author: DOWD, Judge.

text:
    Joseph JACKSON, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 38253.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 8, 1977.
    Huck, Kasten, & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Preston Dean, Asst. Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., John D. Chancellor, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

This is an appeal by movant-appellant, Joseph Jackson, Jr., from an order of the circuit court of the City of St. Louis denying without an evidentiary hearing his motion to vacate sentence pursuant to Supreme Court Rule 27.26.

On November 8, 1971, movant entered a plea of guilty to the charge of murder first degree and was sentenced to life imprisonment. No transcript of the plea proceeding is available due to the death of the court reporter. The trial judge, Michael F. God-frey, noted from his own files, however, that two attorneys were appointed to represent movant, several pre-trial motions were filed, and the case was assigned for trial before movant entered his plea.

Movant filed a 27.26 motion to vacate judgment and sentence on May 17, 1976. His grounds for relief as set forth in his motion are as follows: (a) Movant was threatened by the trial court judge, Michael F. Godfrey, that unless movant were to enter a plea of guilty, he would be sentenced to death on the charge of First Degree Murder. This same threat was conveyed to movant by his court-appointed attorney, James C. Jones, III. Movant alleged that Judge Godfrey represented to him the authority of the State of Missouri and was thereby coerced into entering the plea of guilty. “Movant hereby declared his innocence of the charge.”

In response to question 9 of the 27.26 form movant made no additional statements of fact and stated that his witnesses and evidence would consist of the testimony of the trial court judge and his attorney. The circuit court denied the motion to vacate without appointment of counsel and without evidentiary hearing. In its opinion the trial court held that the motion did not present a question of law or fact which required a hearing or appointment of counsel. We found the learned trial judge’s detailed memorandum opinion helpful and relevant portions of it are made an appendix to this opinion.

The points raised by appellant can be consolidated into one issue: Whether the trial court erred in finding that the motion did not present a question of law or an issue of fact and could therefore be denied without an evidentiary hearing or the appointment of counsel. We agree with the trial court that the motion failed to meet the required standard for post-conviction review and therefore affirm the judgment below.

Before a movant is entitled to an evidentiary hearing, his motion must present factual allegations, not conclusions, which, if true, would entitle him to relief. Smith v. State, 513 S.W.2d 407 (Mo. Banc 1974) cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). Conclusions stated without supporting facts are insufficient to raise issues and hence do not require a hearing or the appointment of counsel. State v. Miner, 498 S.W.2d 814, 815[1] (Mo.App.1973). Jackson’s allegation that he was “threatened” is, in the absence of any further facts alleged to support it, a conclusion. The alleged statements of the trial judge, considered without the conclu-sional.term “threat,” are permissible statements. Even if true, allegations of such statements do not state a claim for relief.

The trial judge has the duty to advise a defendant of the consequences of his guilty plea, including the range of punishment which may result from his plea. State v. Conner, 500 S.W.2d 300, 303[3] (Mo.App.1972). At the time Jackson entered his plea, death or life imprisonment was the range of punishment for murder first degree. Inasmuch as movant referred to the imposition of the death penalty in his allegations, it is deducible that the trial judge advised movant that death was the maximum punishment for the offense with which he wás charged. Movant’s lawyer also should have advised him of the possibility of receiving the death penalty if he should stand trial. It should be noted that neither the judge nor movant’s attorney would have been able to carry out a threat to have the death penalty imposed, since movant had no prior convictions and therefore punishment would have been fixed by the jury in the event of trial.

Even if statements by the judge or his attorney caused movant to feel coerced in entering his plea of guilty, by warning him of the possibility that the death sentence would be imposed following trial, his plea was not therefore involuntary. It is by now well established that a plea of guilty entered to avoid the possibility of the death penalty is not thereby rendered involuntary. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Taylor v. State, 539 S.W.2d 589, 590[1] (Mo.App.1976); State v. Clay, 520 S.W.2d 172, 176[3] (Mo.App.1975). Movant’s dilemma in his decision whether to plea guilty in the expectation that he would receive a life sentence or stand trial and risk the death penalty, does not amount to coercion that renders a plea of guilty involuntary, even where the defendant protests his innocence. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Wells v. State, 504 S.W.2d 96, 97[1] (Mo.1974).

By merely labeling otherwise permissible statements threats, movant cannot, without other supporting facts, state a ground for relief. Taylor v. State, 539 S.W.2d 589, 590[1] (Mo.App.1976); Smith v. State, 513 S.W.2d 407, 411[2] (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Boss v. State, 517 S.W.2d 185, 187[3] (Mo.App.1974). We therefore approve the trial court finding that movant’s motion did not present a question of law or fact and that therefore the trial court did not err in failing to hold an evidentiary hearing.

We also find it significant that mov-ant waited 4½ years to file his motion. The trial court properly considered this fact in overruling the motion. While Rule 27.26 provides that a motion may be filed at anytime the defendant is in custody, it should be filed within a reasonable length of time, and delay is a relevant factor in consideration of the motion on its merits. Flood v. State, 476 S.W.2d 529, 534[4] (Mo.1972); Rhoades v. State, 504 S.W.2d 291, 292[1] (Mo.App.1973).

Movant argues that he is entitled to the opportunity to prove his allegations at a hearing because, due to the lack of a record of the guilty plea proceeding, his plea cannot be shown to be voluntary. This argument fails because we have held that mov-ant’s allegation of threat is a conclusion which does not state a ground for relief and that movant’s other allegations, even if he were to prove their truth, do not entitle him to relief. A hearing would therefore be a useless exercise. See, Trout v. State, 523 S.W.2d 529, 533[3] (Mo.App.1975); accord, Fisk v. State, 515 S.W.2d 865, 866[1] (Mo.App.1974).

Movant also contends that the trial court erred in not immediately appointing him counsel so that he could have amended his motion to include the new grounds he tried to raise unsuccessfully by a pro se motion filed after the trial court lost jurisdiction.

However, where, as in the present case, no issues are raised by the motion to vacate and a hearing is therefore not required, counsel need not be appointed. Winston v. State, 533 S.W.2d 709, 715[6] (Mo.App.1976); State v. Miner, 498 S.W.2d 814, 815[1] (Mo.App.1973).

The judgment is affirmed.

CLEMENS, P. J., and WEIER, J., concur.

APPENDIX

MEMORANDUM OPINION OF TRIAL JUDGE MICHAEL F. GODFREY

Thereafter, and on the 21st day of May 1976, Memorandum Opinion was filed, as follows: (Caption and signature omitted).

“Motion of Defendant filed under Rule 27.26 to Set Aside Conviction and Sentence alleges as grounds for relief the following:

“A. Movant was threatened by Judge Michael F. Godfrey that unless he pleaded guilty he would be sentenced to death on the charge of First Degree Murder.

“B. This threat was conveyed to Movant by his court-appointed attorney.

“C. That Judge Godfrey ‘represented to him the Authority of the State of Missouri and was thereby coerced into entering the plea of guilty.’

“D. Movant ‘hereby’ declares his innocence of the charge (emphasis added).

“It is settled law that a Court may take judicial notice of its own files and records in post-conviction proceedings. Parks vs. State [Mo.App.], 518 S.W.2d 181(8). This being so this Court notices that by indictment the Movant was charged with the felony offense of Murder First Degree, filed of record July 13, 1971. On July 20, 1971, and July 28, 1971, two attorneys were appointed to represent defendant. They thereafter filed Motion to Suppress, Motion to Dismiss and Notice of Defense. After a continuance was granted defendant on September 27, 1971, because of absence of witness Nathan Blackman, a second Amended Notice of Defense containing allegations of Mental Disease or Defect excluding responsibility was filed. On November 4, 1971, the State endorsed various witnesses it intended to call at the trial. On November 8, 1971, the Cause was assigned to Division No. 17 for trial. This Court on said date entered the following order:

“Upon the stipulation entered in Cause No. 2014-Q, which is directly connected with this Cause No. 1714-T, this Court finds beyond a reasonable doubt that this defendant is not incapacitated by any mental disease or defect which renders him unable to understand the proceedings against him or which renders him unable to assist in his own defense, and this is based both on the Stipulation of Competence to Proceed and the record made in Cause No. 2014-Q.

“On Monday, November 8, 1971, this Movant entered a plea of guilty to charge of Murder First Degree. A transcript of this plea was made, however due to death of the court reporter, Theodore Standroff, said transcript is not readily available, however, this Court knows the following:

“1) This Court has never conversed with movant or any other accused either in chambers or elsewhere save for the actual taking of a plea, and then only in open court.

“2) This Court has never ‘threatened’ accused or any other accused or importuned the entry of a plea of guilty to any charge by any defendant, and in fact, as hereinafter will be mentioned, has refused to accept pleas of guilty where the Court was not satisfied, beyond all doubt, after what this Court regards as thorough interrogation, that said pleas of guilty were knowingly, intelligently, freely and voluntarily made.

“With reference to the charges as set forth in (a), (b), (c), and (d), of paragraph 8 of the Motion, scrutiny will reveal that only vague, conclusionary and self-serving allegations are averred, and no facts are asserted or alleged upon which said allegations are based. Clearly the word ‘threatened’ is a conclusion, and this, even taking into account the context of the remaining portion of the assignment. In this regard it should be noted that there were no prior convictions pleaded and therefore the jury in the Cause not only had to find guilt or innocence but also to fix the punishment.

“Paragraph 8(b) appears to the Court to be contradictory to the averments contained in 8(a) and again said averments are vague, conclusionary and self-serving. As to 8(c) the wording of said assignment is vague in meaning, conclusionary, indefinite and self-serving, presenting no facts on which to predicate its merits. As to paragraph 8(d) the averment that ‘movant hereby declares his innocence of the charge’ appears to the Court to be nothing more than a conclusion-ary and self-serving statement.

