author: SIMEONE, Chief Judge.

text:
    Sol F. CANTOR, Plaintiff-Appellant, v. UNION MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent.
    No. 37658.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 8, 1977.

      Cupples, Cooper & Haller, Inc., Irving L. Cooper, Bernard W. Gerdelman, Clayton, for plaintiff-appellant.
    Armstrong, Teasdale, Kramer & Vaughan, Kenneth F. Teasdale, Richard B. Scherrer, St. Louis, for defendant-respondent.
   SIMEONE, Chief Judge.

This is an appeal by plaintiff-appellant, Dr. Sol F. Cantor, from a judgment of the circuit court of St. Louis County entered on November 25, 1975, sustaining a motion for judgment on the pleadings filed by the defendant-respondent, Union Mutual Life Insurance Company (Union) which in effect disposed of plaintiff’s claim for disability insurance, damages for vexatious delay and attorneys’ fees. For reasons hereinafter stated, we reverse the order sustaining the motion for judgment on the pleadings and remand the cause for further proceedings.

This proceeding began on October 11, 1974, when the plaintiff, Dr. Sol F. Cantor, filed his petition against Union alleging, inter alia, that (1) on November 8, 1969, Union, for a premium, issued its disability insurance policy insuring him against disability caused by “sickness,” (2) on or about December 17, 1973, he became totally disabled as a result of a “septic left ankle joint due to beta-hemolytic strep” and that the total disability continued until about April 12, 1974, (3) conditions precedent had been complied with, and (4) the sum of $6,000.00 was due under the policy. Plaintiff prayed for judgment for the sum due, for damages for vexatious delay and for attorneys’ fees.

In due time, Union filed its answer containing an affirmative defense which alleged that the plaintiff, Dr. Cantor, had, on September 14, 1973, some three months pri- or to the alleged disability, instructed Union to cancel the disability policy, and, in accordance with his “written directions," Union cancelled the policy and so advised him by letter on September 27, 1973. Union further alleged that sometime thereafter it advised plaintiff as to what steps would be required to reinstate the policy, which steps included a payment of a premium for September 1973 to January 1974 to be remitted by December 18, 1973, “otherwise a reinstatement application would have to be completed.” Dr. Cantor sent the premium and on January 4, 1974, he was notified by Union’s agent that the policy had been reinstated as of that date. The answer further alleged that although plaintiff’s illness had begun on December 17 it occurred at a time when the policy was not in force and that under the terms of the reinstatement provisions of the policy the reinstatement was applicable only to those losses due to sickness as “may begin more than ten days after such date [January 4, 1974].” Union therefore urged that there was no coverage for the “illness” set forth in the petition.

On February 3, 1975, Union filed an amended answer which urged as an additional defense that Dr. Cantor “has no right, title or interest in said expired policy or to any of the benefits thereof” because, on June 3, 1971, he “assigned all his right, title and interest in said policy” and all “benefits which may have become payable thereunder” to “Hallet-Ginsburg Realty Company of Ohio.”

On the same date on which the amended answer was filed, Union filed its motion for judgment on the pleadings. Thereafter; on February 19, 1975, Union filed its “Request For Admissions” under Rule 59.01. Union requested that Dr. Cantor admit that the assignment has not been cancelled by the assignee, Hallet-Ginsburg. Plaintiff answered on March 18, 1975, and one answer to the request was equivocal. On September 22, 1975, the motion for judgment on the pleadings was argued.

On November 3,1975, Dr. Cantor filed his affidavit in opposition to Union’s motion for judgment on the pleadings. In that affidavit he stated that (1) he did execute the assignment on June 3, 1971, “for a debt then due and owing to Hallet-Ginsburg Realty Company . . (2) the amount of his claim against Union exceeded the debt owed to Hallet-Ginsburg; and (3) originally in its answer and in earlier correspondence Union denied coverage on the sole ground that the policy had been cancelled but alleged an additional ground — the assignment — as a defense in its amended answer.

On the same date, November 3, 1975, Dr. Cantor also moved to strike the defense of the assignment contained in Union’s amended answer. A few days later, Union moved for various reasons to strike Dr. Cantor’s affidavit.

