author: HARBISON, Justice. BROCK, Justice

text:
    Anthony Lamar JONES, a minor, by next friend, Olivia Bell, Petitioner, v. Dr. Billy Gene BLACK et al., Respondents.
    Supreme Court of Tennessee.
    July 19, 1976.
    Charles G. Wright, Jr., Chattanooga, for petitioner.
    E. Blake Moore, Spears, Moore, Rebman & Williams, Chattanooga, for respondents.
   OPINION

HARBISON, Justice.

This action was brought on behalf of a minor child to recover damages for the wrongful death of his mother. Her death occurred on June 13, 1971, following Caesarean surgery in connection with the birth of the child for whose use the suit was brought.

The action was not filed until January 22, 1973, more than one year after the date of the death of decedent. The trial court and the Court of Appeals both held the claim was barred by the one-year statute of limitations, T.C.A. § 28-304, and this Court granted certiorari to consider the matter further.

While there is no specific statute of limitations contained in the Tennessee wrongful death statutes, T.C.A. §§ 20-607 et seq., the rule has long been followed in this state that the Tennessee statutes, in theory, preserve the right of action which the deceased himself would have had, and they basically have been construed as falling within the “survival” type of wrongful death statutes. For many years, the courts of this state have applied the- one-year statute of limitations contained in T.C.A. § 28-304, governing actions for personal injuries, to actions for wrongful death, regardless of the minority or other disability of any beneficiary of the action. See Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (1899).

In the present case, the decedent herself was a minor and, the beneficiary, of course, was a newborn child. The Court is asked to re-examine its previous rulings upon the question of the statute of limitations, and, in effect, to hold that the right of action actually accrues to the beneficiary, and that the minority or other disability of the beneficiary should prevent the running of the statute of limitations until after the removal of such disability, pursuant to the general savings statute, T.C.A. § 28-107.

That statute provides as follows:

“If the person entitled to commence an action is, at the time the cause of action accrued, either (1) within the age of eighteen (18) years, or (2) of unsound mind, such person, or his representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.”

The Court has given careful consideration to the contention of the petitioner, and were we construing the Tennessee wrongful death statutes for the first time, a construction such as that contended for by the petitioner would have considerable appeal.

The nature and theory of the Tennessee wrongful death statutes, however, have been much litigated over a long period of time, and the rules under which the statutes have been consistently applied have become well settled, particularly the rule governing the measure of damages to be applied for the wrongful death of a decedent within this state. It is the opinion of the majority of the Court that to now hold that the right of action accrues to the beneficiary, and that the statute of limitations in a death action would depend upon the age or competency of the beneficiary, would be contrary to the basic theory and construction of the wrongful death statutes as laid down in many cases in this state over a long period of time. This in all probability, would impinge upon the theory as to the measure of damages which, in the opinion of the majority, is a more equitable one than that applied in states where the wrongful death statutes are deemed to create a “new cause of action” in the beneficiary.

It is true, as pointed out in the dissenting opinion of Justice Brock, and as pointed out by almost all commentators on the Tennessee wrongful death statutes, that the statutory provisions in Tennessee are somewhat ambiguous. They provide for elements of damages consistent with a theory of the survival of the right of action of the deceased but also allow damages consistent, to some degree, with the creation of a new cause of action in the beneficiaries. See Gamble, Actions for Wrongful Death in Tennessee, 4 Vand.L.Rev. 289 (1951); Smedley, Wrongful Death Actions in Tennessee, 27 Tenn.L.Rev. 447 (1960).

Despite this apparent ambiguity in language, however, the Tennessee courts have consistently for nearly a century construed the Tennessee wrongful death statutes as being of the survival type, and as preserving the right of action which the deceased would have had, had he survived. This may, indeed, be a fiction, but it is one which is well settled and is well established in our case law, and which was thoroughly considered and discussed in a number of cases near the end of the nineteenth and during the early part of the twentieth century.

T.C.A. § 20-614, which permits the allowance of certain damages to the beneficiaries, in addition to damages for the life of the deceased, had its origins in Chapter 186 of the Public Acts of 1883, and was added to the original wrongful death statutes passed much earlier in the nineteenth century. The 1883 statute, upon which the dissenting opinion places emphasis, was construed in a number of cases, all of which are discussed in the leading case of Davidson Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967 (1902). After lengthy review of all of the cases, the Court said:

“Regarding these cases all together in one comprehensive view, from the earliest to the latest, a striking fact appears, viz. that in all of them only one right of action is recognized — that of the deceased — and that they all, so far as they speak to the subject at all, deny that any independent right of action exists in the widow, the children, or the next of kin.” 109 Tenn. at 613, 72 S.W. at 977.

In that case the Court recognized that the statutory provisions do permit two classes of damages in the same action, these being damages for the injury to the deceased himself, and certain incidental damages to the widow and children. Both before the decision in that case and since, however, the Tennessee courts have consistently construed the statutes to be of the survival type, and to preserve the right of action of the deceased.

Probably no case more graphically demonstrates the theory to which the Tennessee courts have been firmly committed in construing the wrongful death statutes than that of Memphis Street Ry. Co. v. Cooper, 203 Tenn. 425, 313 S.W.2d 444 (1958). In that case a group of beneficiaries purporting to be the widow and children of the deceased appeared at counsel table when an action for his wrongful death was tried. There was a verdict in favor of the plaintiffs under a charge given by the trial court to the jury that the measure of damages was the pecuniary value of the life of the deceased. Thereafter, it developed that the persons seated at counsel table were not the legitimate beneficiaries of the deceased, and the trial court granted a new trial on the basis of newly discovered evidence. At the second trial there was a verdict for the defendant. The record revealed that the deceased had two surviving brothers, however, who would have been proper beneficiaries under the statute, if in fact the persons claiming to be his widow and children were not such.

The Court of Appeals, therefore, reversed the action of the trial court in granting a new trial and reinstated the original jury verdict, and its action was affirmed by this Court in an opinion by Chief Justice Burnett. In this opinion the Court reiterated the firmly settled theory in this state that:

“. . . the action which survived was not a new action in the widow and children or the heirs, but they could only recover for the pecuniary value of the life of the deceased and they only had the same rights that he had regardless of who the widow and children were . . . .” 203 Tenn. at 430, 313 S.W.2d at 447.