“This plea of guilty was entered in the Cause on Monday, November 8, 1971, and Furman vs. Georgia, 408 U.S. 238, 33 L.Ed.[2d] 346, 92 S.Ct. 2726, was not decided until June 29, 1972, thus the range of punishment for Murder First Degree in this State was death or life imprisonment. As to the burden of proof in 2726 Motions, same is on Movant seeking relief (Mace vs. State [Mo.], 452 S.W.2d 130) and the grounds therefore must be proven and established by a preponderance of evidence. (Haynes vs. State [Mo.App.], 491 S.W.2d 10). Further, facts must be set forth and alleged sufficient to state a claim in order to entitle movant to a hearing on the issue raised. Shields vs. State [Mo.App.], 491 S.W.2d 6. Merely reciting conclusions, self-serving statements and vague assertions will not suffice. Brown vs. State [Mo.App.], 512 S.W.2d 404; Ross vs. State [Mo. App.], 417 [517] S.W.2d 185; Cook vs. State [Mo.App.], 511 S.W.2d 877; McCrary vs. State [Mo.App.], 529 S.W.2d 467; Keller vs. State [Mo.App.], 523 S.W.2d 127; Sherrill vs. State [Mo.App.], 515 S.W.2d 611; Cruz vs. State [Mo.App.], 515 S.W.2d 610; Wright vs. State [Mo.], 478 S.W.2d 347; Beisher [Beishir] vs. State [Mo.], 480 S.W.2d 883; Rowden vs. State [Mo.App.], 523 S.W.2d 102; Gailes vs. State [Mo.], 454 S.W.2d 561; Weaver vs. State [Mo.App.], 520 S.W.2d 640; Cooper vs. State [Mo.App.], 520 S.W.2d 666; Shields vs. State [Mo.App.], 491 S.W.2d 6; Fisk vs. State [Mo.App.], 515 S.W.2d 865; Thomas vs. State [Mo.], 485 S.W.2d 413; State vs. Miner [Mo.App.], 498 S.W.2d 814; Garrett vs. State [Mo.App.], 503 S.W.2d 45; State vs. Hale [Mo.], 400 S.W.2d 42; Montgomery vs. State [Mo.App.], 529 S.W.2d 8; Hurse vs. State [Mo.App.], 527 S.W.2d 34; Ward vs. State [Mo.], 451 S.W.2d 79. The assignment in said Motion is ruled against Movant.

“This Court in State vs. Eugene Ford [Mo.], 487 S.W.2d 1, refused to accept a plea of guilty wherein it appeared that defendant did not admit to the elements of the crime charged. In Beach vs. State [Mo.], 488 S.W.2d 652, the Court held that it must be shown that manifest injustice resulted from the acceptance of a plea of guilty. See also Winford vs. State [Mo.], 485 S.W.2d 43.

“Moving to a consideration of the merits of the grounds alleged in said Motion, the lack of merit of same is demonstrated by the following cases, to wit: Burks vs. State [Mo.], 490 S.W.2d 34; Dabbs vs. State [Mo.App.], 489 S.W.2d 745; Abercrombe [Abercrombie] vs. State [Mo.], 457 S.W.2d 758; Vaughn vs. State [Mo.], 443 S.W.2d 632; Fleck vs. State [Mo.], 443 S.W.2d 100; Jefferson vs. State [Mo.], 442 S.W.2d 6; Wells vs. State [Mo.], 504 S.W.2d 96; Hall vs. State [Mo.], 501 S.W.2d 1; Evans vs. State [Mo.], 477 S.W.2d 94; Skaggs vs. State [Mo.], 476 S.W.2d 524; State vs. Blackstone [Mo.], 456 S.W.2d 323; Ross vs. State [Mo.App.], 517 S.W.2d 185; Smith vs. State [Mo.], 513 S.W.2d 407; Nelson vs. State [Mo.App.], 508 S.W.2d 227.

“It is interesting to note that the alleged coerced plea was entered on November 8, 1971, and said Motion to Set Aside was not filed until May, 1976, almost four and one-half years thereafter. The Court may take this fact into consideration in considering the merits of the claim, Rhoades vs. State [Mo.App.], 504 S.W.2d 291, and in this regard, it is further noted that by and large four and one-half years is a substantial time for one to wait where he considers himself and his rights infringed upon.

“Considered in the light most favorable to Movant, there is no assignment in the Motion which would entitle the Movant to an evidentiary hearing, as said Motion does not present a question of law or an issue of fact which requires such a hearing. Humphrey vs. State [Mo.], 502 S.W.2d 251; Paulez [Pauley] vs. State [Mo.], 487 S.W.2d 565; Belts [Betts] vs. State [Mo.App.], 493 S.W.2d 361; Meeks vs. State [Mo.App.], 512 S.W.2d 215; Ross vs. State [Mo.App.], 517 S.W.2d 185; Hogshooter vs. State [Mo.App.], 514 S.W.2d 109; Bradley vs. State [Mo.], 494 S.W.2d 45; Perryman vs. State [Mo.App.], 506 S.W.2d 480; Smith vs. State [Mo.], 513 S.W.2d 407.

“Since this Court has determined and concluded that the Motion taken in its most favorable light to Movant presents no question of fact or issue of law for consideration, Counsel need not be appointed Duisen vs. State [Mo.], 504 S.W.2d 3; Jones vs. State [Mo.App.], 521 S.W.2d 504; Weaver vs. State [Mo.App.], 520 S.W.2d 640; Keller vs. State [Mo.App.], 523 S.W.2d 127; Ford vs. State [Mo.App.], 534 S.W.2d 111; Winston vs. State [Mo.App.], 533 S.W.2d 709.

“Defendant’s Motion is hereby overruled and denied in all respects.”


source: Caselaw Access Project

license: Public Domain

text:
    Waldemar S. KAY, Plaintiff-Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 37768.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 8, 1977.

      Fordyce & Mayne, Clayton, Leo V. Gar-vin, Jr., P. Terence Crebs, St. Louis, for defendant-appellant.
    Alfred J. Rathert, Fenton, for plaintiff-respondent.
   DOWD, Judge.

Metropolitan Life Insurance Company appeals from the decisions of the trial court adjudging appellant liable for insurance benefits to respondent under the terms of a group insurance policy and awarding respondent the penalty and attorney’s fees authorized in Section 375.420, RSMo Supp. 1975.

The parties stipulated that appellant affords respondent and his dependents secondary insurance coverage for hospital, medical, and surgical expenses under Policy Number 15351-G. By virtue of respondent’s military service, respondent and his dependents had obtained primary hospital, medical, and surgical insurance coverage under the “Champús” insurance plan. The parties dispute appellant’s liability for benefits under Policy 15351-G for the hospital, medical, and surgical expenses of respondent’s minor daughter in the years 1972, 1973, and 1974.

In 1972, respondent’s daughter incurred hospital, medical, and surgical expenses to-talling $2,086.20. The Champús plan paid $1,564.65 (75%) towards such expenses, and respondent claimed benefits under Policy 15351-G for the unpaid balance of $521.59. In 1973, respondent’s daughter incurred expenses of $2,146.50, towards which the Champús plan paid $1,609.87 (75%). The respondent claimed benefits under Policy 15351-G for the unpaid balance of $536.63. Respondent’s daughter incurred expenses of $1370.49 in 1974. The Champús plan paid $1,027.83 (75%) of these expenses, and respondent claimed benefits under Policy 15351-G for the unpaid balance of $342.66. Appellant denied respondent’s claims on the ground that such claims were not in excess of the deductible amount of Policy 15351-G. Appellant did initially pay respondent $104.86, apparently by mistake.

Appellant’s first point on appeal is that the trial court erred in not entering a judgment favorable to appellant because appellant was not liable to respondent under the terms of Policy 15351-G. “Covered Medical Expenses” under Policy 15351-G will be reimbursed only to the extent that they exceed the “Deductible Amount.” Appellant contends that Policy 15351-G required payments made under the Champús plan to be subtracted from respondent’s- medical expenses in order to determine “Covered Medical Expenses.” In addition, appellant argues that the “Deductible Amount” for respondent equalled the sum of $100.00 plus any payment made under the Champús plan. Thus, appellant argues that amounts paid under the Champús plan are twice used by Policy 15351-G to reduce benefits owed under the plan.

The provisions of Policy 15351-G pertinent to our decision may be summarized as follows: The insuring clause provides that the insurer will pay, upon proof of the claim, 80% of “Covered Medical Expenses” in excess of the “Deductible Amount.” “Covered Medical Expenses” exclude those expenses of the insured for which benefits have been provided under any other medical, surgical, or hospital insurance plan. “Deductible Amount” is defined as the sum of: (i) the “Basic Deductible Amount”, in this case, $100.00 and (ii) the aggregate of benefits provided under any other medical, surgical, or hospital insurance plan. Subsection (ii) also provides that the amount included in “Deductible Amount” for benefits provided under other plans shall not be less than $600 (for hospitalization) and $100 (for surgical expenses) if the insured’s other insurance plan is not the employer’s basic plan.