It was in this posture that the trial court ruled on Union’s motion for judgment on the pleadings. The trial court, in a brief order, sustained the motion and entered judgment in favor of the defendant, Union Mutual. It is from this order of November 25, 1975, the appeal is taken by Dr. Cantor.

On this appeal Dr. Cantor urges several points for reversal. First, he contends the court erred in sustaining the motion for judgment on the pleadings because fact issues were raised. Second, he urges that if the trial court treated the motion as one for summary judgment, the court erred in sustaining it because genuine issues of fact existed. Third, he contends the court erred because he is still “the” real party in interest to maintain an action on the policy although he had executed an assignment to Hallet-Ginsburg. Fourth, he contends the court erred in sustaining the motion for judgment and in denying his motion to strike the defense of assignment because the defendant is estopped from raising this additional defense since Union originally denied coverage on the sole ground that the policy was cancelled.

The respondent, Union Mutual Life Insurance Company, on the other hand, urges that the motion for judgment was in reality one for summary judgment and contends the trial court did not err because (1) there were no genuine issues of fact to be tried, (2) Dr. Cantor was not the real party in interest since he had assigned his rights under the policy and that it did not waive its rights to assert this defense by first relying on the defense that the policy was not in force, and (3) Dr. Cantor failed to join an “indispensable” party under Rule 52.04 — the assignee, Hallet-Ginsburg.

We need not enter into an extended discussion as to each contention raised by the appellant, for we are convinced that, under the pleadings, fact issues were actually raised which necessitate a hearing to determine these factual issues.

The trial court, faced with the petition, answer, amended answer, motions, requests for admission and answers thereto, without time for deliberation and reflection, could well have concluded that there was no merit to the plaintiff’s claims under the policy. But, after due deliberation, research and study, perhaps not available to the trial court, we are convinced that the cause must be reversed and remanded for a hearing and trial.

Rule 55.27(b) provides that:

“After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.”

We do not believe that the trial court in this instance treated the motion for judgment on the pleadings as one for summary judgment, and, since the motion was one for judgment on the pleadings and fact issues were raised, the court erred in sustaining the motion.

In Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629 (Mo.App.1975), we held that, while a trial court is authorized to treat a motion to dismiss as a motion for summary judgment, some indication by the court to the parties that it is treating the motion as one for summary judgment is necessary. It is important that the court give the parties notice of the changed status of the motion before it should be treated as one for summary judgment. There was no indication from the record before us that Union’s motion for judgment on the pleadings was changed from a motion for judgment on the pleadings to one for summary judgment. Furthermore, there was no indication that the trial court considered matters outside the pleadings and there is nothing to indicate that matters presented to the trial court were not excluded. Under these circumstances, we believe that the motion filed by Union for a judgment on the pleadings was treated as such by the trial court and that it had no other status. Laclede Gas Company v. Hampton Speedway Company, supra, 520 S.W.2d at 629.

There are certain well-established principles relating to a motion for judgment on the pleadings. A motion for judgment on the pleadings is not favored. Helmkamp v. American Family Mutual Insurance Co., 407 S.W.2d 559, 565 (Mo.App.1966). Such a motion raises an issue of law only and not an issue of fact. The question is whether the moving party was entitled to judgment as a matter of law on the face of the pleadings. Where an issue of fact is presented by the pleadings a motion for judgment should be denied. Keener v. Black River Electric Co-operative, 443 S.W.2d 216, 218 (Mo.App.1969); Ingle v. City of Fulton, 268 S.W.2d 600, 603 (Mo.App.1954). The motion admits facts well pleaded. The position of a party moving for judgment on the pleadings is similar to that of a movant on a motion to dismiss, i.e., assuming the facts pleaded by the opposite party to be true, these facts are nevertheless insufficient as a matter of law. Keener v. Black River Electric Co-operative, supra, 443 S.W.2d at 218. The allegations of the petition are to be considered as true for purposes of the motion. Century Electric Co. v. Terminal R. Ass’n of St. Louis, 426 S.W.2d 58, 60 (Mo.1968). Here the petition alleged certain facts relating to the disability policy including that the policy was in full force and effect. When the defendant, Union, in its answer alleged it was not, an issue of fact was raised although no reply was forthcoming by the plaintiff. Rule 55.01. Since the answer did not contain a counterclaim denominated as such, no reply was necessary and the averments in the answer were taken as denied. Rule 55.09.