In affirming the action of the Court of Appeals, reinstating the jury verdict, the Court said:

“We have reached this conclusion because in the first instance the right of action herein was that of the dead man and the right which he would have possessed if he had lived and the recovery is in his right, not in the right of the widow or children or brothers. Sharp v. Cincinnati N.O. & T.P. Ry. Co., 133 Tenn. 1, 179 S.W. 375, Ann.Cas.1917C, 1212; Oman v. Delius, 162 Tenn. 192, 35 S.W.2d 570. This right of action is statutory (Sections 20-607, 20-608, 20-609, T.C.A.), so that both the action and the procedure for distribution of the proceeds of any recovery rests on the statute. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097.
“A suit of the kind here involved must be treated as if the injured party had brought it. Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131. . . .
“Thus it is seen by our authorities, which are absolutely uniform in this State up to the present time, that the recovery for the death of Cooper is not based on whether he left a widow and children or what-not, but is based upon the pecuniary value of the life of the man himself.” 203 Tenn. at 431-433, 313 S.W.2d at 447-448.

The rationale of the dissenting opinion in the present case, in our opinion, represents a departure from the long and well-settled construction given to the Tennessee wrongful death statutes that they are to be treated as survival statutes rather than creating a new cause of action.

The decision in Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (1899) and the interpretation made therein of the original wrongful death statutes and the 1883 amendment have been consistently followed for over seventy-seven years. These have become an integral part of the Tennessee wrongful death statutes. It has been thoroughly understood by the bench and bar for a long period of time that the statute of limitations for wrongful death in this state is one year. Whether that is the optimum period, or whether it should be longer or shorter is basically a matter for the General Assembly. We do not believe that this Court should now unsettle the matter and leave the period of time for the bringing of such an action open for as much as eighteen years, depending upon the age or status of the beneficiaries, under a statute which has been uniformly construed and interpreted to preserve the right of action of the deceased and to be a survival type of statute.

The changing of the rule as to the statute of limitations could create many problems, heretofore regarded as settled, in the application of the wrongful death statute. For example, in the case of a decedent leaving a number of beneficiaries, rather than a single beneficiary as in the present case, numerous problems could be encountered with respect to the statute of limitations. Presumably the adult beneficiaries would still have just one year from the date of the injury or death of the decedent, as the case may be, but the minor beneficiaries would have varied and different periods of time within which they might pursue their action. The problem would then be presented as to whether or not each beneficiary should be allowed to recover for such damages as he or she had sustained, or whether there would still be preserved the right of action of the deceased, with damages measured by the pecuniary value of his own life.

The measure of damages heretofore adopted in this state, permitting recovery for the value of the life of the deceased, permits some recovery in almost every case where liability is established. In states following the “new cause of action” theory, a beneficiary has no right of action unless he can prove damages to himself. This is the rule followed in at least two of the cases cited in the dissenting opinion in which minor beneficiaries were involved. Cross v. Pacific Gas & Electric Co., 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353 (1964); Parker v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972).

The judgment of the Court of Appeals is affirmed at the cost of petitioner.

FONES and HENRY, JJ., concur.

BROCK, J., dissents.

COOPER, C. J., not participating.

BROCK, Justice

(dissenting).

I must dissent.

In Tennessee there is no special statute of limitations applicable to actions for wrongful death. Instead, our courts have held that the general statute of limitations for injuries to the person, T.C.A. § 28-304, applies to such actions. That statute provides that the cause of action must be commenced within one year “after cause of action accrued.” But, our “saving statute” provides that if the “person entitled to commence an action” is, at the time the cause of action accrued, either (1) within the age of eighteen years or (2) of unsound mind, such person, or his representatives and privies, as the case may be, may commence the action — after the removal of such disability — within the time of limitation for the particular cause of action, unless it exceed three years, and in that case within three years from the removal of such disability. T.C.A. § 28-107. Who is the “person entitled to commence an action” for damages for wrongful death? Is it the beneficiary specified in the statute or is it the decedent? If the former, the statute of limitations has not run in this case.

The death of a person under disability removes the disability and sets the statute to running; thus, if a person under a disability, such as the deceased mother in this case, had a cause of action for personal injuries, that action must be commenced within one year after his or her death. Griffith v. Nashville C. & St. Louis Railway, 147 Tenn. 224, 246 S.W. 532 (1922). Cumulative disabilities in different persons will not prevent the bar; if the person to whom a cause of action for personal injuries accrues is under a disability and dies before its removal, the persons inheriting his right of action must commence an action within one year of his death regardless of their own disabilities; it was this rule which the Court of Appeals applied in holding this action to be barred. Only the disability of the person to whom the cause of action first accrues will toll the statute of limitations. Jones v. Coal Creek Mining & Mfg. Co., 133 Tenn. 159, 180 S.W. 179 (1915); East Ten nessee Iron and Coal Company v. Wiggin, 68 F. 446 (U.S. 6th Cir. 1895); 51 Am.Jur.2d 752, Limitation of Actions, § 184. It is thus apparent that with respect to application of the statute of limitations to a wrongful death action, the critical question is: To whom does the cause of action accrue?

The majority relies upon the decision of this Court in Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (1899), as authority for the proposition that a cause of action for wrongful death accrues to the decedent at the time the injuries are inflicted. In that case the plaintiff was only six months of age when his parents were shot and instantly killed. No representative of the estate of the deceased father or mother was appointed and no guardian was appointed for the child. More than one year after the killings, the child, by next friend, instituted suit against the alleged murderers for the wrongful deaths of the father and mother. This Court held that the actions were barred by the one year statute of limitations upon the theory that the wrongful death statute, T.C.A. § 20-607, provides only for the survival of the cause of action of a decedent and does not create a new cause of action for the beneficiaries; and, therefore, that the cause of action accrued to the decedents at the moment of injury and was barred one year from that time.

The Court said:

“It is is evident that if the right of action be that of the deceased, and commences to run when the injury is done, the minority of the beneficiary will not be material, as the statute will continue to run and not be suspended during minority. Otherwise, if the right of action be an independent one in the minor, not derived from the deceased, the statute would not commence to run during the minority, the cause having arisen while the claimant was a minor.” Id. at 134.

Paradoxically, the Court also held that fraudulent concealment of the cause of action would prevent the running of the statute against the minor beneficiary. In my opinion, the Whaley decision is unjust and illogical and is not mandated by any legislative act. I would overrule it.

Wrongful death statutes may be classified into three categories, according to their peculiar wording: (1) wrongful death statutes, (2) survival statutes, and (3) hybrid (survival-wrongful death) statutes.

A majority of the states have enacted wrongful death statutes. These statutes are modeled after Lord Campbell’s Act, which provided:

“An act for compensating the families of persons killed by accidents—
“Whereas no action at law is now maintainable against the person who by his wrongful act, neglect, or default may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him; be it therefore enacted by the Queen’s most excellent majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, that whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
“And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injuries resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties in such shares as the jury by their verdict shall find and direct.”

This kind of statute, both in the courts of the American states and of England, has been construed, not as providing for the survival of any right of action which the injured person would have had but for his death, but as creating an independent cause of action on behalf of the beneficiaries specified therein for the purpose of compensating them for the pecuniary deprivation resulting to them from his wrongful death. Michigan Central Railway Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913).