We believe that the terms of Policy 15351-G are ambiguous insofar as the policy defines “Deductible Amount” and construe the policy under the general rules of construction regarding insurance contracts. Insurance policies are to be given a reasonable construction consonant with the apparent objectives and intent of the parties. Hamiltonian Federal Sav. and Loan Ass’n v. Reliance Ins. Co., 527 S.W.2d 440, 442[2] (Mo.App.1975). Plain language in an insurance policy cannot be used to create an ambiguity where none exists; but if the policy is reasonably susceptible of more than one meaning, the ambiguity will be resolved in favor of the insured. United States Fidelity and Guar. Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 817[6, 7] (Mo.banc.1975). Although parties to an insurance contract may, by plain language, limit the liability of the insurer to the insured, MFA Mut. Ins. Co. v. Dunlap, 525 S.W.2d 766, 769[6] (Mo.App.1975), ambiguities in restrictive or exclusionary clauses are to be construed in favor of the insured. Allison v. Nat’l Ins. Underwriters, 487 S.W.2d 257, 262[2] (Mo.App.1972).

Subsection (ii) in the clause defining the “Deductible Amount” is ambiguous. The clause provides that “benefits otherwise provided under any other medical, surgical, or hospital group insurance plan” will be included in the “Deductible Amount”. However, the clause fails to indicate whether “benefits otherwise provided” refers to unclaimed benefits available under the primary insurance policy or whether the quoted language refers to all benefits paid to the insured under primary coverage.

“Deductible Amount” under Policy 15351-G is susceptible to two possible meanings. One possible meaning is, as appellant argues, that “Deductible Amount” equals the sum of $100.00 plus any payments made under the Champús plan. The harsh result of Policy 15351-G given this construction, is that the same amounts excluded under Policy 15351-G are then deducted under Policy 15351-G. The insured can recover under his secondary insurance policy only in the event that benefits paid under primary insurance coverage compensate less than 50% of his medical expenses.

Another possible meaning is that “Deductible Amount” equals the sum of $100.00 plus any payments made under the Champús plan toward “Covered Medical Expenses” under Policy 15351-G. Under this later construction, payments under the Champús plan would be included in the deductible amount only if benefits under the Champús plan were applied towards expenses covered by Policy 15351-G. If the insured’s medical expenses are paid under the Champús plan, and, therefore, not “Covered Medical Expenses” under Policy 15351-G, the payments under the Champús plan would not be deducted as a part of the “Deductible Amount”. Payments under the primary insurance policy would be excluded or deducted, but not both excluded and deducted.

We believe that the second construction of the clause defining “Deductible Amount” is the proper construction of Policy 15351-G. First, this interpretation of the policy favors the insured, and the court is required to construe ambiguities in favor of the insured. United States Fidelity and Guar. Co. v. Safeco Ins. Co., supra. The construction urged by appellant yields a harsh result that would allow compensation of medical expenses under Policy 15351-G only if the insured’s primary coverage paid less than one half of his medical expenses. Second, this interpretation of Policy 15351-G is consonant with the apparent intent of the parties. Hamiltonian Fed. Sav. and Loan Ass’n v. Reliance Ins. Co., supra. The purpose of including benefits available under different medical insurance plans as a part of the “Deductible Amount” is to prevent Policy 15351-G from becoming the insured’s primary medical insurance plan. This purpose is fully accomplished if the primary insurance carrier has already paid the insured under the primary insurance policy, thus eliminating those compensated medical expenses from the “Covered Medical Expenses” of Policy 15351-G. There does not appear to be any reason why payments under the primary insurance policy should be both excluded and deducted in order to prevent the insured from using his secondary insurance policy as his primary insurance policy. Subsection (ii) in the clause defining “Deductible Amount” is obviously meant to apply only in the situation in which the primary insurance carrier has not paid the insured under the primary medical insurance policy.

Because “Deductible Amount” is construed to include the amount of primary insurance coverage benefits only in event that such benefits have not been applied to reduce “Covered Medical Expenses”, the trial court was correct in finding appellant liable to respondent under the terms of Policy 15351-G. In 1972, respondent’s daughter incurred “Covered Medical Expenses” of $521.59. Appellant must pay benefits equalling the “Insured Proportion” (80%) of $521.59, less the “Deductible Amount” of $100.00. In 1973, respondent’s daughter incurred “Covered Medical Expenses” of $536.63. Policy 15351-G requires payment of benefits totalling the “Insured Proportion” of this sum, less the $100 “Deductible Amount”. In 1974, respondent’s daughter incurred “Covered Medical Expenses” of $342.66. After subtraction of the $100 “Deductible Amount”, appellant is required to provide benefits in the “Insured Proportion”.

Under Policy 15351-G, appellant owed respondent $232.41 for the year 1972 ($337.27 less the $104.86 payment made to respondent), $349.30 for the year 1973, and $194.13 for the year 1974. Benefits owing total $775.84.

Appellant’s next two points on appeal are that the trial court erred in granting respondent penalties and attorney’s fees under Section 375.420, RSMo Supp.1975. We agree with appellant that Section 375.-420 was improperly applied to appellant and reverse the trial court’s order awarding respondent a penalty of $70.00 and attorney’s fees of $1,650.00.

Section 375.420, supra, provides that if the evidence indicates that an insurance company has refused to pay for the insured’s loss without reasonable cause or excuse, the court may, in addition to the amount of recovery under the policy, award damages not greater than 20% of the first $1500 of the loss together with reasonable attorney’s fees.

Section 375.420, supra, is penal in nature and must be strictly construed. Housing Authority of City of Clinton ex rel. Evans Electrical Construction Co. v. Baumann, 512 S.W.2d 436, 440[4] (Mo.App.1974). If there is an open question of fact or law determinative of the insurer’s liability, the insurer, acting in good faith, may insist upon a judicial determination of such questions without being penalized therefore. Cox v. Washington Nat’l Ins. Co., 520 S.W.2d 76, 81[5] (Mo.App.1974). Only when the insurance company persists in its refusal to pay after becoming aware that it has no meritorious defense does the insurer become liable for vexatious delay. Cohen v. Metropolitan Life Ins. Co., 444 S.W.2d 498, 506[11] (Mo.App.1969).

Appellant was within its rights in forcing a judicial construction of Policy 15351-G. The penalty and attorney’s fees available to the insured under Section 375.-420, supra, were erroneously applied in this case.

The trial court’s order granting respondent $70.00 as penalty and attorney’s fees of $1,650.00 under Section 375.420 RSMo Supp.1975 is reversed. The trial court’s judgment finding appellant liable to respondent for medical benefits under Policy 15351-G is affirmed in the amount set forth in this opinion.

CLEMENS, P. J., and WEIER, J., concur.

      . The minimum deduction of $700 would apply to respondent’s case if Subsection (ii) applies. Respondent’s primary medical insurance plan was the Champús plan, not the employer’s basic plan, Blue Cross—Blue Shield.

      . We note that the trial court found appellant liable to the respondent in the amount of $727.87. The trial court’s judgment was based upon the figures contained in the petition. Our computations are based upon the figures contained in the “Agreed Statement of Facts” upon which this cause was tried. The trial court’s judgment must be modified in accordance with the figures set forth in the “Agreed Statement of Facts.”


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leonard W. SLOAN, Defendant-Appellant.
    No. 37595.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 8, 1977.

      Allen I. Harris, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, William F. Arnet, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   PER CURIAM.

This is an appeal by defendant-appellant, Leonard W. Sloan, from a judgment of conviction entered by the circuit court of the City of St. Louis on October 24, 1975, by which the appellant was sentenced to two years in the department of corrections for the offense of burglary, second degree. § 560.070, RSMo. The appellant was found guilty by the jury. The state having pleaded and proved a prior conviction, appellant was sentenced by the court under the Second Offender Act, § 556.280, RSMo.

A jury could reasonably find the following facts. Mr. James Bedrosian owned certain real property located at 3862 Olive Street in the City of St. Louis. He had owned the property since 1964. The building is located on the southeast corner of Vandeventer and Olive Streets in the city. He used the building as a “warehouse.” He kept lumber, paneling, paint, “plumbing stuff” and general storage therein. A few days before January 25, 1974, he closed up the premises and secured the front door. Included in the property stored therein was a sink and two copper refrigerator coils. These items were in his warehouse on January 21, 1974.

On January 25, 1974, Ms. Wanda Reeder, who lived a few doors from the warehouse at 3848 Olivé Street, was at home watching television. Shortly after 3:00 p. m. Ms. Reeder intended to move her automobile which was parked on Olive Street because “[y]ou have to move it before four o’clock; they have a traffic thing that you have to move it.” Shortly after 3:00 p. m., while in her house, she heard an “unusual noise”— she heard some glass breaking. The sound came “from the left of me” — towards the intersection of Olive and Vandeventer. When she heard the sound, she went downstairs and walked to the corner and saw that the “door, [of the warehouse] the bottom half of the door in the corner was broken.” She also saw a truck in which were “two gentlemen” and one “gentlemen [was] getting in the truck ” The pick-up truck which was parked on Vandeventer “drove away” and went “[d]own Vandeven-ter towards Washington.” She noticed the license plate on the truck and wrote the number down when she returned to her home. When she returned to her home, she called the police and Mr. Bedrosian and then went back downstairs to move her car. When she did so, one of her neighbors “yelled at me and told me to look down towards the corner.” When she looked, the same truck which she had seen before was parked on Olive Street.- One man (the appellant) was sitting in the truck and two men were “coming up the street carrying a sink.” Refrigerator coils were already in the pick-up truck at that time. She walked to the corner near the truck and “yelled” at two detectives to “come over.” The detectives were on Olive Street, at the curb, “stopped at the light.” Ms. Reeder remained on the scene. After the police arrived, she walked to the corner and there she saw a tire tool “propped up against a square thing that holds up the corner of the building.” When she went to the corner the second time, the refrigerator coils were in the pick-up truck and “the two gentlemen were carrying the sink and put it in the truck.” The appellant, Mr. Sloan, was sitting in the truck, and two other persons — Wiley Shields and Roy Waites — were carrying the sink. She did not see where they had gotten it from but “they were walking down the sidewalk with it and put it in the back of the truck.” She found broken glass in front of the door. The men, however, were neither cut nor bleeding.

