with resulting confinement in the Shelby County Jail for eleven months and twenty-nine days.

There are two assignments of error. In the first assignment the appellant contends the court erred in denying her motion for a mistrial after a Memphis police officer testifying for the State made the following statement, “a group of five Bureau of Identification Police Department” photographs. It is his urging that this statement conveyed to the jury that she had a prior police record and served only to prejudice the jury. The second assignment of error which attacks the sufficiency of the evidence prompts our summarization of that evidence as found from our review of this record.

The records of the South Memphis Medical Association, a clinic located in the City of Memphis, reflects that a Mrs. Elizabeth Nunley and her two and one-half year old daughter were treated in that clinic on October 22, 1976. The fee prescribed by the treating physician was $16 as to each. This fee was paid on that date by a cheek made out to the Association as payment in the amount of $32. The signature of the maker of the check was Elizabeth T. Nunley. On or around November 18, 1976, Mrs. Elizabeth Nunley was going through her bank statement when she noticed several checks were not made out by her and had her forged signature thereon. She also noticed that some of the checks were presented in places where she had never been. A prompt call by Mrs. Nunley to her bank brought about a conference with an official of that bank resulting in an affidavit by Mrs. Nunley that the check to the South Memphis Medical Association with her signature was a forgery. Mrs. Nunley at that time told the bank official that she kept her checkbook near her telephone, and therefore, that she suspected a female known to her as Marsha Appleby who had been in her apartment on several occasions to use the telephone. A complaint was made by the bank official to the Memphis Police Department and a Sergeant Maxie hearing the name Appleby checked files kept in that department and uncovered a photograph of the appellant. The sergeant then took this photograph with others to the South Memphis Medical Association Clinic, and the treating physician, a Dr. Roy Dement, identified the picture of appellant as the lady he treated on October 22, 1976, at the clinic, and who identified herself as Mrs. Elizabeth T. Nunley. The receptionist at the clinic identified the appellant at the trial as the person who was with her daughter and was treated at the clinic on October 22, 1976, and had identified herself as Elizabeth Nunley.

At the trial Mrs. Nunley identified the appellant as the female who used her telephone, had been in her apartment, and had been her baby-sitter as the person she knew as Mrs. Appleby.

The appellant did not testify and offered no proof.

The offense of uttering forged papers, T.C.A. 39-1704, consists of: (1) actual knowledge that the instrument is false; (2) representations, either direct or implied, that the instrument is genuine; and (3) intent to defraud. Wofford v. State, 210 Tenn. 267, 358 S.W.2d 302 (Tenn.1962); Keebler v. State, 3 Tenn.Cr.App. 447, 463 S.W.2d 151 (1970). It is the appellant’s contention that there is no evidence that she passed the check to anyone in the clinic. Hence, there is no proof to sustain the verdict in that the evidence does not reflect an uttering of the forged instrument by the appellant. She then contends that the verdict is based upon speculation and not upon the evidence. Clancy v. State, 521 S.W.2d 780 (Tenn.1975).

We think the evidence is sufficient to sustain the verdict: (1) Mrs. Nunley listed the appellant as a suspect to having taken her checks and knew her by the name of Appleby; (2) Mrs. Nunley identified the appellant as the person she knew to be Mrs. Appleby; (3) the appellant was positively identified by the receptionist at the South Memphis Medical Association as the patient who presented herself at the clinic on October 22, 1977, as Mrs. Nunley; (4) the examining physician, Dr. Dement, identified a photograph as shown to him by Sergeant Maxie as the woman he had examined as Mrs. Nunley; (5) the custodian of the records for the South Memphis Medical Association testified that the Elizabeth Nunley who visited their office on October 22,1976, had paid for the treatment for herself and her child by a check signed in the same name; and (6) this check was identified by the real Mrs. Nunley as a forgery. We think those facts were ample evidence for the jury to infer that the appellant identifying herself as Mrs. Nunley on October 22, presented the check for the payment of her bill at the South Memphis Medical Association Clinic. This uncontradicted evidence, we think, overwhelmingly supports the verdict of guilt. It must be remembered under settled rules of law that on appeal the appellant has the burden to show that the evidence preponderates against her guilt and in favor of her innocence. State v. Sneed, 537 S.W.2d 699, 701 (Tenn.1976); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). This she has not done. The assignment pertaining to the evidence is accordingly overruled.