However, many states, in addition to a wrongful death statute, have also enacted a statute providing for the survival of the cause of action for personal injuries which a deceased person had before he died.

“Similarly there was a corresponding failure in the common law to provide remedy for personal injuries to a person who died either before bringing or before completing a personal injury action. At common law, the action or cause of action for such injury would abate and be forever lost if the injured person died before the action was commenced or before judgment was entered therein. Just as Lord Campbell’s Act provided a remedy for wrongful death, the “survival statute” provided a remedy for the personal injury in cases where the injured person died.” S. Speiser, Recovery For Wrongful Death, § 14: 1 at 743 (1966).

The difference between these two types of statutes is apparent; the former creates a new cause of action for the death itself while the latter only preserves the decedent’s right of action for personal injuries.

“Wrongful-death statutes are to be distinguished from survival statutes. The latter have been separately enacted to abrogate the common-law rule that an action for tort abated at the death of either the injured person or the tort-feasor. Survival statutes permit the deceased’s estate to prosecute any claims for personal injury the deceased would have had, but for his death. They do not permit recovery for harms suffered by the deceased’s family as a result of his death.” Sea-Land Services, Inc. v. Gaudet (1974) 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9.

The third category of wrongful death statutes, the hybrid statutes, combines the elements of both the “wrongful death” and the “survival” acts. These peculiar statutes exist in only a handful of states, including Tennessee. They allow the statutory beneficiaries to recover damages for the injuries to the deceased and also for the damages to the beneficiaries resulting from the deceased’s death. Thus, our statute, T.C.A. § 20-614, provides:

“Damages recoverable in wrongful death. —Where a person’s death is caused by the wrongful act, fault, or omission of another, and suit is brought for damages, as provided by §§ 20-607 and 20-608, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages resulting to the parties for whose use and benefit the right of action survives from the death consequent upon the injuries received.” (Emphasis added.)

In applying the statute of limitations to actions brought under wrongful death statutes, the courts have generally held that the cause of action accrues to the beneficiary, and that the statute of limitations begins to run at the time of death. Frazee v. Partney, 314 S.W.2d 915 (Mo.1958); Dodson v. Continental Can Co., 159 Wash. 589, 294 P. 265 (1930); Smith v. McComb Infirmary Association, 196 So.2d 91 (Miss.1967); Restatement of Torts, § 899, Comment C.

Conversely, where the statute conferring the right of action is construed to be a survival statute, it has been generally held that the cause of action accrues to the decedent and the statute of limitations begins to run at the time of the injury. Whaley v. Catlett, supra; Gardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922); Natseway v. Jojola, 56 N.Mex. 793, 251 P.2d 274 (1952).

How, then, should a hybrid statute such as ours be construed, as a wrongful death act or as a survival act? In my view, neither logic nor public policy supports a construction of such a statute as a survival act. It is obvious that a deceased person never had a cause of action to recover damages for the loss resulting to his family from his own death. How, then, can such an action be deemed to “survive” to his family? It must have accrued directly to them by reason of, and at the time of, his death. The statute by its terms makes death of the injured person a condition precedent to the accrual of a cause of action. T.C.A. § 20-607. There can be no “action for wrongful death” until death occurs; death is one of the elements making up the cause of action. It is pure fiction to say that a person ever had the right to sue for his own death. Furthermore, as was pointed out by the Court of Appeals in its opinion in this case, to hold that the cause of action for wrongful death accrues to the decedent at the time of injury and that the statute of limitations begins to run at that time would result in the denial of a cause of action altogether, thus frustrating the purpose of the statute, in a case in which the deceased survived his injuries for more than one year and then died therefrom without filing suit. I cannot countenance a rule which works such an absurd result.

“While the husband and father lives, there is no right of action in the wife and children. The right only accrues at his death, and then, only, for the consequences resulting to them from such death. If the husband and father being injured, linger for more than twelve months without bringing suit and then die, I do not think that the doctrine, that more than one year, from the injuries to the death having elapsed, will bar the right to sue for the benefit of the widow and children, can be maintained; for the very strong reason that no such right existed during that time. Time never runs against that which has no existence. A right of action must first accrue to and vest in a party before time can commence to operate against it or destroy it.” Fowlkes v. Railroad Company, 9 Heiskell 829, 838-839 (Turney, J., dissenting).

As I construe them, the sections of the code which go to make up our “wrongful death statute” create a new cause of action, which is not complete until the death of the person injured; this cause of action accrues to the statutory beneficiaries, not to the deceased person, and it accrues at the time of death, not at the time the fatal injuries are inflicted. This construction is in harmony with the more recent decisions upon this subject. See Cross v. Pac. Gas & Elec. Co., 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353 (1964); St. Frances Hosp., Inc. v. Thompson, 159 Fla. 453, 31 So.2d 710 (1947); Rogers v. Smith, K. & French Lab., 5 Ariz. App. 553, 429 P.2d 4 (1967); Parker v. Chrysler M. Corp., 88 Nev. 560, 502 P.2d 111 (1972). Furthermore, such a construction would not alter the rule of damages or diminish the award in any such case, as suggested in the majority opinion. T.C.A. § 20-614 expressly provides the elements of damages for which recovery may be allowed.

I would hold that the right of action asserted in this case accrued to the infant plaintiff, Anthony Lamar Jones, the statutory beneficiary, at the time of his mother’s death on June 13, 1971, but, as provided by the saving statute, T.C.A. § 28-107, that the statute of limitations would not begin to run against this infant plaintiff until he reaches the age of eighteen years; hence, this suit was timely filed and should not have been dismissed.


source: Caselaw Access Project

author: PARROTT, Presiding Judge.

license: Public Domain

text:
    Sally LANDERS, Appellee, v. The KROGER COMPANY, Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    March 12, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      James A. Ridley, III, of Kramer, Johnson, Rayson, Greenwood & McVeigh, Knoxville, for appellant.
    John T. Baugh, of Kennerly, Montgomery, Howard & Finley, Knoxville, for appel-lee.
   OPINION

PARROTT, Presiding Judge.

This malicious prosecution suit grows out of The Kroger Company’s criminally prosecuting plaintiff, Sally Landers, for fraudulently obtaining money by means of a check which was returned unpaid because of “insufficient funds.”

Kroger has appealed from the action of the circuit judge in overruling its motion for new trial and entering, in accord with a jury verdict, judgment for plaintiff in the amount of $5,000.00 compensatory damages and $2,500.00 punitive damages.

Sally Landers, a 17-year old University of Tennessee student from Chattanooga, living in a dormitory at Knoxville, cashed a $20.00 check at a Knoxville Kroger store on August 13,1974. On the face of the check was printed Miss Lander’s Chattanooga address and on the back of the check was written in longhand by Miss Landers her social security number and Knoxville address at a University of Tennessee dormitory.