When Ms. Reeder was at the intersection of Vandeventer and Olive Streets the second time, she hailed two detectives— William Pietrowski and Frank Ellis. They were working the 8:00 a. m. to 4:00 p. m. shift. Shortly after three o’clock on January 25, 1974, the officers were in the area working on another case when they saw a lady standing on the southeast corner of Vandeventer and Olive. She was calling “ ‘police officer, police officer, over here.’ ” They “got out” of their vehicle and talked to the lady. As a result of the conversation, they detained the three men, one of whom was the appellant, Mr. Sloan. Detective Pietrowski “[s]poke with the lady, . and informed the gentlemen what the lady had said and asked them to stay in the area, [and] that a uniformed policeman would come to make a full investigation.” At the scene, Detective Pietrowski saw “cooler coils,” a “sink” and a “broken window.” Officer Pietrowski saw the appellant, Sloan, in the driver’s side of the blue Ford pick-up truck. “He [appellant] got out a couple of times” and inquired “what was the matter — why was he being detained there.” The pick-up truck was parked about “twenty-five to thirty feet” from the building. While Sloan was in the truck, the other two men were on the sidewalk. Officer Pietrowski examined the glass door which contained several decals and which had a wooden frame about eighteen inches from the ground. The window, three and a half to four feet from the ground, was broken. Other officers eventually came onto the scene and the detectives left.

As stated, Ms. Reeder called the owner of the property, Mr. James Bedrosian. When he received the telephone call he came to the building. When he arrived he saw the “front window broken and two detectives and a truck with a sink and two refrigerator coils and three suspects.” He did not know the suspects and never gave them permission to go into the warehouse. When he arrived the front door was closed. He testified at trial that the sink and the two coils were in his warehouse on January 21, 1974, “about seven or eight feet from the front door.” He knew Wanda Reeder. On cross-examination he testified that he inspected the coils and sink while at the scene. When asked “What identifying marks did the sink have on it?”, he replied, “I know the sink; I pulled it out of a lavatory.”

Then the following occurred:

“Q. [By defense attorney]: What identifying marks did it have?
“A. I can’t say; the sink was missing out of the place and the coils came out of a beer box — that is all I know. As far as some identification, I can’t see there is any mark on them, you know.
“Q. Well you can’t see any identifying mark on this sink that shows it was your sink?
“A. No.
“Q. What makes these beer cooler coils any different than any other beer cooler coils?
“A. They are about the same.
“Q. How do you know they were your coils?
“A. Because they were missing out of my establishment.
“Q. You had some missing beer coils and a missing sink. Is there any way at all you can say that sink and beer coils were in fact the same beer coils and same sink that were in your place?
“A. I didn’t see the men carry them out, but they were gone out of the place.
“Q. That is not my question. Was there anything — did you have your name attached, a broken chip that you recognized?
“A. No, sir.”

On redirect examination, Mr. Bedrosian testified that the appellant offered him some money if he would not prosecute.

On February 15, 1974, an information was filed charging the appellant, Mr. Shields and Mr. Waites with burglary in the second degree. On June 30,1975, the information was amended to charge a prior conviction. Trial was held beginning on June 30, 1975, at which the above evidence was adduced.

At trial the appellant, Mr. Sloan, testified on his own behalf. He testified that he worked for a cab company and on January 25,1974, went to the Carioca Lounge where he met Shields and Waites. While there he had “[q]uite a few” drinks. While there a man — “I really don’t know the man” — told him about a job “[t]o move some stuff for him” and offered the three of them ten dollars to do a job for him. The “stuff” was at Vandeventer and Olive. The man had a green Volkswagen. They arrived at Vandeventer and Olive but did not see the Volkswagen. When appellant parked, he saw Ms. Reeder coming down the street

“. . . and she started screaming. I thought somebody was jumping on her. I jumped out of the truck to help her and the police were there. I said ‘what’s going on?’ This lady — I found out later after I was locked up — Helen Kaiser, said that man never did anything. They told me to get back in my truck. I got back in my truck. They stayed out there talking and I got out and said ‘what’s going on?’ They said to get back in the truck— you never had nothing to do with it — but they still locked me up.”

The appellant denied breaking any window and denied that the sink and coils were ever in his truck.

Both sides rested, instructions were given including the burglary and circumstantial evidence instruction (MAI-Cr 3.42), arguments were made and the jury found the appellant guilty of burglary in the second degree. After overruling the motion for new trial, the court granted allocution and sentenced the appellant to a minimum sentence of two years in the department of corrections.

Appellant appeals. On this appeal he contends that the court erred

. .in failing to dismiss this case on the grounds that the victim [Mr. Be-drosian] was unable to identify any property which might have been involved . as being his, therefore, negating the element in a burglary case that the breaking and entering must be with the intent to ‘steal’ or commit a felony.”

The thrust of appellant’s contention on this appeal, as we understand it, is that, since the victim, Mr. Bedrosian, was unable to identify the sink and coils as belonging to him, there was no showing that the breaking and entering of the warehouse was with intent to steal or commit a felony therein, an essential element of the offense, hence the trial court erred in denying the appellant’s motion for judgment of acquittal at the close of the evidence. Appellant also argues that the evidence produced was entirely circumstantial and that, since the property of Mr. Bedrosian was not properly identified, the lack of identification is not substantial evidence inconsistent with defendant’s innocence. Or, to phrase it another way, since there was no identification of the property by Mr. Bedrosian that his property was stolen, there was no intent on the part of the appellant to steal, hence an essential element of burglary was absent so that the court erred in denying the appellant’s motion for judgment of acquittal.

In determining whether the trial court erred in failing to sustain his motion for judgment of acquittal, or in the words of the appellant — failed to dismiss this case, we consider as true all the evidence favorable to the state and the favorable inferences to be drawn therefrom and reject evidence to the contrary. Our function is not to substitute our judgment for that of the jury, but we determine only whether the evidence, considered in the light most favorable to the state and disregarding evidence to the contrary, is sufficient to make a submissible case. If so, the finding of the jury should not be disturbed on appeal. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974).

Not only must we. view the evidence in a light favorable to the state but we are governed by other principles of law which may be briefly stated: (1) all persons who participate in an offense are equally at fault; (2) presence of an accused at the commission of an offense is evidence to be considered but to sustain a conviction something more must be shown. It is necessary that the accused associate himself with the venture in some manner. Any evidence showing any form of participation is sufficient to support the conviction by the jury. The. evidence to show participation may be circumstantial. But, in order to warrant a conviction based on circumstantial evidence, the facts and circumstances must be consistent with each other, be consistent with the hypothesis of the guilt of the accused, be inconsistent with innocence and point to guilt so as to exclude every reasonable hypothesis of innocence. State v. Cox, 527 S.W.2d 448, 452 (Mo.App.1975); State v. Burks, 521 S.W.2d 11, 14-15 (Mo.App.1975).

The elements of the offense of burglary in the second degree are well established. They are the breaking and entering with the intent to steal or to commit a felony. § 560.070, RSMo.; State v. Little, 501 S.W.2d 562, 563 (Mo.App.1973); State v. Cox, supra, 527 S.W.2d at 452. In State v. Parks, 336 S.W.2d 369, 370 (Mo.1960), our Supreme Court held that in order to sustain a conviction for burglary, the statute, § 560.070, merely requires evidence of a forcible breaking and entering into a building in which goods, wares and merchandise were kept under circumstances which would warrant an inference of an intent to steal.

While intent is an essential element of second degree burglary and must be established beyond a reasonable doubt, State v. Watson, 383 S.W.2d 753, 756 (Mo.1964), overruled on other grounds in State v. Ellifrits, 459 S.W.2d 293 (Mo. banc 1970), the requisite intent to steal may be proved from the circumstances in the case and may be established by circumstantial evidence. State v. Fritz, 379 S.W.2d 589, 590 (Mo.1964); State v. Smith, 357 S.W.2d 120, 123 (Mo.1962); State v. Shipman, 354 Mo. 265, 189 S.W.2d 273, 275 (1945); State v. Cox, supra, 527 S.W.2d at 458; State v. McBride, 366 S.W.2d 374, 377 (Mo.1963). See 13 Am. Jur.2d, Burglary, § 52, pp. 352-353 (1964). Circumstantial evidence is relevant and material to prove the requisite intent. The element of intent can rarely be shown by direct evidence hence may be shown by the reasonable inferences arising from the circumstances surrounding the act. State v. Ahern, 546 S.W.2d 20 (Mo.App.1976); State v. Massey, 542 S.W.2d 88 (Mo.App.1976). Intent may be inferred. State v. Everett, 448 S.W.2d 873, 877 (Mo.1970). An inference of guilt is permissible from the unexplained possession of personal property recently stolen in a burglary, State v. Grey, 525 S.W.2d 367, 369 (Mo.App.1975), State v. Mesmer, 501 S.W.2d 192, 195 (Mo.App.1973), and the inference exists both as to the offense of burglary and of stealing, State v. Vineyard, 497 S.W.2d 821, 830 (Mo.App.1973). Proof of actual manual possession by the defendant of recently stolen property is not necessary to raise the inference and the possession by the defendant need not be separate and apart from all others. State v. Vineyard, supra, 497 S.W.2d at 830 and cases cited therein.