The pleadings here were not insufficient as a matter of law. Fact issues were raised. This was not an issue concerning the interpretation of words in the policy. Cf. Whited v. Nat. Western Life Ins. Co., 526 S.W.2d 364 (Mo.App.1975). Hence, we hold that (1) the motion was a motion for judgment on the pleadings, (2) it was treated by the trial court as such and was not treated as one for summary judgment, (3) the pleadings raised issues of fact, and hence (4) the trial court was in error in sustaining the motion and entering judgment on the merits in favor of the defendant, Union.

Union’s amended answer raised the issue that Dr. Cantor was not the real party in interest because he had made an assignment. Union apparently based its motion for judgment on the pleadings on the grounds, inter alia, that Dr. Cantor was not the real party in interest.

We are convinced that, although an assignment was executed by Dr. Cantor, he still had a sufficient interest under Rule 52.01 to maintain the action as a real party in interest.

Rule 52.01 requires that every civil action shall be prosecuted in the name of the real party in interest. The purpose of this rule is to enable those who are directly interested in the subject matter and entitled to reap its fruits be the ones to maintain the action. Kaufman v. Henry, 520 S.W.2d 152, 154 (Mo.App.1975). It has usually been held that where a claimant has assigned the entire claim or cause of action, he no longer has an interest in the claim and is no longer the real party in interest to maintain the action. State ex rel. Home Service Oil Company v. Hess, 485 S.W.2d 616, 618 (Mo.App. banc 1972). The courts have been mainly concerned with related concepts of splitting a cause of action and multiplicity of actions. Judicial concern regarding the real party in interest issue is based upon a policy against splitting a cause of action leading to multiplicity of litigation. LoBello v. Laclede Gas Co., 517 5.W.2d 474, 477 (Mo.App.1974).

In Missouri there is a difference between the assignment of a claim and subrogation to a claim. When there is an assignment of an entire claim there is a complete divestment of all rights from the assignor and a vesting of those same rights in the assignee; but, in a case of subrogation, only an equitable right passes to the subrogee and the legal right to the claim is not removed from the subrogor. Holt v. Myers, 494 S.W.2d 430, 437 (Mo.App.1973).

We deal here with an assignment of “all my right, title and interest in said Policy and in and to any and all benefits which may hereafter become payable thereunder in the event of any and all disabilities hereafter incurred by me while insured under the Policy.”

But, in reality, as the assignment itself states, we deal with a conditional assignment or one for “collateral security for any and all of my present or future indebtedness to the Assignee.” While numerous decisions in this state have dealt with the question of real party in interest when the issue involves an assignment or subrogation, the effect of an assignment for collateral security has not been definitively settled in this state. It has not been settled as to whether, under an assignment for collateral security, the real party in interest is the assignee or the assignor or whether each — assignor and assignee — may maintain an action, the other being a necessary party to the action brought by one.

The issue as to who is a proper party to maintain an action when there has been an assignment for collateral security is not new. In other jurisdictions it has been held that, where an assignment is given as collateral security only, the assignor retains such an enforceable substantive right so as to maintain an action, even though the assignment appears to be absolute in form. This does not mean, however, that the as-signee does not have a sufficient interest to maintain suit, for the assignee, too, has an enforceable substantive right. The assign- or and the assignee are both interested parties. When the assignor maintains suit the assignee is a “necessary” party.

Under these authorities we are convinced that Dr. Cantor, although he made an assignment for collateral security of a debt he may have owed or would owe to Hallet-Ginsburg, retained sufficient interest so as to maintain an action against Union Mutual on the disability policy.

We hold therefore that the defense raised in the defendant’s first amended answer that plaintiff has no right to maintain suit because he had made an assignment to Hal-let-Ginsburg does not preclude Dr. Cantor from maintaining this action; hence, the trial court erred in sustaining the motion for judgment on the pleadings.

Union Mutual contends that the action of Dr. Cantor should be dismissed, under Rule 52.04, for failure to join Hallet-Ginsburg because it is an “indispensable” party to the action. We are, of course, solicitous that the defendant, Union Mutual, should not be subjected to a multiplicity of actions. But, when the assignor maintains an action as a real party in interest, the assignee is only a “necessary” party and not an “indispensable” one. Cf. 3A Moore’s Federal Practice, supra ¶ 19.14[1], p. 2401 and authorities cited. A multiplicity of actions may be prevented by moving to join the assignee, if feasible. Rule 52.-04(a); State ex rel. Emcasco Insurance Company v. Rush, Mo.App., 546 S.W.2d 188 (1977).