It is admitted this check was returned to Kroger marked “insufficient funds.” Miss Landers testified that the night before she wrote the check she called her mother asking that some money be put in the bank. The undisputed proof shows that on September 10,1974, Kroger caused to be mailed to Miss Landers at her U. T. address a letter with adequate postage advising her that the check was returned for “insufficient funds.” On September 17, more than five days after mailing the notice, Kroger procured a warrant charging Miss Landers with fraudulently obtaining money by means of a worthless check. Kroger did not send a letter to her Chattanooga address, nor did it attempt to call the Chattanooga phone number. The Kroger employees say they are sure they tried to telephone Miss Landers at Knoxville but have no specific recollection of the phone call. Miss Landers testified she never received the written notice or a telephone call.

In the latter part of September when Miss Landers returned to U. T., she moved to another dormitory where, on September 28, 45 days after writing the check, she was arrested on the warrant procured on September 19.

After Miss Landers’ arrest at the dormitory, she was taken to the Knox County jail where it was discovered she was only 17 years of age. After discovering she was a minor, Miss Landers was taken to the Knox County Juvenile Court. At the juvenile court, counselor Mary Martha White, after interviewing Miss Landers, conferred with the juvenile judge and it was apparently agreed to handle the matter on an informal basis. Counselor White placed a call to the Kroger store asking that, if Miss Landers would pick up and pay the check, would Kroger dismiss the prosecution. Kroger agreed to Counselor White’s suggestion which was agreeable to Miss Landers.

Miss Landers testified that when she went to the Kroger store to pay the check she saw a letter with her name and Knoxville address on it which she thinks had stamped on it in red “Return to Sender.” Michael Jackson, co-manager of the Kroger store where Miss Landers picked up the check, testified the letter to Miss Landers was not returned and he never had it in his possession.

For a plaintiff to be successful in a malicious prosecution case growing out of an arrest for an alleged criminal act, it must be alleged and provide that: a criminal proceeding has been instituted by the defendant against the plaintiff; such proceeding terminated in favor of accused; there was an absence of probable cause for the proceeding; and, there was malice or a primary purpose other than that of bringing defender to justice. F. W. Woolworth Co. v. Connors, 142 Tenn. 678, 222 S.W. 1053 (1920); Pharis v. Lambert, 33 Tenn. 228 (1853); Restatement of Torts, Wrongful Prosecution, Sec. 653; Prosser Law of Torts, 4th ed., Sec. 119.

“Definitions of probable cause, however differently expressed, all agree in these two essentials: (1) The prosecutor must in good faith have honestly believed the accused was guilty of the crime charged; and (2) his belief must have been reasonable — based on facts and circumstances sufficient to lead an ordinarily prudent person to believe the accused was guilty of the crime charged. The prosecutor must have made the investigation an ordinarily prudent person would have made in the circumstances.” Thompson v. Schulz, 34 Tenn.App. 488, 240 S.W.2d 252 (1940).

In a malicious prosecution action the existence or lack of existence of probable cause is a question of law for the court. When probable cause is to be determined from undisputed or admitted facts, the determination is a matter of law exclusively for the court. Cohen v. Cook, 224 Tenn. 729, 462 S.W.2d 499 (1970); Peoples Protective Life Ins. Co. v. Neuhoff, 56 Tenn.App. 346, 407 S.W.2d 190 (1966).

Under the facts of this case and the applicable law we believe the defendant had probable cause to arrest Miss Landers. Prior to procuring the arrest warrant, Kroger had fully complied with all the statutory requirements by giving Miss Landers written notice and waiting more than five days.

T.C.A. § 39-1960 provides that a drawer of a check which is returned for insufficient funds is guilty of prima facie fraudulent intent if the check is not paid within five days after receiving notice that the check has not been paid by the drawee (bank). T.C.A. § 39-1961 defines notice as “not only notice given to the person entitled thereto in person, but also notice given to such person in writing.” The statute goes on to provide that it will be presumed that proper notice has been given when the holder of the check deposits in the mail the written notice to the last known address of the maker with adequate and sufficient postage. It is true this statutory presumption is one of the barest and disappears with the introduction of evidence to rebut. State v. Rice, 490 S.W.2d 516 (Tenn.1973). However, in this case, we find no evidence from which it can be inferred that at the time Kroger procured the arrest warrant the notice had been returned to Kroger or that Kroger had any knowledge or should have known Miss Landers had not received their written notice which was deposited in the mail with adequate postage.

Even when accepted as true Miss Landers’ testimony, as we are required to in considering a motion for directed verdict, that on the day she paid the check Kroger had in its possession the written notice mailed to Miss Landers, such only proves that at some point in time Kroger knew Miss Landers had not received the notice of nonpayment. In no way from this evidence can it be inferred that Kroger at the time it procured the warrant had notice or knowledge that its letter had not been received by Miss Landers. Since there is no other evidence showing that at the time the arrest warrant was procured Kroger knew or should have known Miss Landers had not received the written notice, Kroger had a right to rely upon the statutory presumption that its written notice had been received by Miss Landers. Thus we think, under the proof along with the presumption, Kroger had probable cause to procure the arrest of Miss Landers. Conversely, plaintiff has failed to carry the burden of proof in showing a lack of probable cause. With the undisputed evidence showing an existence of probable cause, such becomes a matter of law for the court to determine and not the jury.

We believe there is an additional reason Miss Landers is not entitled to a recovery in this action. She has also failed to carry the burden of proving that the criminal proceeding terminated in favor of the “accused,” which is an essential element necessary to recover in a malicious prosecution action. Prom the testimony of Judge Douglass, the notation placed on the warrant, and Counselor White’s testimony, the undisputed proof shows the criminal proceeding instituted by Kroger was compromised and settled. Also, we think it significant that the initiation of the compromise did not come from Kroger but came from the juvenile court authorities. There is absolutely no evidence from which it can be inferred Miss Landers was put under duress or coerced by Kroger to enter into a settlement of the criminal proceeding. Kroger merely acceded to the suggestion of the juvenile authorities which was acceptable to Miss Landers. Under such circumstances it must be said a compromise or settlement, voluntarily and understandingly, was consummated by or on behalf of the accused. Therefore, as a matter of law, there was not a favorable termination so as to support an action of malicious prosecution.

Martin v. Wahl, 17 Tenn.App. 192, 66 S.W.2d 608 (1933), enunciates the general rule that a termination of a suit by way of compromise and settlement is not sufficient to support an action for malicious prosecution.

“It is generally held that where the original proceeding has been terminated without regard to its merits or propriety by agreement or settlement of the parties, or solely by the procurement of the accused as a matter of favor, or as the result of some act, trick, or device, preventing action and consideration by the court, there is no such termination as may be availed of for the purpose of an action for malicious prosecution.”