Appellant complains that the victim, Mr. Bedrosian, did not sufficiently identify the sink and the coils as being owned by him so that there was an insufficient showing that his property was stolen from the warehouse thus negating any intent on the part of the appellant to steal. In cases of burglary and stealing, the general principle is that the state must identify the stolen property found in the possession of the accused by the most direct testimony of which the case is susceptible. See discussion in 50 Am.Jur.2d, Larceny, § 142, p. 321 (1970). But the law does not impose impossible standards. The identification of property which does not bear identifying marks is seldom capable of strict proof. Tatum v. United States, 88 A.2d 495 (Mun.Ct.App.Dist.Col.1952). The question of identification is normally one for the jury. 50 Am. Jur.2d, Larceny, § 158, p. 342 and § 171, p. 359 (1970); State v. Chase, 444 S.W.2d 398, 402 (Mo. banc 1969). The fact of identification of the property stolen may be proved by circumstantial evidence. State v. Chase, supra, 444 S.W.2d at 402.

Tested within all these legal principles, we hold that the trial court did not err in overruling the motion for judgment of acquittal. There was sufficient, substantial circumstantial evidence produced by the state to show (1) the identification of the sink and coils by the victim, Mr. Bedrosian, (2) that the property was stolen from his building, and (3) that there was an intent on the part of the accused to steal. Thus the elements of the offense of burglary were shown.

The evidence shows that Ms. Reeder heard an unusual noise — she heard some glass breaking — and saw a tire tool near the building; the glass on the front door was broken; she saw the license plate on the defendant’s truck parked near the warehouse; when she returned to the building the second time the appellant was sitting in the truck and the two companions were coming up the street carrying the sink and put it in the appellant’s truck. The coils were already in the back of the truck. “. . . [T]hey were walking down the sidewalk with it [the sink] and put it in the back of the truck.” Mr. Bedrosian saw the sink and coils in the truck. While he could not positively identify the sink and coils, his identification was sufficient to submit to the jury the question of ownership. That issue was for the jury. He testified, “I know the sink; I pulled it out of a lavatory.” While he could not testify as to any identifying marks on the property, he did testify that they were about the same and that he knew they were his coils because “they were missing out of my establishment.” He testified that a sink and coils were in his warehouse a few days before “about seven or eight feet from the front door.” The property was found in the defendant’s truck which was parked 10-15 feet away from the warehouse. The property was in his possession. The victim testified that the appellant offered money not to prosecute.

Under all these circumstances and under the legal principles stated, we cannot conclude that there was insufficient evidence to submit to the jury the issues of breaking and entering, identification of the property, and an intent to steal. The totality of the facts and circumstances are such so as to exclude every reasonable hypothesis of innocence.

In his brief appellant relies upon State v. Hampton, 275 S.W.2d 356 (Mo. banc 1955). In Hampton, money and six quarts of whiskey were taken from a tavern which was broken into. Part of the money ($30.00) was a five-dollar roll of dimes wrapped in green paper. Defendant’s fingerprints were on one of the bottles. When the defendant was arrested, a search of his person disclosed a five-dollar roll of dimes wrapped in the same kind of green paper as that on the dimes which had been taken from the tavern. The wrapper was like those normally used by banks to wrap dimes. The court concluded that the possession of a roll of dimes was a circumstance admissible in evidence, nevertheless this circumstance was not substantial evidence inconsistent with a reasonable hypothesis of defendant’s innocence, since “. . . there was no evidence sufficiently identifying the roll of dimes defendant had as that taken from the tavern . . . ” and found in the possession of the accused. However, the court affirmed the judgment of conviction because of the fingerprints.

State v. Hampton, supra, is clearly distinguishable from the facts and circumstances here. A roll of dimes in the possession of a defendant is not substantial evidence inconsistent with a reasonable hypothesis of innocence. But here the sink and coils were sufficiently similar in appearance to the ones in the warehouse and Mr. Bedrosian sufficiently identified the property so as to submit the issue to the jury. The totality of the circumstances is inconsistent with a reasonable hypothesis of defendant’s innocence. State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).

The other authorities relied upon by the appellant are not dispositive of the issues presented here.

We conclude, therefore, that the trial court did not err in denying the motion of acquittal because Mr. Bedrosian was “unable to identify” the property so that the element of intent to steal was lacking.

We have read the entire transcript, the briefs of the parties, the authorities relied upon therein and we find no prejudicial error, and hence affirm the judgment of conviction.

The judgment is affirmed.

All the Judges concur.

      . A neighbor who lived upstairs — Mrs. Kaiser —“yelled” at her to “look at the corner and see what was going on.” Ms. Reeder responded yes, she knew it.

      . He saw the sink and the two refrigerator coils “[o]n the back of a pick-up truck.”

      . [W]hat evidence constitutes an identification of the property found in the possession of the accused as that of the alleged owner is a matter for the jury in the ordinary case.”

      . State v. Thompson, 428 S.W.2d 742 (Mo.1968) — [no evidence that the defendant was at or near the burglarized premises at time of offense or at any other time; items were items of personal property (gloves, wallet) which were of different description — gloves had different lining];

        State v. Miller, 433 S.W.2d 281 (Mo.1968)—[receiving stolen property];

        State v. Delay, 455 S.W.2d 1 (Mo.1970)—[receiving stolen property].


author: HENRY, Justice.

text:
    Sallie Price COLE, Petitioner, v. David Lee WOODS et al., Respondents.
    Supreme Court of Tennessee.
    March 17, 1977.

      Lloyd S. Adams, Jr., Adams & Albright, Humboldt, for petitioner.
    Hewitt P. Tomlin, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for respondents.
   OPINION

HENRY, Justice.

We granted certiorari in this wrongful death action primarily in order to reexamine the rule of law requiring that in a suit against a third party tortfeasor, the negligence of a non-owner driver must be imputed to a non-negligent owner passenger. The Court of Appeals felt constrained to follow the rule announced in Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d 411 (1936) and followed in other cases, notably, Angel v. McClean, 173 Tenn. 191, 116 S.W.2d 1005 (1938) and Snyder v. Missouri Pacific Railroad Co., 183 Tenn. 471, 192 S.W.2d 1008 (1946).

I.

On Tuesday night, December 4, 1973, at approximately 10:00 o’clock, plaintiff’s decedent, an eighteen year old woman, was fatally injured on a rural road running in front of her residence, when her automobile, operated by her fiance, was struck by a vehicle operated by the defendant, David Woods. They were en route to a nearby service station to purchase gasoline for her automobile. As they left her residence she handed the keys to her fiance, thereby impliedly asking that he drive.

He backed out the driveway into Hopper Barker Road and had reached a point where his vehicle, generally speaking, was in his right-hand lane, when the automobile operated by the respondent, David Woods, “topped” a hill headed in their direction. While this is strongly disputed, it was insisted by petitioner that the oncoming vehicle was approaching at a high rate of speed, with headlights on high beam, and on the wrong side of the road. Upon observing the approach of the oncoming automobile, the driver of the decedent’s automobile attempted to drive back into the driveway and was hit by the oncoming car.

The trial jury awarded full and actual damages for the petitioner’s automobile, and for the cost of hospital, funeral and ambulance, but made no award for the pecuniary value of the life of the deceased.

II.

Numerous and sharp factual disputes were presented. It is neither necessary nor proper that we attempt to reconcile them.

The complaint charges the respondent, David Woods, and by imputation, the other respondents, with “willful and wanton disregard of the rights and safety of others”, and specifically charges gross negligence.

Without weighing the evidence, or evaluating its preponderance, we find that there was evidence from which the jury might have found, among other things, that the defendant, David Woods:

a. was driving on the wrong side of the road;
b. was driving substantially in excess of the legal speed limit;
c. had been drinking;
d. approached the point of impact with his lights on “bright”; and
e. had diverted his attention to adjusting his car radio and was not keeping a lookout ahead.

Further, it is admitted that he was fifteen years of age and was operating his vehicle in the nighttime, under a restricted license, unaccompanied by a licensed parent or guardian, in violation of Sec. 59-704, T.C.A.

These contentions, supported by the testimony (not necessarily by the preponderance or better weight), clearly made a jury issue of the question of gross negligence. Taken collectively they would show “[a] heedless and reckless disregard for another’s rights, with the consciousness that the act or omission to act may result in injury to another”, Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 130, 178 S.W.2d 756, 757 (1943); or negligent acts “done with utter unconcern for the safety of others” or “with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law”. Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn.App.1972). These are commonly accepted definitions of gross negligence in Tennessee.

This case was submitted to the jury on the basis of ordinary negligence. The trial judge made no reference to gross negligence.

It is the duty of the trial judge to instruct on every issue of fact or theory of the case raised by the pleadings and supported by the proof. Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953); Taylor v. State, 212 Tenn. 187, 369 S.W.2d 385 (1963). In view of the pleadings and proof in this case the trial judge should have covered the question of gross negligence in his main charge. When he failed to do so, counsel for the" plaintiff tendered the following special request:

If you find from the weight of the evidence that defendant David Woods drove and acted in willful and wanton disregard of the rights and safety of others, especially Jeanette Price, then he would be guilty of gross negligence.
If you do find from the weight of the evidence that defendant David Woods was guilty of gross negligence, then any ordinary negligence of Mitchell imputed to Jeanette Price would not bar a recovery, and it would be your duty to find for the plaintiff.

This is a correct statement of the law, when taken in conjunction with the main charge, and should have been given. It follows that the trial judge, had he given the requested charge, also should have instructed the jury that ordinary negligence would mitigate the damages awardable for defendant’s gross negligence. Hood v. Waldrum, 58 Tenn.App. 512, 434 S.W.2d 94 (1968).

The failure of the trial judge to submit this substantial and significant issue to the jury was prejudicial error and we must, therefore, reverse and remand.