The mistrial assignment: The basis for this assignment of error occurred when the investigating officer, Sergeant Maxie, testifying on direct examination, responded to the -Attorney General’s questioning as revealed by the transcript of the trial:

“Question. Okay, and who did you talk to out there?
“Answer. I talked with the doctor, Dr. Dement, I believe his first name is Roy.
“Question. And what did you do out ■ there in talking with the Dr. Dement and without relating what he told you at that time?
“Answer. I took a group of five Bureau of Identification Police Department—
“Mr. Hough. Your Honor, that’s what we asked for in applying for our motion for—
“The Court. I’m going to instruct the jury to disregard the last testimony, the last part of the testimony you just heard. You’re not to consider anything about that at all. Disregard that last ■bit of testimony.”

It is appellant’s contention that the officer’s statement, “I took a group of five Bureau of Identification Police Department” clearly conveyed to the jury that the appellant had a prior police record. We disagree. With the prompt and diligent interruption and objection by defense counsel the magical word “photographs” was prevented from being placed before the jury. We think, therefore, that it is extremely doubtful the jury knew what the officer meant by the phrase, “Bureau of Identification”. At any rate, the phrase, as testified to before the jury and before the objection, was cured by prompt and curative instructions as given by the trial court. Colquit v. State, 107 Tenn. 381, 64 S.W. 713 (1901); Crafton v. State, 545 S.W.2d 437 (Tenn.Cr.App.1976); State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25 (1969). We find no error under these circumstances with the trial court’s denial of appellant’s motion for a mistrial. This assignment is without merit and accordingly overruled.

The judgment of the trial court is affirmed.

O’BRIEN, J., and JOE C. LOSER, Special Judge, concur.


author: GODDARD, Judge.

text:
    KNOX COUNTY ex rel. James A. McBEE, Commissioner of Highways, Plaintiff-Appellee, v. Divola G. BARGER and wife Annie C. Barger, Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Dec. 29, 1976.
    Certiorari Denied by Supreme Court March 28, 1977.
    Richard Stair, Sr., Knoxville, for appellants.
    Ted H. Lowe, Paul E. Dunn, Knoxville, for appellee.
   OPINION

GODDARD, Judge.

In this condemnation proceeding Knox County, Plaintiff-Appellee, purporting to proceed under the provisions of Chapter 216 of the Public Acts of 1959, seeks to acquire certain rights in property owned by the Defendants in connection with the construction of John Sevier Highway. Plaintiff deposited the sum of $3,000 as the reasonable value of the interest condemned. From a judgment on a jury verdict that defendants suffered no damages, Annie C. Barger, who acquired the entire interest in the property as surviving tenant by the entirety upon the death of her husband, prosecutes this appeal. By her assignments of error she insists the Court erred in (1) charging the jury, (2) failing to direct a verdict at the conclusion of all the evidence in favor of the Defendants, (3) admitting testimony, and (4) failing to grant a new trial because the evidence preponderates against the verdict of the jury.

The material facts are practically undisputed. The property in question contains 1.67 acre and is bounded on the east by Chapman Highway, the north by Abner Cruze Road and the south and west by other property owners. John Sevier Highway, which is a new connector road, bridged Chapman Highway some 450 feet to the south of the Defendants’ property. The construction of the new road resulted in (1) Abner Cruze Road being closed, (2) a fence being erected along the north boundary of Defendants’ property, and (3) a curb — some 12 inches in height — being constructed within the right-of-way of Chapman Highway for the purpose of channeling traffic proceeding south on Chapman Highway after exiting the access road. With the exception of a 46-foot driveway to the south end of Defendants’ property, the curb extended across its entire 280-foot frontage.