For authorities of like import see Restatement of Torts, Sec. 660; Prosser on Torts, 4th Ed. at p. 854 (1971); 52 Am.Jur.2d, Malicious Prosecution, Sec. 43; 54 C.J.S. Malicious Prosecution § 58; Merritt-Chapman & Scott Corp. v. Elgin Coal, Inc. (D.C.Tenn.) 358 F.Supp. 17 (applying Tennessee law), affirmed without opinion (C.A.6 Tenn.) 447 F.2d 598.

For the foregoing reasons a verdict is directed for defendant; the judgment entered for plaintiff is vacated with costs of all proceedings taxed to plaintiff.

SANDERS, J., and LUKE M. McAMIS, Special Judge, concur.


author: NEARN, Judge.

text:
    David HURT, Sr. and David Hurt, Jr. d/b/a Hurt Seed Company, Appellants, v. Freddie EARNHART, Appellee.
    Court of Appeals of Tennessee, Western Section.
    March 16, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      A. D. Walker, Jr., Dyersburg, for appellants.
    T. J. Emison, Jr., Alamo, for appellee.
   NEARN, Judge.

Freddie Earnhart entered into a contract with Hurt Seed Company to deliver 10,000 bushels of soybeans to Hurt Seed Company by the end of November 1972, for which beans Hurt was to pay $3.25 per bushel. Earnhart did not deliver the full 10,000 bushels contracted for and Hurt sued for its damages in the Chancery Court of Lauder-dale County on March 15, 1973.

The defendant filed his answer which denied the damages as alleged and demanded a jury to try the issues of fact.

Thirteen issues were submitted to the jury for determination. The jury returned their answers on seven of the issues and announced they were “hung” on the remainder. The Chancellor took the seven issues that were answered and framed or based his decree thereon. The unanswered issues were deemed immaterial.

The decree awarded Hurt a judgment for $2,396.94 instead of the $17,835.33 sued for.

Hurt has appealed with seven Assignments of Error. Five of those seven are addressed to the preponderance of the evidence and insist that we should weigh same and reverse if we conclude contrary to the finding of the jury. The remaining two assignments in essence fault the Chancellor for not ignoring the jury verdict and for directing a verdict for the plaintiff in the amount sued for of $17,835.33.

The manner in which the Assignments of Error are considered is dependent upon whether this matter has arrived in this Court for a de novo review under T.C.A. § 27-303 or for a review of a jury verdict as at law under T.C.A. § 27-302. That is to say, do we weigh the evidence and make our own conclusions as to facts, or are we bound by the verdict of the jury and limited in our review of facts only to see if there is any material evidence to support the findings of the jury? The difference in these scopes of review is the difference between daylight and dark.

To follow the history of the jury verdict in Chancery cases in this State is like riding a judicial see saw. At times the effect of such a jury verdict has been at the pinnacle of persuasive power and at other times— the abysmal bottom. This teeter totter effect has been caused by the legislative enactment of laws and the repeal of those laws. This fluctuation has in turn caused some confusion among members of the bar; some reported cases hold that the Chancery jury verdict is advisory only, and others hold that it has the same force and effect as a jury verdict at law. Both lines of cases are correct, for the correctness of the holdings depends upon a combination of three things, viz: (a) the nature of the litigation, (b) the statutes in existence at the time of the holding, and (c) whether the jury was called for by either of the parties or by the Chancellor.

Judge Matherne of this Court, in the case of State Ex Rel. Webster v. Daugherty (1975 Tenn.App., W.S.) 530 S.W.2d 81, in an excellent manner set out the history in this State of the Chancery jury trial and verdict, beginning prior to the American Revolution and bringing us to current times. The statutes and cases governing the matter were all concatenated in frame of time down to Ashe v. State Ex Rel. Shriver (1975 Tenn.) 518 S.W.2d 360. There is no need to attempt to reiterate that work here.

Until the Legislature shall again speak on the subject, the general rule of law in this State now is that a party to a suit of an inherently equitable nature in the Chancery Court cannot demand a jury as a matter of right. If the Chancellor allows a jury in a matter of an inherently equitable nature, whether it be on application of counsel or not, the effect of the verdict of such jury will be advisory only — the same as if the Chancellor had impanelled the jury on his own initiative. In such cases the Chancellor would weigh and find the facts himself in determining the issues. State Ex Rel. Webster v. Daugherty, supra; Ashe v. State Ex Rel. Shriver, supra. Therefore, a review of such case would be de novo in this Court with issues of fact being weighed by the preponderance of the evidence. However, the foregoing rule has application only to cases of an inherently equitable nature. The case sub judice is for damages for breach of contract. Jurisdiction of the Chancery Court in this matter is by statute. T.C.A. § 16-602; also see Choctaw, Inc. v. Evans (1970 Tenn.App., W.S.) 482 S.W.2d 563. Therefore, it cannot be a case of an inherently equitable nature. If it were, it would need no statutory assistance to reach the Chancery Court.

The rule in cases of a non-equitable nature tried in the Chancery Court is that a party, as a matter of right, may demand a jury to try issues of fact, and the verdict of a jury so demanded has all the weight and effect of a verdict at law. The Trial Judge may reject it in his capacity as thirteenth juror, but such rejection leads to a new trial with a new jury — not a substituted verdict by the Chancellor. In such cases on appeal, just as the Trial Court could not, we cannot substitute our judgment of the facts for that of the jury, but must review only to see if there are any material facts to support the verdict of the jury. State Ex Rel. Webster v. Daugherty, supra; Ashe v. State Ex Rel. Shriver, supra.

Accordingly, the five Assignments of Error directed to the preponderance of the evidence cannot be considered by this Court and are overruled.

The remaining two Assignments of Error put forth the argument that since the jury did not decide all issues the Chancellor should have withdrawn the issues from the jury and decided all the facts for himself in favor of the plaintiff. What we have previously said regarding the efficacy of a Chancery jury verdict in matters of this nature would preclude the Chancellor from finding the facts for himself. However, if the verdict was legally improper, the proper thing would have been to grant a new trial as in any jury case at law. Therefore, we will treat the last two Assignments of Error as complaints that because of the incompleteness of the verdict due to fewer than all issues being answered, a new trial should have been granted.

A party with the right to a jury trial has the right to have all issues determined at one time by one jury. Tenn. Const. Art. 1, § 6; Harbison v. Briggs Bros. Paint Mfg. Co. (1962) 209 Tenn. 534, 354 S.W.2d 464. The exception to that rule is found in Perkins v. Brown (1915) 132 Tenn. 294, 177 S.W. 1158, wherein it was announced, that in those cases where liability is a foregone conclusion and an error has been committed in the assessment of damages, the case may be remanded by the appellate court for assessment of damages only by a different jury. Also see Bauman v. Smith (1972 Tenn.App., W.S.) 499 S.W.2d 935. Therefore in the case now before us, the parties had the right to have the issues tried by one jury. However, the right to a trial of issues by jury is only the right to a determination by that body of material issues. No one has the right to a determination of immaterial issues for they are dis-positive of nothing and a waste of time. See Wright v. Jackson Construction Co. (1917) 138 Tenn. 145, 196 S.W. 488.