This brings us to the principal issue in this lawsuit, which we must address for the guidance of the trial judge on remand.

III.

It was established as a rule of law in Tennessee, in Turnpike Co. v. Yates, 108 Tenn. 428, 67 S.W. 69 (1902) that when a person riding in the carriage of another sustains inj'ury as a result of the negligence of a third party, he may recover against the latter notwithstanding the negligence of the owner (driver) of the carriage where the passenger is “without fault and has no authority over the driver”. 108 Tenn. at 441, 67 S.W. at 72.

Thirteen years later this Court was confronted with a case of first impression, viz: Is the contributory negligence of the husband-driver imputable to the wife-passenger? In Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 178 S.W. 1117 (1915), the Court answered in the negative. It is interesting and significant that the Court pointed out a distinction which many decisions tend to ignore, i. e., that the passenger may be guilty of his own personal negligence. The Court said:

[I]f an adult, who while riding in a vehicle driven by another sees, or ought by due diligence to see, a danger not obvious to the driver, or who sees that the driver is incompetent or careless, or is not taking proper precautions, it is his duty to give some warning of danger, and a failure to do so is negligence. 132 Tenn. at 498, 178 S.W. at 1120.

But it is the direct and personal negligence of the passenger existing independent of, or in conjunction with, the negligence of the driver, and imputed negligence is not actually involved.

In Tennessee Central R.R. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225 (1920) the Court followed Turnpike Co. v. Yates, supra, and held that the question of the failure of the guest to exercise due care was one of fact to be determined by the jury.

The celebrated case of Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32 (1926) was decided in a most excellent opinion by then Chief Justice Grafton Green. First, Justice Green reiterated the Yates-Vangilder rule against the imputation of negligence to a passenger “without fault”, unless the driver is under the control or authority of the passenger.

Next Judge Green wrote that “[t]o justify the imputation of negligence, there must be agency on the one hand, authority on the other.” 152 Tenn. at 591, 280 S.W. at 33. While not specifically so stating, the Court quite obviously charged plaintiff with his own negligence in riding in an automobile with a drunken driver, as opposed to imputing the driver’s negligence to him.

A fair summary of the law prior to 1936 would be that the negligence of the driver was not imputable to a passenger without fault unless he had some authority or control over the driver; but that it was the duty of the passenger to exercise due care for his own safety by warning of danger of perils unseen by the driver, by cautioning against careless or incompetent conduct on his part, and by not voluntarily placing himself in a position of peril by riding with a drunk or incompetent driver. The negligence of the passenger was a question of fact to be determined by the jury. An agency relationship was necessary to impute negligence.

In 1936, this Court decided Ringwald v. Beene, 170 Tenn. 116, 92 S.W.2d 411 (1936), the first Tennessee case to deal with imputed negligence from the standpoint of an owner-passenger. The factual situation was that plaintiff, a schoolteacher, was being driven to Middle Tennessee State Normal for the purpose of attending a session designed to advance her educational qualifications. She was travelling in a car that belonged to her, and her husband was driving. In holding that the negligence of the husband-driver was imputable to the non-negligent wife-owner, the Court said:

We do not see that the husband, driving this car on this mission, occupied a position different from that of any other driver whose services the wife might have secured. It was her car, her trip, and her driver. She was in control of the situation, and we think any negligence of her driver must be imputed to her. (Emphasis supplied). 170 Tenn. at 122, 92 S.W.2d at 413.

In reaching this conclusion the Court alluded to Vangilder, supra, recognized the general rule that when a wife is riding in automobile operated by her husband, his negligence cannot be imputed to her, and cited four cases from other jurisdictions. The cited cases were all decided on the theory of the creation of a bailment, and hold that the husband’s negligence will not be imputed to the wife. Obviously, the Court rejected the bailment theory. Unfortunately, it cited no other authority, leaving the opinion in the predicament of not following the only cases cited and not specifying the precise reasons for reaching an opposite conclusion.

From the holding, as above quoted, we think it a fair conjecture that the Court considered primarily the use to which the automobile was being put, its ownership and control. It would, therefore, appear that this decision is rooted in the relationship of principal and agent.

Two years later this Court decided Angel v. McClean, 173 Tenn. 191, 116 S.W.2d 1005 (1938). The facts were analogous to those in Ringwald, supra. The purpose of the trip was to take the husband-driver to work and the wife-owner-passenger to the doctor. The Court followed Ringwald, noting that the only difference between the two cases was that in Ringwald the trip was “for the exclusive benefit of the wife; while in the case on trial the car was being used for the common or joint use of the husband and wife.” 173 Tenn. at 193.

The Court noted with approval the “authority to control” criterion of Yates, supra, and held that “liability seems to hinge upon the right to control", (Emphasis supplied), 173 Tenn. at 193, 116 S.W.2d at 1006. Further, the Court referred to “the underlying principle of control”, 173 Tenn. at 196, 116 S.W.2d 1005, and specifically rejected the bailor-bailee relationship. The clear import of Angel is that the determining factor is the right to control vis-a-vis actual control. Again this brings us back to agency, or, more properly speaking, to the concept of a master-servant relationship.

The third significant case in this trilogy is Snyder et a1. v. Missouri Pacific R.R. et al., 183 Tenn. 471, 192 S.W.2d 1008 (1946). Snyder involved an auto-train collision in which the driver of the car was an employee of the owner-passenger. There was evidence that both men had been drinking prior to the accident. The Snyder Court, citing Angel and Ringwald, again relied upon the “right to control” rationale, reasoning that:

[W]hen the owner is in his own car he has the right to control its operation unless there has been some bailment of the car to the driver. The reason that the negligence of a driver cannot be imputed to his guest, a passenger in the car, is that the latter has no control of the car or of its operation. (Emphasis supplied). 183 Tenn. at 481, 192 S.W.2d at 102.

Clearly, the Snyder Court construed “control” to mean constructive control based solely upon the mere ownership of the vehicle, and not upon any actual physical ability to control the vehicle.

In concluding that the driver-employee’s contributory negligence would be imputed to the owner-passenger, the Snyder Court made the following observation:

[I]t would scarcely be denied that Roth, the owner of this car, would have been liable for an injury inflicted on another by Huffman’s negligent operation of the vehicle at the time of this accident. 183 Tenn. at 482, 192 S.W.2d at 1012.

At least by implication the Court appears to have applied what is sometimes referred to as the “both ways” rule. Simply stated, under the “both ways” rationale, if the principal would be responsible for the acts of his agent when defending a tort action, he should also be charged with such conduct when it amounts to contributory negligence.

It is difficult to determine whether the Snyder decision was based upon an owner-driver agency relationship or solely upon the “right to control” fiction. Nevertheless, the language quoted supra, which implies an application of the “both ways” rule, is troublesome.

The Ringwald, Angel, Snyder trilogy, despite some uncertainty as to the precise rationale upon which these cases are based, has become standard authority in Tennessee for the imputation of contributory negligence, in suits prosecuted by owner-passengers. Indeed, more recent Tennessee Supreme Court decisions have relied, unquestioningly, upon “the well-settled” rule established by these three early cases. See, e. g., Southern Ry. Co. v. Butts, 214 Tenn. 328, 379 S.W.2d 794 (1964).

Also applying the “imputed contributory negligence” rule are several decisions by the Court of Appeals. For example, Hawthorne v. Lankes, 58 Tenn.App. 397, 430 S.W.2d 803 (1968), involved an automobile owned by a serviceman, who, before leaving the country, executed a power of attorney with regard to his automobile in favor of his wife. The wife, a passenger in her husband’s car, which was being driven by her brother, was injured in an accident. The Court of Appeals for the Middle Section, through Judge Todd, discussed at length the “both ways” rule and concluded that any contributory negligence of the driver was imputed both to the passenger-wife and to the absentee owner of the vehicle. Although it was not specifically discussed, the passenger-wife’s “ownership” of the vehicle was implied from the fact that she was in custody and control of her husband’s vehicle.

In Ferrill v. Southern Ry. Co., 493 S.W.2d 90 (Tenn.App.1972), the Court of Appeals declined to impute the driver-son’s contributory negligence to the passenger-mother of a car owned solely by the father. Discussing Hawthorne and Butts, supra, the Court declared:

in each of the cases the person riding in the car was not only a passenger but one who had control of the vehicle. (Emphasis supplied). 493 S.W.2d at 93.

Apparently the Court of Appeals believed the “right to control” the vehicle depended solely upon the mere fact of the vehicle’s ownership, and from this naked right to control it followed that the driver’s negligence was imputable to the owner-passenger. We are inclined to view this as a correct conclusion based upon the authorities hereinabove cited.

Thus there has developed a rigid rule in Tennessee decisional law that operates to impute negligence to an owner-passenger based solely upon the fact of ownership, and the corresponding right to control, and without regard to considerations of time, opportunity and reason to exercise control.

This rule is at variance with the general rule of imputed negligence in cases involving non-owner “guest passengers.” There the negligence of the driver is not imputed to the passenger, but the rule is subject to the qualification that the passenger has certain duties and responsibilities. See, e. g., Morgan v. Tennessee Central R.R., 31 Tenn.App. 409, 216 S.W.2d 32 (1949) (duty to exercise ordinary care); Louisville & Nashville Ry. Co. v. Tucker, 211 F.2d 325 (6 Cir. 1954) (duty to remonstrate and warn of danger); Webster v. Trice, 23 Tenn.App. 365, 133 S.W.2d 621 (1939) (duty to protest excessive speed); all qualified by the rule that there must be time for an effectual warning of protest, Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780 (1949), and that a guest has the right to assume that the driver will exercise proper care and caution until the contrary appears, Chickasaw Wood Products v. Lane, 22 Tenn.App. 596, 125 S.W.2d 164 (1938).