We hold and conclude therefore that (1) the trial court erred in sustaining Union Mutual’s motion for judgment on the pleadings, (2) the plaintiff, Dr. Cantor, although he executed an assignment for collateral security, maintains a sufficient interest in the policy to maintain an action for disability benefits as a real party in interest, and (3) the assignee, Hallet-Ginsburg, is a necessary, although not an indispensable, party to the action and should, upon motion, be joined if feasible under Rule 52.04.

Since we hold that the trial court erred in sustaining the motion for judgment on the pleadings and that the assignor of an assignment for collateral security has a sufficient substantive interest to maintain the action against the respondent, it is unnecessary to discuss the issue raised by appellant that the respondent, Union Mutual, is es-topped to assert the defense that Dr. Cantor had assigned his interest in the policy since it had first relied upon the defense that the policy was not in effect. Neither is it necessary to discuss the plaintiff’s motion to strike the defense of an assignment.

In the posture of this case there should be a factual determination of the principal issues raised by the pleadings. It may well be that upon trial the appellant, Dr. Cantor, may not be able to prove his claim sufficiently to recover under the policy. All that we say here is that he should be given the opportunity to do so and the sustaining of Union’s motion for judgment on the pleadings was erroneous.

The judgment is reversed and the cause remanded for further proceedings.

KELLY and GUNN, JJ., concur.

      . Correspondence filed in connection with plaintiff’s affidavit in opposition to Union’s motion for judgment on the pleadings indicates that on October 25, 1973, Union received Dr. Cantor’s letter indicating he wished to continue the policy. Numerous correspondence followed and on December 3, 1973, Union wrote to plaintiff outlining the requirements for reinstatement including the premium. Dr. Cantor did not receive this letter until December 10, 1973. On December 23, 1973, Union received Dr. Cantor’s December 15, 1973 letter including “your premium dollars and requested PAC forms.”

      . Correspondence indicated that Dr. Cantor sent the letter and premium on December 15, 1973, but it was not received until December 28, 1973, after the date of the alleged disability.

      . On June 3, 1971, Dr. Cantor executed an “Assignment of Health Insurance Policy” to Hallet-Ginsburg Realty Company, a partnership organized under the laws of Ohio. The assignment stated that “I, Sol F. Cantor, the Insured under Policy No.issued by UNION MUTUAL LIFE INSURANCE COMPANY, .. . DO HEREBY, . . . assign, transfer and set over unto Hallet-Ginsburg Realty Company, ... all my right, title and interest in said Policy and in and to any and all benefits which may hereafter become payable thereunder in the event of any and all disabilities hereafter incurred by me while insured under the Policy. . . . ” In paragraph 4 of the Assignment there were two boxes for marking: (1) an absolute assignment, subject to its terms and conditions, and (2) a conditional assignment, “made as or for collateral security for any and all of my present or future indebtedness to the Assignee.” Neither box was marked. However, a notation provided that, “If neither box above is marked or if both boxes are marked, this assignment shall be considered a collateral assignment.”

      .Dr. Cantor answered: “I was under the impression that the assignment was no longer in effect. I now am told that it may or may not be in effect. I am investigating the assignment and if it is in effect, I am making arrangements to satisfy the indebtedness for which the assignment was given as security. However, the indebtedness is far less than what I believe Union Mutual owes me.”

      . Respondent argues that its motion was in reality one for summary judgment. It contends that even though plaintiff did not file a reply, defendant did not rest on its pleadings alone and filed requests for admission, the answer to which admitted that plaintiff executed the assignment and that it contained his signature. Respondent also contends that plaintiffs answer as to the assignment was evasive and implied that the debt to Hallet-Ginsburg still existed. His affidavit also showed that the debt still existed so that the assignment is still in effect and not cancelled. Hence, respondent argues, there were no genuine issues of fact. But, as shown above, we believe that the motion was not one for summary judgment.