Defendants’ property is improved with a business house which faces Chapman Highway and is located toward the north end of the property. The building, operated as a tavern and restaurant, is approximately four feet from the west right-of-way line of Chapman Highway and the curb in question — for the most part — 21 feet within the right-of-way. A diagram of the situation is shown in appendix hereto attached.

No land was actually taken from the Defendants, but it is their insistence that the erection of the fence, as well as the construction of the curb amounted to a taking which would entitle them to compensation.

Their principal objection is to the following portions of the charge to the jury:

The rights of abutting owners are subordinate to the right of the public to proper use of the highways. Thus the exercise of the right to abutting owners is subject to reasonable regulation and restriction for the purpose of providing reasonable, safe passage for the public, but regulations or limitations cannot be sustained which unduly delimit or unreasonably intermeddle with the rights of the abutting owners. The mere disturbance of the rights of the abutting owners by imposition of new uses on the highway consistent with highway purposes must be tolerated. While entire access may not be cut off, an owner is not entitled, as against the public, to access to his land at all points in the boundaries between it and the highway.
If he has free and convenient access to his property and to the improvements thereon, and his means of ingress and egress are not substantially interfered with by the public, he has no cause to complain and would not be entitled to any damages.
Take the case, elect a foreman, and render a fair and just verdict and when you have reached your verdict you notify the court officer and the court will be available for your report.
You will need to find one figure. You need to find, first of all, if there was an interference when this highway was constructed with the curbs and fence; find first of all if there was. Of course, if you find that there wasn’t, that would be the end of the lawsuit. If you find that there was, was it a reasonable thing for this county to fix this particular curb and fence. And if the county was operating within reason in doing it, then of course there would be no damages on behalf of the property owner.

It has long been the settled law of this state that access to a public road is a property right and cannot be extinguished or impaired without payment of compensation. Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898); Knox County v. Lemarr, 20 Tenn.App. 258, 97 S.W.2d 659 (1936); Shelby County v. Dodson, 13 Tenn.App. 392 (1930).

As recently as September 1975, in Shelby County v. Barden, 527 S.W.2d 124, 127 (Tenn.S.Ct.), Mr. Justice Harbison, speaking for a unanimous Court, reaffirmed the rule:

Actions by landowners for deprivation or impairment of their rights of ingress and egress on public roads have been long recognized in this state, and there are a large number of reported cases dealing with the subject. Such suits have generally been recognized as inverse condemnation actions; and the theory upon which the actions have been permitted has been that of deprivation or public taking of a property right of a landowner.

Given this premise, it necessarily follows that under Article I, Section 21 of our Constitution a condemning authority cannot appropriate the right of access in whole or in part without paying just compensation.

Defendants also insist that these proceedings should have been instituted under the authority of Chapter 20, Title 54, T.C.A. relative to controlled access facilities rather than the provisions of Chapter 216 of the Public Acts of 1959. We do not think this objection is particularly significant because Chapter 216, Section 10 of the Public Acts of 1959, codified as T.C.A. 23-1537, speaks of “property and property rights,” and further provides that their value will not be diminished by incidental benefits.

Plaintiff insists that insofar as the curb is concerned it is not a taking, but rather a proper application of police power, and in the alternative that it is authorized under T.C.A. 54-540, which provides:

Entrances into highways — Regulations. —In order to prevent the obstruction or restriction of the flow of water along, across or under any highway on the state highway system, the impounding of water upon or within any such highway, the damaging in any way or manner of any such highway, or the interference with or creation of any damage or hazard to public travel, the commissioner of highways of the state of Tennessee is hereby authorized and directed to make reasonable and proper rules and regulations governing the construction of entrances into highways in the state of Tennessee on the state highway system.