The theory of the plaintiff was that Earnhart, by written contract, had agreed to deliver to plaintiff 10,000 bushels of soybeans at $3.25 per bushel by November 30, 1972; that Earnhart had only partially performed by the contract delivery date, but because of bad weather during the 1972 harvest season, the parties by agreement extended the contract delivery date; and that Earnhart repudiated his contract on March 3, 1973, at about which time beans were bringing $6.71 per bushel and Earn-hart had failed to deliver 5,154.72 bushels of beans. Therefore, plaintiff was entitled to damages computed at the difference between the contract price and the market price of beans at the time of breach or $3.46 times number of undelivered bushels of beans.

The theory of the defendant was that although he admittedly was short 5,154.72 bushels under the contract, the plaintiff well knew in the first part of December 1972, that defendant was not going to deliver the remainder of the beans due under the contract, and therefore plaintiff’s damages should be computed by taking the difference between the contract price ($3.25) and the market price of beans on December 1, 1972, ($3,715), which difference is $.465, times the number of contract beans undelivered.

Prior to trial, the following stipulations were agreed upon:

“1st. That the market price per bushel for soyabeans at Hales Point, Tennessee on December 1, 1972 was $3,715 per bushel.
2nd. That the Plaintiff, Hurt Seed Company admits that it knew on December 1, 1972 that Freddie Earnhart had not delivered to Hurt Seed Company 10,000 bushels of soyabeans.
3rd. That the Plaintiff, Hurt Seed Company did not purchase soyabe-ans on December 1, 1972 to cover the shortage on Freddie Earn-hart’s account.”

From the foregoing statement of positions it is evident that the key issue is when did the plaintiff know that the contract had been breached? The answer to that question, coupled with a reading of T.C.A. § 47-2-713 and the stipulations, accompanied by an application of a calculator, equals a conclusion of the case.

The sixth issue submitted to the jury and their answer is as follows:

“What was the first date that Hurt Seed Company or an authorized representative thereof knew that the alleged contract had been breached or could not be performed by Freddie Earnhart?
Answer ‘Date’: 1 Dec. 1972 ”

The other seven so called issues were either undisputed issues such as:

“Did Freddie Earnhart agree to deliver to Hurt Seed Company, Halls, Tennessee, ten thousand (10,000) bushels of soyabe-ans during the months of October and November, 1972?
Answer: ‘Yes’ or ‘No’: Yes ”

or were rendered immaterial by the answer to question No. 6, such as:

“Did Freddie Earnhart, after December 1, 1972, continue to perform under the alleged contract with Hurt Seed Company?
Answer ‘Yes’ or ‘No’:_”

We must conclude that the material issues were answered by the jury and the Chancellor committed no error in applying the stipulations, T.C.A. § 47-2-713 and a calculator thereto to arrive at the judgment amount of $2,396.94.

The remaining Assignments of Error are overruled and the decree below will be affirmed. Costs will be adjudged against appellant and surety.

CARNEY, P. J., not participating.

MATHERNE, J., concurs.

      . By special statute governing particular kinds of cases, some exceptions to the general rule are made e. g. T.C.A. § 36-812.

      . T.C.A. § 47-2-713 “Buyer’s damages for nondelivery or repudiation. — (1) Subject to the provisions of this chapter with respect to proof of market price (§ 47-2-723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided in this chapter (§ 47-2-715), but less expenses saved in consequence of the seller’s breach.
      (2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.”


author: O’BRIEN, Judge.

text:
    Eugene HARRIS, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Feb. 13, 1976.
    Certiorari Denied by Supreme Court June 7, 1976.
    Richard K. Evans, Kingston, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Richard Fisher, Dist. Atty. Gen., Cleveland, for respondent.
   O’BRIEN, Judge.

OPINION

This is an appeal from dismissal of a post-conviction petition without an eviden-tiary hearing.

A history of past criminal proceedings involving this defendant is essential to a proper determination of this case.

This petitioner was originally convicted of first degree murder in the early 1950’s. Some seventeen years later he was paroled from prison on this sentence. On August 31st, 1972, he was convicted of simple assault in McMinn County. This conviction resulted in assessment of a five hundred dollar ($500.00) fine and a sentence of eleven months and twenty-nine days in the McMinn County Jail. The trial judge gave defendant credit for three hundred forty days jail time prior to trial, and suspended the balance of the sentence. This conviction was affirmed by the Court of Criminal Appeals on March 12, 1973 (cert, denied Aug. 6, 1973). According to the pro se petition for post-conviction relief, petitioner was returned to the State Penitentiary on October 13th, 1971, for parole violation without benefit of a hearing of any kind. While serving the sentence imposed pursuant to his original first degree murder conviction, petitioner was again convicted on May 15th, 1973, for second degree murder as the result of a stabbing incident at the penitentiary. The sentence for this conviction was not less than ten nor more than twenty years to be served consecutively to his original conviction. The conviction was affirmed by this court on April 9th, 1974 (cert, denied June 17th, 1974).

The post-conviction petition, although containing many extraneous matters, alleged several abridgments of constitutional rights, among which was inadequacy of counsel for (1) failure to obtain witnesses requested by the defendant, (2) failure to challenge a juror who was acquainted with petitioner and also with the facts of the case, and another juror whose hearing was defective so that he could not hear the evidence.

The pro se petition is inexpertly drafted and does not comply with the provisions of T.C.A. Sec. 40-3804.

The record shows that the petition was filed on December 30th, 1974, and contains an order dated March 15th, 1975, which reads as follows:

“In this cause, the petitioner Eugene Harris has filed many petitions seeking release and continues to file petitions very frequently in this cause.
The Court has previously ruled and does now rule that the said Eugene Harris is presently serving a sentence imposed upon him in some other jurisdiction for a crime committed while in the penitentiary and he is not serving the sentence in the above styled cause and that his petitions for post conviction relief are prematurely brought and are thus dismissed. It is therefore ordered that the petitions entered in this cause by the said Eugene Harris are hereby dismissed and for nothing held.
Done on this the 15th day of March, 1975.”

A second order dated May 2nd, 1975, is as follows:

“In this cause, the petitioner Eugene Harris has filed many petitions seeking release and continues to file petitions very frequently in this cause.
The Court has previously ruled and does now rule that the said Eugene Harris is presently serving a sentence imposed upon him in some other jurisdiction for a crime committed while in the penitentiary and he is not serving the sentence in the above styled cause and that his petitions for post conviction relief are prematurely brought and are thus dismissed.
It is therefore ordered that the petitions entered in this cause by the said Eugene Harris are hereby dismissed and for nothing held, and the clerk is instructed to return all future petitions offered for filing until further orders of this Court.”