      . 18 Couch on Insurance 2d, § 74:313, p. 421 (1968); United States v. Verrier, 179 F.Supp. 336, 340-341 (D.Me.1959); Harambee Enterprises, Inc. v. State Bd. of Agric., 511 P.2d 503, 504 (Colo.App.1973); Fifty States, etc. v. Pioneer Auto Parks, 44 A.D.2d 887, 355 N.Y.S.2d 856, 858 (1974); Texas San Juan Oil Corp. v. An-Son Offshore Drilling Co., 194 F.Supp. 396, 397 (S.D.N.Y.1961); Cargo & Tankship Management Corp. v. India Supply Mission, 221 F.Supp. 680, 685 (S.D.N.Y.1963); Frensdorf v. Stumpf, Sup., 30 N.Y.S.2d 211, 217 (S.Ct.1941)—likened to a pledge; Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208, 212 (1958)—likened to a pledge; Globe Aircraft Corporation v. Thompson, 203 S.W.2d 865, 868 (Tex.Civ.App.1947); Louk v. Patten, 58 Idaho 334, 73 P.2d 949, 951 (1937).

      . United States v. Verrier, supra, 179 F.Supp. at 340-341; Butler v. Gage, 14 Colo. 125, 23 P. 462, 465 (1889); Barak v. Detroit Apartments Corporation, 232 Mich. 59, 204 N.W. 745, 746 (1925); Chicago, R. I. & P. Ry. Co. v. Bankers’ Nat. Bank, 32 Okl. 290, 122 P. 499, 500 (1912)—assignee “may” sue; Marker v. Gillam, 54 Okl. 766, 154 P. 351, 354 (1916); Talmadge v. United States Shipping Board, etc., 54 F.2d 240, 243 (2nd Cir. 1932)—assignee “might” sue; Fox-Greenwald Sheet Metal Co. v. Markowitz Bros., Inc., 147 U.S.App.D.C. 14, 452 F.2d 1346, 1359 n.82 (1971)—recognizing assignor retains sufficient interest; 3A Moore’s Federal Practice, 11 17.09[1. — 1], p. 279 (2nd ed. 1974); 6 Wright & Miller, Federal Practice and Procedure, § 1545, p. 652 (1971) — assignee is “allowed” to sue.

      . Fifty States, etc. v. Pioneer Auto Parks, supra, 355 N.Y.S.2d at 858; Texas San Juan Oil Corp. v. An-Son Offshore Drilling Co., supra, 194 F.Supp. at 397.


source: Caselaw Access Project

author: NORWIN D. HOUSER, Special Judge.

license: Public Domain

text:
    Lois Jean ORTMANN, Respondent, v. Kenneth Lynn ORTMANN, Appellant.
    No. 37726.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Feb. 8, 1977.

      Alfred J. Rathert, Fenton, for appellant.
    Charles P. Todt, Susan M. Hammer, Clayton, for respondent.
   NORWIN D. HOUSER, Special Judge.

Appeal from a decree dissolving the marriage of Kenneth and Lois Ortmann. The only points of contention are (1) the provisions for division of the property and (2) the husband’s liability for fees awarded to the wife's attorney.

At the time of trial the parties owned the following property held in their joint names: an unencumbered 7-room residence property valued by the parties at from $27,-000 to $35,000, and 21 shares of IBM stock then worth between $3,780 and $4,200.

The household furnishings in the home were purchased by the wife, out of her own earnings while employed at Maritz, Inc.

The wife was possessed of a 1974 Ford Mustang which she purchased to use in traveling to work (75 miles a day) and on which she owed $3,000. The wife had a checking account of $300 or $400. In addition to the debt on the Mustang the wife owed $2,000 (borrowed by the husband on his life insurance) and she owed her father $1,000 (borrowed for living expenses).

The wife’s financial requirements each month included $383 for general expenses, $100 for her personal needs and $100 to maintain the parties’ 17-year-old unemanci-pated daughter, whose custody was awarded to the wife. The wife was employed at IBM at a monthly salary of $875.

The only property owned separately by the husband consisted of his carpenter tools, hunting, fishing and camping equipment and a truck, which was demolished in an accident. The husband owed a psychiatrist $650 and owed another doctor $190 for treating him for pneumonia.