As to its first insistence, Plaintiff relies on City of Memphis v. Hood, 208 Tenn. 319, 324, 345 S.W.2d 887, 889 (1961), wherein the traffic pattern was changed to make a street one-way when it formerly had been two-way. Hood however is not supportive of Plaintiffs position, but rather that of the Defendants:

. . . This right of ingress and egress attaches to the land. It is a property right, as complete as ownership of the land itself. But when we come to damages claimed by reason of the change of the flow of traffic, making a street a four-lane highway or diverting the traffic one way or the other, this comes from the exercise of the police power of the governing parties and such damages as result to one are noncompensable, as they are an incidental right resulting from a lawful act.

With regard to their second proposition this Court in Speight v. Lockhart, 524 S.W.2d 249, 256 (Tenn.App.1975), construed T.C.A. 54-540 to regulate construction by landowners within the right-of-way for the purpose of acquiring physical access to a roadway and not to authorize the Commissioner to limit access:

A study of §§ 54-540 — 542, T.C.A., discloses that the purpose and intent of said statutes is to afford regulation of construction within the rights-of-way of state highways and not to authorize regulation or restriction of the rights of access of abutting property owners. Note that each of said code sections includes the word “construct” or “construction” and does not specify the exercise of the right of access as being subject to regulation.
Accordingly, this Court holds that the statutes validly confer upon the Commissioner of Highways the power to exercise reasonable supervision and regulation of construction upon and within the rights-of-way of state highways, including the power to require application for permits for such construction and the grant of such permits on reasonable conditions.
Said statutes are not construed by this Court to empower the Commissioner of Highways to prescribe or supervise modifications or construction upon private property outside the public right-of-way, nor to impose any conditions upon the right to make application for permission to perform any desired construction on the right-of-way, nor to deny rightful access to the right-of-way. To the extent that the present or any future regulations attempt to do so, they exceed the power conferred, and are or would be invalid.

In summary, we hold that the right of access is a property right which may not be appropriated in whole or in part without paying just compensation for its value. In this connection we do not say, nor do we mean to be understood to say, that any diminution of access requires compensation, but do agree with Judge Shriver, who addressed this question in Pack v. Belcher, 62 Tenn.App. 23, 34, 458 S.W.2d 18, 23 (1969):

In Shelby County v. Dodson, et al., 13 Tenn.App. 392, it was said that the right of ingress and egress may be valuable or not, and may be of more or less value according to the property; that in the country when a grade is changed through a man’s farm, the right of ingress and egress might, at any particular point, be of little or no value, and that the abutting owner would, thus, be entitled to little or no damages, whereas, in other situations such right might be of considerable value, and that “the destruction or impairment of such right is a proper matter for compensation to the extent of the value of the right thus taken away.”

In view of the foregoing it is only necessary to address one additional assignment of error. Defendants object to the Trial Court’s admitting evidence from the County’s appraisers regarding the policy of the Commissioner of Highways under T.C.A. 54-540 when application is made by a landowner for access. We agree that the evidence was improperly admitted as being speculative because the rules applicable today could be changed tomorrow.

For the foregoing reasons assignments of error numbers one and four are sustained, the Trial Court reversed and the cause remanded for a new trial. The costs of appeal are taxed to the County.

SANDERS, J., and ROSS W. DYER, Special Judge, concur.

APPENDIX


author: NEARN, Judge.

text:
    Betty Ann Crumby DAVES, Appellant, v. Carroll Edward DAVES, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Sept. 25, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.

      Don G. Owens, Jr., Memphis, for appellant.
    Ernest G. Kelly, Jr., Memphis, for appel-lee.
   NEARN, Judge.

This appeal from a decree of divorce turns primarily upon a principle of law.

Prior to this case, on March 5, 1974, the wife filed suit for divorce on the grounds of cruel and inhuman treatment. That complaint alleged that the parties separated on January 19, 1974. The husband filed an answer which denied the wife’s entitlement to a divorce, but admitted that the parties separated on January 19, 1974, when the wife asked him to leave their home. No affirmative relief was sought by the husband. After a full contested hearing on the merits the wife’s complaint was dismissed with prejudice on May 12,1976. No appeal was taken from that order.