This petitioner effected an appeal on his own behalf in this case. The record, which contains in pertinent part only the various pleadings filed by petitioner, the answer of the State to the original petition, and the two orders heretofore set out, was transmitted to this Court where counsel was appointed for petitioner.

The brief on behalf of defendant contains two assignments of error:

(1) That the trial court did not comply with the statutory provisions of T.C.A. Sec. 40-3809, and T.C.A. Sec. 40-3804.
(2) That the trial court erred in denying an evidentiary hearing to determine whether appellant was denied effective assistance of counsel in abrogation of his constitutional rights.

The State resists the petition on the premise that T.C.A. Sec. 40-3802 requires that the petition be filed, “before the sentence has expired or has been fully satisfied”; and that T.C.A. Sec. 40-3803 requires that the petition be filed, “with the clerk of the court where the conviction occurred”, conceding however that our appellate courts have held that a petition for post-conviction relief shall not be dismissed for mootness when the consequences related in the petition may continue to effect a petitioner adversely. Daugherty v. State, 4 Tenn.Cr.App. 355, 470 S.W.2d 865; Parton v. State, 483 S.W.2d 753 (Tenn.Cr.App.1972), cert. denied, 409 U.S. 871, 93 S.Ct. 201, 34 L.Ed.2d 122; Holt v. State, 489 S.W.2d 845, (Tenn.Cr.App.1972).

The petition alleges numerous collateral legal consequences which have been imposed and unquestionably have affected petitioner on the basis of the challenged conviction. He says his parole on his previous conviction was revoked without a hearing. He alleges adverse administrative action against him in prison as a result of his conviction. Later pleadings filed indicate a denial of relief on a federal habeas corpus proceeding until State remedies are exhausted. Whether or not these allegations can be sustained after compliance with T.C.A. Sec. 40-3804 is a matter which must first be determined in the trial court.

There can be no question that petitioner did not have an opportunity to raise the questions contained in his petition before his sentence had expired. His sentence was completed for all intents and purposes before his trial was concluded. The sentence has not been fully satisfied until all collateral legal consequences are obviated. Counsel has already been appointed by this court. The cause is remanded for amendment of the petition to conform with the requirements of T.C.A. Sec. 40-3804. When the petition has been competently drafted and all pertinent pleadings, files and récords of the case are filed, the trial court is directed to consider it in accordance with T.C.A. Sec. 40-3809 and in compliance with T.C.A. Sec. 40-3818.

Any appeal taken from the trial court’s judgment will be in conformance with T.C.A. Sec. 40-3822.

RUSSELL and DWYER, JJ., concur.


author: REAVLEY, Justice.

text:
    TEXAS STATE BOARD OF PHARMACY et al., Petitioners, v. GIBSON’S DISCOUNT CENTERS, INC., et al., Respondents.
    No. B-5745.
    Supreme Court of Texas.
    June 23, 1976.
    John L. Hill, Atty. Gen., David M. Kendall and Robert Gauss, Asst. Attys. Gen., Austin, for petitioners.
    Clark, Thomas, Winters & Shapiro, Mary Joe Carroll, Austin, Bardwell D. Odum, Robert E. Rader, Jr., Dallas, for respondents.
   REAVLEY, Justice.

The narrow question here is the jurisdiction of the Court of Civil Appeals as a consequence of the appellants indicating by their notice of appeal in the trial court that they would appeal to the Texas Supreme Court. The Court of Civil Appeals has dismissed the appeal for want of jurisdiction. 530 S.W.2d 332. We remand the cause to that Court for a determination of the merits of the appeal.

The judgment of the trial court enjoined Texas State Board of Pharmacy and other defendants from enforcing Tex.Rev.Civ. Stat.Ann. art. 4542a § 20A, subdivisions 11(a) and 11(d) (1973), related to advertising prescription drug prices. The defendants then filed with the district clerk a notice of appeal, which identified the cause and court and stated that the defendants “ . hereby give their Notice of Appeal from the amended Judgment entered in this cause on March 10, 1975, to the Supreme Court of the State of Texas.” On the same date and at the same moment the defendants also filed with the district clerk their request for findings of fact and conclusions of law, stating that same should “be filed with the Clerk of the Court as a part of the record herein within thirty (30) days before the time of filing of the transcript of this cause with the Court of Civil Appeals. . . . ”

Defendants took no further action to complete a direct appeal to the Supreme Court. They did file the record, sixty days after judgment, with the Clerk of the Court of Civil Appeals. That Court regarded the notice of appeal as having perfected an appeal to some court; and, since one appellate court must enjoy exclusive jurisdiction, it would have to be the one named in the notice of appeal: the Supreme Court.

The rules do not require the notice of appeal to identify the court to which the appeal is to be taken. Rule 353, Tex.R. Civ.P., as it stood prior to January 1, 1976, required only that the notice of appeal “state the number and style of the ease, the court in which pending, and that appellant desires to appeal from the judgment or from some designated portion thereof.” Under the rules as amended on January 1, 1976, only the appellant who is not required to give a bond for costs on appeal is required to give notice of appeal; and under Rule 354(c) the contents of the notice are precisely what was formerly required by Rule 353 and quoted above.

The designation of an incorrect court of civil appeals in the notice of appeal has been held to be immaterial and a matter of surplusage, having no effect upon the validity of the notice. Border State Life Ins. Co. v. Noble, 129 S.W.2d 321 (Tex.Civ.App.1939, no writ); Martin v. Rutherford, 153 S.W. 156 (Tex.Civ.App.1912, no writ).

The argument in the present case is that an appeal could have been taken to either of two appellate courts and that some appellate court must hold exclusive jurisdiction as of the time when the appeal is perfected. If the concurrent jurisdiction of two courts poses a problem, it has not been the scope of the notice of appeal to deal with that matter. Nor would the holding of the Court of Civil Appeals solve the problem. The State Board of Pharmacy could just as well have named no appellate court in its notice of appeal. Its option would have remained open and the same question of concurrent jurisdiction would have existed. Those parties required to post bond for costs need give no notice of appeal under present rules. If Rule 499a permits them to take a direct appeal to the Supreme Court, until the record is filed their option is always open. We find no rule of procedure or precedent compelling us to hold that the addition in the notice of appeal of the name of the appellate court will confine the appeal to that court. Therefore we will not deprive these appellants of their right to appeal by pronouncing such a rule.