The circuit court found that the Mustang, the corporate stock, and the household furnishings were the separate property of the wife, and awarded these properties to her as such, ordering that she assume “all obligations therefor.” The court found the residence property to be marital property, of the value of $27,000, and valued the husband’s interest therein at $5,000. The husband was ordered to pay the wife $15 per week for the support of the 17-year-old daughter. The wife was allowed to continue occupancy of the residence until the emancipation of the daughter or the remarriage of the wife, at which time the residence was ordered sold and that out of the proceeds the husband be paid $5,000 for his equity. The court ordered the husband to pay the wife’s attorney’s fees in the sum of $1,800, and assessed the court costs against the husband.

(1) The division of the property

In his first point the husband complains that the distribution was unfairly weighted in favor of the wife and asserts error in awarding the wife the corporate stock as her separate property “because the IBM stock was marital property.” He has no complaint about the awarding of the Mustang (on which there was a $3,000 debt) to the wife as her separate property, but he complains that the household furnishings should not have been ruled her separate property. The court justified its findings in these respects on the ground that these items were purchased “from her earnings.”

The corporate stock in question was acquired by the wife under an option which allows employees to buy the company’s stock at 85% of market value. For 6 years during the marriage the wife had part of her salary withheld for the purpose of purchasing company stock. The shares were issued in the joint names of the parties. Under Chapter 452, RSMo 1969 where, as in this case, a spouse furnishes the consideration for and purchases property in the joint names of the husband and wife it will be presumed, in the absence of clear and convincing evidence rebutting the presumption, that such property is marital property unless it is shown by clear and convincing evidence that the property was acquired in exchange for property acquired prior to the marriage or that the transfer was not intended as a provision for a settlement upon or as a gift to the other spouse. Conrad v. Bowers, 533 S.W.2d 614, 622 (Mo.App.1975). Since the purchase of the stock was made with earnings during the marriage, the stock purchased with the marital proceeds became marital property regardless of how title was taken. § 452.330. There is no evidence that the transfer of the IBM stock into the joint names of the parties was not intended as a settlement upon or gift to the husband, and the court therefore erred in designating the IBM stock as the separate property of the wife. It is marital property within the meaning of § 452.330.

The court further erred in holding that the household furnishings constituted separate property of the wife, notwithstanding she paid for them out of her earnings. They were acquired subsequent to the marriage and prior to a decree of legal separation; they do not fall within any of the exceptions listed in subparagraph 2 of § 452.330, and therefore the household furnishings are presumed to be marital property notwithstanding they were paid for out of the wife’s earnings and regardless of whether the title was held individually by the wife or jointly with the husband. Sub-paragraphs 2 and 3, § 452.330, supra.

The Mustang is marital property for the same reasons but we will not disturb the court’s designation of the Mustang as the separate property of the wife, since the husband makes no claim in this respect.

Having then determined that the marital property in contention consists of the residence, the IBM stock and the household furnishings we turn to the question whether the distribution was unfairly weighted in favor of the wife. This requires a consideration of all relevant factors, including the contributions of the spouses to the acquisition of the marital property, the value of the property set apart to each spouse, their economic circumstances, and the conduct of the parties during the marriage. § 452.330, subparagraph 1.

Over a period of 4½ years the wife saved $4,000 from her earnings while employed at a bank. This money was used as a down payment on the parties’ residence property, which cost $8,000. A $4,000 loan on the house was paid from the husband’s earnings. The highway department bought the property, paid the parties $15,000, then transferred the house to them with the right to remove the structure to another part of the property. The $15,000 was used to install a foundation for the house at its new location and to improve the house by installing plumbing, a septic tank, pouring a basement floor, building a 2-car garage, and enlarging the house from 24 X 32 feet to 24 X 79 feet. This work was done by the husband personally. Although the husband contributed nothing to the acquisition of the corporate stock or the house furnishings, he did from time to time and from job to job work in the construction industry “when he could,” but according to the wife he did not put his family first and would spend money on himself “foolishly,” such as spending four or five dollars at a tavern. His unemployment at time of trial was attributed to economic conditions in the building industry. In 1973 each of the parties earned approximately $9,900. Their joint income tax return for 1974 showed her income was $10,240; his either $9,600 or $9,700. The wife paid 90% of the bills during the year preceding the trial. Through her employment she has a hospital, major medical and dental program covering her and her children. If disabled she would get 75% of her income for the first year, and then it would drop to 40%. It was reasonable to award the wife the right to occupy the home while the daughter, whose custody was granted to the wife, remains un-emancipated at home, or until the wife is remarried. The husband’s brief concedes this is not unreasonable. With respect to the conduct of the parties during the marriage the merits are all with the wife. Notwithstanding she worked in outside employment, constantly contributing to the common weal throughout the marriage, except during the infancy of the children, she performed all of the duties of a good wife, mother and homemaker. Her conduct as such was shown to have been exemplary. The husband conceded in his brief that her uncontradicted evidence “was to the effect that she had been a good mother to the children, and had been a good homemaker.” He testified that his wife had been a good wife to him. To the contrary the evidence together with his admissions reveals him as a violent, abusive, undependable husband and father who has an admittedly serious drinking problem. He frequently cursed, threatened, frightened, embarrassed and intimidated the various members of the family. He mentally and physically abused his wife (striking her physically from time to time and tearing off an ear during one assault upon her) and has generally conducted himself in a manner completely disruptive of a normal home and family life.