On June 21, 1976, the wife filed another complaint for divorce charging that the defendant was:

“guilty of such cruel and inhuman treatment or conduct towards her as renders cohabitation unsafe and improper and that she is entitled to an absolute divorce from the defendant. Further, that the defendant has abandoned the plaintiff or turned her out of doors, and refused or neglected to provide for her.”

The husband answered specifically raising the defense of res judicata and filed a counter-claim for divorce on the grounds of cruel and inhuman treatment and desertion.

After a hearing, the Trial Judge dismissed the wife’s suit for divorce and granted the husband the divorce on grounds of desertion. Custody of the children was awarded the wife, along with an award of child support. A division of the jointly held property was made by the Court.

In dismissing the wife’s suit the Trial Judge held that she had failed to carry the burden of proof in establishing her grounds for divorce as alleged. In awarding the husband the divorce the Trial Judge held that the husband was wrongfully excluded from the home of the parties on or about January 19, 1974, due to the conduct of the wife and that it was res judicata that she had no legal cause for so doing.

The wife appeals with three Assignments of Error. The first is that the Trial Court erred in. allowing the husband to compute the desertion period from January 19, 1974, through May 12, 1976. The second faults the Trial Judge for refusing to grant the wife a divorce on the grounds of abandonment and the third complains of the division of the property.

The husband has perfected a precautionary appeal in the event the wife is successful in her appeal.

The argument presented in support of the first Assignment of Error is that the time of the pendency of a prior divorce action may not be included by the husband in computing the statutory time requirement to establish the grounds of desertion.

Counsel for appellant argues that the generally recognized rule is that the time of a previous matrimonial litigation ordinarily cannot be counted as a part of the statutory period of desertion in a subsequent suit for divorce between the same parties citing 80 A.L.R.2d p. 855, and that since there are no Tennessee cases directly in point we ought to follow the “generally recognized rule” and deny the husband the right to count the time when the previous divorce action was pending as included in the statutory desertion period.

We do not fault the general rule. This is simply a case that finds its exception in the word, “ordinarily”, found in the general rule. See 80 A.L.R.2d p. 866. It is not the ordinary fact case. Additionally, while there may or may not be a case in Tennessee directly in point, there are some close enough to suit us.

The wife admits she ordered the husband out of their home in January 1974. They have been separated since then. When the Trial Judge, in the first divorce on May 12, 1976, dismissed the wife’s complaint for divorce with prejudice, that dismissal was a judicial finding, unappealed from, that the wife had no cause for divorce. Therefore, she had no just cause to order him from the home on January 19, 1974, as she had alleged in the first complaint. She may not relitigate that issue in another suit in another form. See Douglas v. Douglas (1928) 156 Tenn. 655, 4 S.W.2d 358. That the foregoing is the result dictated by law is not and cannot be seriously contested by counsel for the wife. However, it is suggested that even if that be true, the time of that earlier pending previous divorce suit should not be included in the computation of the statutory period for desertion. This suggestion is offered on a “public policy” basis and upon authority of Hodges v. Hodges (1944 E.S.) 27 Tenn.App. 547, 182 S.W.2d 749, wherein the statement is found that “To hold otherwise is to say that the parties to a divorce action must be expected to litigate at term time and cohabit at all other periods to avoid being charged with desertion.”

In Douglas, supra, as in this case, the parties separated never again to cohabit and the wife first filed suit for divorce which was heard on the merits and adjudged against her. It appears from the Court’s opinion that some time after the . wife’s suit was dismissed, the husband filed for divorce but same was not heard on the merits but was dismissed on the grounds that the statutory period for desertion had not elapsed. Thereafter, it would appear that the husband, after the appropriate time had expired, again filed for divorce on the grounds of desertion and this time was successful.

The Court clearly held that in a subsequent suit by the husband, the wife was estopped to show that she had been forced by his conduct to withdraw from him initially and that that contention had been previously and finally decided adversely to her.

It appears that on appeal the wife contended that in order to make up the full two year period then required for desertion, it was necessary that the time during which the husband’s first suit was pending had to be included. The wife complained and the Court responded with the somewhat ipse dixit statement that there was no “ — error in refusing to sustain the contention of the wife that the running of the statutory period had been suspended by the pendency of litigation, for which the petitioner was not responsible.”