Under the authority of Simon v. Brinkman & Co., 459 S.W.2d 190 (Tex.1970) and Bay v. Mecom, 393 S.W.2d 819 (Tex.1965), we may not now adjudicate the merits of the appeal. Accordingly, we reverse the judgment of the Court of Civil Appeals and order the cause reinstated on the docket of that court for a determination of the merits of the appeal.


author: ODOM, Judge. GUPTON, Judge

text:
    Carl WIGGINS, Appellant, v. The STATE of Texas, Appellee.
    No. 51538.
    Court of Criminal Appeals of Texas.
    July 19, 1976.

      William W. Keas, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty., and J. Grant Jones, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The offense is robbery under Art. 1408, V.A.P.C. (1925); the punishment, enhanced under V.T.C.A. Penal Code Sec. 12.42(d), life.

The indictment alleged appellant committed the primary offense of robbery and had previously been convicted of robbery in Cause No. 60,145 in the District Court of Tarrant County, Texas, on March 11, 1958, and of felony theft in Cause No. 46,298 in the District Court of Tarrant County, Texas, on November 27, 1945.

Appellant contends “the State failed to show that the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final.” In its brief, the State recites “the State agrees that the evidence does not support a finding that the offense relating to the 1958 conviction (State’s Exhibit 18) occurred after the 1945 conviction (State’s Exhibit 19).” The State contends, however, that the evidence is sufficient to sustain conviction under Art. 62, V.A.P.C. since “appellant did not file a motion to be punished under the new Penal Code.” The State misreads the record. Appellant timely filed a “Motion for Sever-ability of Punishment” requesting the court “to instruct the jury to assess punishment under the new Act, effective January 1, 1974.” The court charged the jury on the law applicable to second degree felonies, V.T.C.A. Penal Code, Sec. 12.33, and to habitual felony offenders, V.T.C.A. Penal Code, Sec. 12.42(d). The State’s contention is not supported by the record.

Sec. 12.42(d), supra, provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” (Emphasis added)

The showing that a second previous felony conviction occurred subsequent to the finality of the first prior conviction was also a requirement under Art. 63, V.A.P.C. See Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697; Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383; Lee v. State, Tex.Cr.App., 400 S.W.2d 909; Jones v. State, Tex.Cr.App., 422 S.W.2d 183; Jones v. State, Tex.Cr.App., 482 S.W.2d 634; Tyra v. State, Tex.Cr.App., 534 S.W.2d 695.

As conceded by the State, the evidence does not show the required sequence of events for enhancement under Sec. 12.42(d), supra. Although the error relates to punishment only, punishment was tried before the jury. Bray v. State, Tex.Cr.App., 531 S.W.2d 633.

For the error cited, the judgment is reversed and the cause remanded.

GUPTON, Judge

(dissenting).

The majority reverses this conviction because the State failed to show that appellant’s 1958 conviction in Cause No. 60,145 was for an offense which occurred subsequent to his 1945 conviction in Cause No. 46,298, both convictions having been had in the District Court of Tarrant County, Texas. I disagree, and therefore, dissent.

The indictment alleged appellant committed the primary offense of robbery and had previously been convicted of robbery in Cause No. 60,145 in the District Court of Tarrant County, Texas, on March 11, 1958, and of felony theft in Cause No. 46,298 in the District Court of Tarrant County, Texas, on November 27, 1945.

The evidence must show the offense for which appellant was convicted in Cause No. 60,145 occurred after the conviction in Cause No. 46,298 became final. The evidence in the present case is sufficient.

Authenticated copies of appellant’s prison record, including copies of the judgment and sentence in Cause Nos. 60,145, 60,146, 59,847, and 46,298 were introduced at the punishment phase of the trial under Art. 3731a, V.A.C.S. The pen packet also contained a biographical data card, a photograph of appellant, and a copy of his fingerprints. A fingerprint expert testified that the fingerprints in the pen packet were the same as fingerprints recently taken from appellant. This method of proof of establishing as a historical fact the prior convictions alleged has been consistently approved by this Court. Jackson v. State, Tex.Cr.App., 449 S.W.2d 279; Rascon v. State, Tex.Cr.App., 496 S.W.2d 99.

Appellant testified at the punishment phase of the trial. He admitted he was the same person who was convicted in Cause No. 46,298 on November 27, 1945, that he had served two years in the penitentiary for said conviction and was released in 1947. The record shows that he was born in February of 1928, and was seventeen years of age at the time of the trial.

Appellant denied he was the same person who was convicted in Cause No. 60,145 and Cause No. 60,146, but admitted he was the person convicted for robbery in Cause No. 59,847 in the District Court of Tarrant County, Texas, in 1958. He further stated that he received 30 years in said conviction and that he served six years in the penitentiary before being paroled.

The judgment in Cause No. 59,847 recites that appellant pled guilty to the offense of robbery and was convicted on January 29, 1958, and sentenced to 25 years. Appellant testified, “I got in trouble in 1958, February or March of 1958. I pled guilty to a robbery charge, and I was sentenced to 30 years in the Texas Department of Corrections.” The judgments in Cause Nos. 60,145 and 60,146 recite that appellant pled guilty to the offense of robbery in each cause. He was convicted and sentenced on March 11, 1958, to 30 years in each cause, the sentences to run concurrently. The judgment further recites that the court had found he had been confined in jail in these two causes since January 11, 1958. The prison record reflects appellant was received by the Texas Department of Corrections on “3-25-58” from Tarrant County and that he had been convicted in three causes for robbery, receiving two sentences of not less than five years nor more than 30 years and one sentence of not less than five years nor more than 25 years to run concurrently. His sentence is listed as 30 years beginning on “1-11-58”. Appellant testified he was on parole in 1964 from the sentence he was serving for the robbery which had occurred in Fort Worth in 1957.

Article 179 of the former Code of Criminal Procedure in effect at the time of each of the prior convictions provided that an indictment for robbery could be presented within five years of the date of the commission of the offense, but not afterward. In the present case the 1958 robbery conviction was over 12 years after the first conviction for felony theft.

Article 396 of the former Code of Criminal Procedure prescribed the requisites of an indictment and requires in subdivision No. 6 that:

“The time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation.”

An indictment or information is fundamentally defective if it shows upon its face that it is barred by limitation. Hodges v. State, Tex.Cr.App., 430 S.W.2d 204; Parr v. State, 307 S.W.2d 94; Donald v. State, 165 Tex.Cr.R. 252, 306 S.W.2d 360.

If the offense for which appellant was convicted in Cause No. 60,145 had been committed before November 27, 1945, the indictment had to be presented before November 27, 1950, or it would have been barred on its face by limitation. It is not reasonable or probable that the case would have been pending on the dockets for seven years and five months before it was tried.

Although the indictment in Cause No. 60,145 is not in the record, I find the evidence when viewed in its entirety is sufficient to show the conviction in Cause No. 60,145 was for an offense which occurred after the conviction in Cause No. 46,298 became final.

The judgment should be affirmed.

DOUGLAS, J., joins.