Reason, logic and common sense dictate that the rules of imputed contributory negligence be applied uniformly in all suits brought by passengers against third-party defendants.

We feel that we must either harmonize the rules or retreat from the doctrine of imputed contributory negligence. We note, in passing, that a departure from the rule, as a practical proposition, would have little effect upon the conventional imputed negligence situation. This follows from the fact that most of the situations commonly confronting the Court involve conduct that would constitute direct, personal and proximate negligence on the part of the passenger, and are not imputed negligence cases.

IV.

The courts of our sister states have grappled with this problem with varying results.

In Slutter v. Homer, 244 Md. 131, 223 A.2d 141 (1966), the court made this apt comment:

The doctrine of imputed negligence rests on the presumption that the non-driving owner had the right to control the vehicle. That presumption ... is re-buttable; the presumption is based, not on the actual exercise of control, but on the right to exercise it. The agency doctrine, on the other hand, rests on the relationship of the parties and the nature of the expedition during which the accident occurred. Imputed negligence, like agency, is based on the relationship, but turns on the facts in respect to the right to control, whereas the agency theory applies where it is pertinent, irrespective of the momentary right of physical control. In short, the agency doctrine is predicated on a status rather than an inference of fact. 244 Md. at 139, 223 A.2d at 145.

In Greyhound Lines, Inc. v. Caster, 216 A.2d 689 (Del.Super.1966) it is recognized that

the driver’s contributory negligence will be imputed to, and will be a bar to an action by, an owner passenger, unless the owner can establish that he had actually surrendered his right of control to the operator, even though the owner was not in fact exercising that right at the time of the accident. 216 A.2d at 691.

The court refused to permit imputation where the driver was asleep.

Gervais v. Kostin, 48 Wis.2d 190, 179 N.W.2d 828 (1970) holds that where an owner is riding as a passenger, there arises a rebuttable presumption that the driver of such vehicle is acting as an agent for the owner-passenger.

In Kremlacek v. Sedlacek, 190 Neb. 460, 209 N.W.2d 149 (1973), the Court addressed the problem thusly:

Where the owner is a passenger in his own automobile while it is being operated by another, the negligence of the operator is imputable to the owner where the owner assumes to direct or has the power to direct the operation of the automobile and to exercise control over it. This is ordinarily a question for the jury, unless the evidence is so conclusive that the minds of men could not reasonably arrive at any other conclusion. (Emphasis supplied). 190 Neb. at 464, 209 N.W.2d at 153.

Fox v. Lavender, 89 Utah 115, 56 P.2d 1049 (1936), cited by respondents, stands for the proposition that “where an owner is an occupant of his own car there arises a re-buttable presumption that he has control and direction of it.” 89 Utah at 132, 56 P.2d at 1057.

It should be noted that under pertinent Tennessee decisional law, there is no room for a rebuttable presumption. Reading the cases carefully, they would justify a charge to the jury that the presumption is conclusive when ownership is shown.

Respondents also cite us to Phillips v. Foster, 252 Iowa 1075, 109 N.W.2d 604 (1961). That case stands for the proposition that “the true test in determining whether or not contributory negligence is imputed to an owner is the right to control and whether or not control has been surrendered.” (Emphasis supplied), 252 Iowa at 1080, 109 N.W.2d at 607.

Broadly speaking, this is the current Tennessee law; however, Phillips goes one step farther and recognizes that mere proof of ownership “does not establish as a matter of law right of control in the owner.” 252 Iowa at 1081, 109 N.W.2d at 607. Finally, the Phillips Court said:

[W]here the owner is present in the car his right of control is presumed, and the burden is upon him to show that it has been surrendered or, because of the factual situation, could not be exercised. 252 Iowa at 1083, 109 N.W.2d at 608.

Again, we come back to a rebuttable presumption as opposed to a “strong” or “conclusive” presumption, arising as a matter of law, and without consideration of the factual situation.

In Menzigian v. La Riviere, 334 Mass. 610, 137 N.E.2d 925 (1956) the Court recognizes that control is an attribute of ownership but “the right of control arising from ownership is prima facie only and may be contradicted or explained.” 334 Mass. at 612, 137 N.E.2d at 927.

The rebuttable presumption rule obtains in North Dakota. Pearson v. Erb, 82 N.W.2d 818 (N.D.1957). The negligence of the driver is not imputable to an owner-passenger as a matter of law, but depends on the circumstances of the case to include whether the owner had a reasonable opportunity to exercise the right of control. See also, Jasper v. Freitag, 145 N.W.2d 879 (N.D.1966).

The Supreme Court of Oregon in Johnson v. Los Angeles Motor Express, Inc., 222 Or. 377, 352 P.2d 1091 (1960), rejected the notion that recovery should be denied because of imputed contributory negligence based on mere ownership alone.

Judge Hall (now Justice Hall of the Georgia Supreme Court), writing for the Court of Appeals, in Blount v. Sutton, 114 Ga.App. 767, 152 S.E.2d 777 (1966), summarized the issues and conclusions thusly:

Mere ownership of an automobile does not render the owner liable for a collision occurring when it is driven by another person (citation omitted) nor is the fact that the operation of an automobile is with the consent and permission of the owner sufficient to establish that the driver is the agent or servant of the owner (citation omitted).
. where an owner is present in an automobile being driven by another an inference may properly be drawn by the jury that the owner was in control of the operation of the automobile, (citation omitted). However, this inference only applies “where nothing else appears.” (citation omitted) In other words “[tjhere is a presumption, in the absence of any evidence to the contrary, that an owner present in his car has power to control it.” 114 Ga.App. at 769, 152 S.E.2d at 778.

In Boyd v. McKeever, 384 Mich. 501, 185 N.W.2d 344 (1971) the Michigan Supreme Court held that the owner’s right to control the driver may not be presumed, but is to be established upon the facts of the case.

In Summers v. Summers, 40 Ill.2d 338, 239 N.E.2d 795 (1968), the Illinois Supreme Court addressed the issue thusly:

In substance, this defense rests on the theory that the negligence of a defendant-driver is imputable to an owner-passenger when the latter does not relinquish control of the vehicle to the former. This theory is not well taken because the negligence of a driver is not imputed to an owner-passenger in the absence of the relationship of respondeat superior or the existence of a joint enterprise, (citations omitted). An owner-passenger is chargeable for his own negligence on failing to perform his duty to control a driver, but the negligence of the driver is not imputable to him. * * * 40 Ill.2d at 343, 239 N.E.2d at 799.

In Clauss v. Fields, 29 Ohio App.2d 93, 278 N.E.2d 677 (1971) the Court held that there is a rebuttable presumption that an owner-passenger has control, and, “in the absence of any evidence to rebut such a presumption, the negligence of the driver in operating the motor vehicle is imputable to the owner riding therein.” 29 Ohio App.2d at 96, 278 N.E.2d at 679.

In another owner-passenger case, Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), the Court said:

It is unrealistic to hold, in the present day uses of motor vehicles when heavy traffic is the rule and not the exception, that the occupant of a motor vehicle has factually any control or right of control over the driving of the operator. Therefore, in the absence of a relationship of principal and agent or other legal relationship for which responsibility is imposed on one of the parties for the fault of the other or of independent contributory negligence of the passenger, or a showing that the parties were engaged in a joint adventure, no cogent reason exists for denying to the injured passenger recovery against a third person who has been guilty of negligence having causal connection with the accident. 245 La. at 253, 158 So.2d at 154.

The foregoing is a fair sampling of the cases disclosed by our research or cited to us by counsel. We find no case — and none is cited to us — where the mere fact of ownership, standing alone, is held to be sufficient to warrant a conclusion, or sustain a presumption, as a matter of law, that the owner-driver was in control of the vehicle.

We have reserved for special consideration and analysis the three most significant decisions cited by counsel or disclosed by our research.

The petitioner relies upon Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 144 N.W.2d 540 (1966). There the Court, in a conspicuously well reasoned opinion by its Chief Justice, denounced the doctrine of imputed contributory negligence and abandoned the rule that the negligence of a servant was imputable to a master in the latter’s suit against a negligent third party.

The philosophy of the opinion in Weber is expressed in the single sentence:

If negligence is based on fault, it is difficult to rationalize imputed negligence where the party seeking recovery is without fault. 274 Minn. at 486, 144 N.W.2d at 542.

Further the Court observed:

There may be some justification for the rule of vicarious liability even though the master is without fault; but from vicarious liability has come the companion rule imputing to the master the negligence of the servant when the master seeks to recover for his own damages and injury, even though the master was not at fault. There is no necessity for creating a solvent defendant in that situation, nor can any of the reasons given for holding a master vicariously liable in a suit by third persons be defended on any rational ground when applied to imputing negligence of a servant to a faultless master who seeks recovery from a third person for his own injury or damage. Why should the negligent third person escape liability under these circumstances? Here the logic, if there is any, for imputing negligence to a faultless plaintiff in a suit by him against a third party is completely lacking. 274 Minn. at 486, 144 N.W.2d at 542.

A most significant case not cited by either party is Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970), wherein the Pennsylvania Supreme Court held that only a master-servant relationship or a joint enterprise between the driver of an automobile and the owner-passenger would justify imputation of contributory negligence. We commend this case for its excellent analysis of the various relationships that may exist between an owner-passenger and a driver of an automobile, i. e., bailor-bailee, principal-agent and master-servant.

By way of preface to a discussion of these relationships the Court notes that:

a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person. 440 Pa. 412, 269 A.2d at 480.