The Hodges case, supra, which is strongly relied upon by counsel for Mrs. Daves, is a case in which it was held that the period of pendency of a contested divorce litigation is not to be included in a subsequent suit in computing the period of willful desertion necessary to constitute grounds for divorce.

The two holdings seem to be oppositional. In truth, they are and ought be; as the holding in each case is based upon opposite facts. Therefore, the two cases are not conflicting but are harmonious.

In Douglas, supra, the husband had not been guilty of any act to cause the wife to withdraw and such fact was undisputed under the doctrine of res judicata. No reconciliation was ever effected after that withdrawal caused by the wife. The husband then prematurely filed suit for divorce on the grounds of desertion. The filing of that suit caused no separation of the parties as they were already separated by the wife’s withdrawal and her continuous refusal to cohabit with the husband. We believe that to be the reason why the Court stated that there was no merit to the wife’s contention that she was not responsible for the filing of that litigation. It may have been filed prematurely, but premature or not she was the cause of it by her continual refusal to cohabit.

In Hodges, supra, the husband had filed several suits for divorce, one of these charging the wife with desertion and which was dismissed with prejudice. (The Court held that such dismissal insofar as it affected the husband’s suit on appeal, operated as an adjudication against the husband’s allegation of any desertion prior to that dismissal.)

The husband then filed another suit charging desertion, but non-suited same before trial. Then the husband filed another suit charging desertion and the Trial Court granted him a divorce on the grounds of desertion computing the period during which the suit that was non-suited was pending in order to arrive at the two years required. The reviewing Court reversed the Trial Court for including such period in the two year computation.

Douglas and Hodges, supra, differ factually in this major regard. In Douglas, the party who had not, by the application of res judicata, caused the separation was allowed to compute as desertion time, that period which elapsed during a pending suit filed by the non deserting party, after the desertion, which suit was not heard on the merits. In Hodges, the party who had caused the separation was not allowed to compute as desertion time that period which elapsed during a pending suit filed by the deserting party, after the desertion, which suit was not heard on the merits.

In this case, the facts are closer to those in Douglas, supra, and the result ought be along those lines. To hold otherwise would permit the party otherwise subject to a divorce on the grounds of desertion, to avoid the divorce by filing one groundless suit after the other.

The first Assignment of Error is overruled.

The wife’s alleged grounds for divorce hang by gossamer threads at the most. Her theory is that she was not properly and adequately supported by the husband between May 31, 1976, and June 21, 1976, that is to say she was not adequately supported for 21 days following the dismissal of her first divorce suit and the filing of her second suit. We concur in the finding of the Trial Judge that, “the wife failed to carry the burden of proof in establishing her grounds alleged for divorce . . .” The Assignment of Error is overruled.

The third Assignment of Error in effect seeks an alimony award in favor of the wife under the guise of a larger “equitable” distribution of jointly held property under T.C.A. § 36-825. The Trial Court awarded to the wife the interest in a 1974 Dodge Charger, the furniture, the furnishings, household articles, and the home of the parties. A great deal of the brief of the wife’s counsel is concerned with the husband’s annual income, future earnings, and retirement benefits accrued at his place of employment and faults the Trial Court for not taking into consideration the husband’s annual income and retirement benefits and awarding part of same to the wife. To do so would be to award alimony under T.C.A. § 36-825 which the Court may not do. Humphreys v. Humphreys (1954 W.S.) 39 Tenn.App. 99, 281 S.W.2d 270. T.C.A. § 36-826.

The wife’s Assignments of Error are all overruled. We do not reach the husband’s.

The decree below is affirmed with costs of appeal adjudged against the wife.

MATHERNE and SUMMERS, JJ., concur.

      . Since both husband and wife in the Douglas case, supra, petitioned for certiorari we are uncertain as to whom the Court referred by the use of the term “petitioner”. For now, we will assume the Court meant “she”.