As Justice Sam Roberts points out in his concurring opinion, the Court by this language adopted a limited “both-ways” test. 440 Pa. at 421, 269 A.2d at 484.

The Court pointed out that as a general rule a bailor is not liable for the negligence of the bailee in the operation of the bailed chattel and that a principal is not liable for harm caused by the negligent act of his agent, over whom he has no control, (citing Prosser, The Law of Torts, § 70 (3rd ed. 1964)), but that a master has the right to exercise control and, therefore, is vicariously liable for the acts of his servant. From this the Court reasons that a master is barred from recovery against a negligent defendant by the contributory negligence of his servant acting within the course and scope of his employment. We quote the ensuing portion of the Court’s opinion:

Perhaps many of the harsh results sometimes associated with the imputation of contributory negligence can be attributed to our mistaken assumption that a principal is vicariously liable for the negligent acts of his agent We therefore now state unequivocally that only a master-servant relationship or a finding of a joint enterprise will justify an imputation of contributory negligence.
We have serious doubt that, in the ordinary situation, the mutual understanding of the owner-passenger and the driver is that the owner-passenger reserves a right to control over the physical details of driving or that the driver consents to submit himself to the control of a ‘backseat driver.’ It seems more reasonable that the mutual understanding is that the driver will use care and skill to accomplish a result, retaining control over the manner of operation yet subject to the duty of obedience to the wishes of the owner-passenger as to such things as destination. Such would only constitute an agency relationship and not one of master-servant, although there are undoubtedly situations where the understanding might well be such as to constitute a master-servant relationship. All that we now hold is that the character of the relationship created by the parties must be determined from their express agreement or from the circumstances, which may be disclosed at trial. The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver’s negligence. (citations omitted). Nor will it any longer create a presumption of a master-servant relationship. (Emphasis supplied). 440 Pa. at 416, 269 A.2d at 481-82.

Justice Roberts, in his concurring opinion chides his colleagues for “falling] short of accomplishing the degree of reform necessary in this area [by] continuing to apply the doctrine to the master-servant relationship”. 269 A.2d at 484 and “look[s] forward to the day when this Court completes its reform in this area.” 440 Pa. at 424, 269 A.2d at 486.

Lastly, the New York Court of Appeals in Kalechman v. Drew Auto Rental, Inc., 38 N.Y.2d 397, 353 N.Y.S.2d 414, 308 N.E.2d 886 (1973), became the first court “to une-quivocably abolish the doctrine of imputed contributory negligence in automobile negligence cases.”

We quote from the opinion:

One of the most frequently made and obvious criticisms of the doctrine of imputed contributory negligence is that it rests on a legal fiction which has no basis in reality. (See, e. g., Kleinman v. Frank, supra [34 A.D.2d 121, 309 N.Y.S.2d 651] [Hopkins, J., dissenting]; Kalechman v. Drew Auto Rental, 38 A.D.2d 974, 331 N.Y.S.2d 711 [Shapiro, J., concurring]; Lessler, Proposed Discard of the Doctrine of Imputed Contributory Negligence, 20 Fordham L.Rev. 156; Imputed Negligence in Automobile Accident cases, 16 St. John’s L.Rev. 222.
However in fairness to the rule it should be noted that at the time of its inception is apparently represented a realistic appraisal of the relationship between passenger and driver. One commentator has offered the following explanation of the genesis of the rule: “If the owner of a wagon and team handed the reins over to a passenger and let him drive, control of the horses was within easy reach. If he didn’t think the driver reined up fast enough at a railroad crossing, he could reach out and resume control. ⅜ * *
Actual control was a possibility, not a fiction.” (Op.cit., 16 St. John’s L.Rev. 222.) But with the advent of the modern automobile there is no longer any basis for assuming that the passenger, no matter what his relationship to the driver may be, has the capacity to assert control over or direct the operation of a moving automobile. The design of the vehicle, the high speeds at which it travels, the split second timing which is often necessary to avoid collision have all combined to erode the assumption that anyone other than the driver can effectively control the operation of the vehicle in traffic. In fact, under modern driving conditions anyone who “allows another to drive would only increase the risk of accidents by interfering with the driver’s control of the car or by diverting his attention” (op.cit., 16 St. John’s L.Rev. 222). Although it might have been practical in the past, the modern highway is clearly the wrong place to assert the right to control. “Certainly assertion of such rights in the course of operation is not timely, nor in the interest of public safety.” (Jenks v. Veeder, 177 Misc. 240, 242, 30 N.Y.S.2d 278, 281 [Bergan, J.], modified as to amount of verdict. 264 App.Div. 979, 37 N.Y.S.2d 230, aff'd., 290 N.Y. 810, 50 N.E.2d 231, supra.)
Thus the concept now rests on a pure legal fiction, which insofar as it assumes or encourages interference with the driver’s function, conflicts with public policy. All this serves to illustrate the wisdom of Cardozo’s celebrated observation that “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel to-day.” (MacPherson v. Buick Motor Co., 217 N.Y. 382, 391, 111 N.E. 1050, 1053.) 33 N.Y.2d at 403, 353 N.Y.S.2d at 418, 308 N.E.2d at 889.

Finally the Court concludes:

We have therefore concluded . that the general rule should be applied without exception by allowing the plaintiff passenger to recover for negligent operation of the vehicle — no matter what his relationship to the driver may be — unless it is shown that his own personal negligence contributed to the injury. 33 N.Y.2d at 405, 353 N.Y.S.2d at 420, 308 N.E.2d at 891.

V.

We have considered and analyzed this matter in the light of the indisputable fact that the laws of every land from time eternal have contained a system of tort law, in one form or another, that recognized the right of the innocent victims of wrongful conduct to recompense at the hands of the wrongdoer. The doctrine of imputed contributory negligence, founded in fallacy and existing without justification, is an impediment to that right and a stumbling block in the path of justice.

The question of a passenger’s right to recover should depend solely upon the presence or absence of his own personal contributory negligence.

We do not believe that, absent a showing of a master-servant relationship or of a joint enterprise, the status of the passenger or his relationship with the driver of an automobile is of any consequence, except to the limited extent that it may be a circumstance to consider in determining the personal contributory negligence of the passenger. We hold that henceforth, in automobile cases, only a master-servant relationship or a finding of joint enterprise will justify an imputation of contributory negligence. In all other automobile cases, the doctrine of imputed contributory negligence has no current validity. All cases contra are overruled.

We reiterate our view that, in a substantial number of imputed negligence cases appearing in our reported decisions, our courts have characterized as imputed contributory negligence that which actually constituted direct, proximate and personal negligence on the part of the passenger.

This ruling does not leave the third party tortfeasor standing naked and defenseless. The passenger must exercise reasonable care for his own safety. For instance, he must warn the driver of dangers unknown to the driver, must protest excessive speed, must not ride with a drunken driver or one who is reckless or incompetent, and must not entrust his automobile to a driver who is, or becomes, incompetent for any reason. In short, the duties now imposed upon “guest passengers” under the decisional law of the state continue in full force and effect. It is entirely possible that the jury might find such direct, personal and proximate contributory negligence in this case.

The doctrine of imputed contributory negligence, however, henceforth will not be charged in any suit or action in which recovery is sought by an automobile passenger, and in which there has not been a finding of a master-servant relationship or of a joint enterprise.

We are not unmindful of Sec. 59-1037, T.C.A. providing that proof of ownership is “prima facie evidence that said vehicle . . . was being operated and used with authority, consent and knowledge of the owner . . . and that said vehicle was then and there being operated by the owner, or by the owner’s servant, for the owner’s use and benefit and within the scope and course of his employment.” Nor are we unmindful of Sec. 59-1037, T.C.A. relating to proof of registration.

These statutes are unaffected. This ruling does not trench upon them nor do they operate to dilute the ruling. The rules of respondeat superior are unaffected. In an action by a third party brought against a master, his vicarious liability is unaffected, and the negligence of his servant is chargeable to him and he is answerable therefor. We confine this ruling to automobile negligence cases. It is possible that other situations may arise where the same result would follow; however, we leave those decisions for the future.

We limit the retrospective application of this decision to this case and to those others wherein the issue of imputed contributory negligence was raised in the trial court by appropriate pleadings and proof, now pending motions for new trial or in the pipeline of appellate review.

In fairness to the trial judge and to the Court of Appeals, it should be stated that in this regard they were prompted by existing decisional law of the state and it would be unfair to charge them with error. We reverse because of the erroneous charge, or the failure to charge gross negligence. In view of the disposition we make of this case we do not consider it necessary or appropriate to comment on the remaining assignments of error.

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

      . Three of the five assignments are rooted in this question.

      . Now Middle Tennessee State University.

      . For discussion of the “both ways” rule and the imperfections of the rule of imputed contributory negligence, see Henniss, Imputed Contributory Negligence, 26 Tenn.L.Rev. 531 (1959); Lessler, The Proposed Discard of the Doctrine of Imputed Contributory Negligence, 20 Fordham L.Rev. 156 (1951); Prosser, Torts, Sec. 74, (4th ed. 1971); F. Harper & F. James, Torts, Sec. 23 (1956).

      . In the instant case the trial judge charged that there was a “strong presumption” of owner control. This was a correct charge under current law.

      . The Minnesota Court, in Pierson v. Edstrom, 286 Minn. 164, 174 N.W.2d 712 (1970) abolished the doctrine in joint enterprise situations.

      . Comment, 6 St. Mary’s L.J. 526 at 532 (1974).

      . It should be noted that the mere presence of the owner in an automobile driven by another does not create the presumption of a master-servant relationship, or of a joint enterprise. In the typical situation, the relationship involved is one of agency.