A consideration of these and all other relevant factors substantiates and justifies a decree awarding the corporate stock and household furnishings to the wife as part of her share of marital property, permitting her to occupy the residence property temporarily and until the daughter is emancipated or the wife remarries, and insuring that upon the sale of the residence property she receive the lion’s share of the proceeds.

In view of prevailing economic conditions, however, including the rising tide of inflation, the court erred in determining that upon the future sale of the residence property the husband’s equity be paid him in a fixed sum or definite number of dollars. Instead, he is entitled to a percentage of the net proceeds of the sale of the residence property, after payment of all proper charges and expenses of sale. Considering all of the foregoing, and particularly in view of our holding that the corporate stock and household furnishings are marital property and not the wife’s separate property, and having in mind the husband’s contribution to the payment of the debt incurred when the house was first purchased, as well as his substantial efforts in improving the house after it was moved, the husband is allowed a percentage participation in the net proceeds of the sale of the residence property, when that sale occurs in the future, which percentage is hereby fixed at one-third (instead of a lump sum award of $5,000) and'the wife is allowed the remaining two-thirds of the net proceeds.

(2) The award of attorney’s fees

The husband's second point is that the court erred in awarding the wife’s attorney’s fees in the sum of $1,800 “because there was no evidence before the court that respondent was unable to employ and pay her own attorneys fees”; that all of the evidence showed that the wife was employed and had sufficient income and resources with which to pay her counsel, while the husband at time of trial was unemployed and had no resources.

There was evidence, and the husband concedes, that the reasonable value of the legal services rendered by the wife’s attorney was the sum of $2,025. The reason given by the court for awarding the wife $1,800 on this item was that the husband, during the time the case was on the docket, “has required a great number of Court appearances on the part of [the wife] and her counsel.” There is no evidence that in requiring a great number of court appearances on the part of the wife and her counsel the husband engaged in abuse of process or harassment. Nor has she shown the amount of extra legal charges to which she has been subjected for the allegedly unnecessary trips to court. The wife had the burden of proof on these matters but she has failed to make a sufficient showing to fix a dollar value on any such alleged impositions. Having failed to meet this burden the husband’s liability for the wife’s attorney’s fees is to be treated the same as in any other case.

Section 452.355, RSMo 1969 provides: “The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount * * * for attorney’s fees * * * The fundamental consideration in determining whether the wife is entitled to an award of attorney’s fees is whether she is possessed of sufficient means to prosecute or defend the action on her own. L.J.S. v. V.H.S., 514 S.W.2d 1 (Mo.App.1974). The allowance is discretionary with the trial court and is to be exercised “in view of the circumstances of both parties, including the ability of the husband to pay.” S.G.E. v. R.L.J., 527 S.W.2d 698, 703[6] (Mo.App.1975). The allowance is to be made where the wife “does not possess sufficient means of her own to finance the litigation, but there must be evidence to establish the wife’s need to have the expense borne by the husband.” Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975). It is the wife’s need that warrants an award against the husband. She need not be destitute to be entitled to such an award, but as indicated in Larison for the wife to look to the husband for payment of her attorney’s fees there must be a disparity of means to pay. This means that the husband’s ability to pay must exceed that of the wife.

Under these controlling decisions and the evidence in this case the order requiring the husband to pay $1,800 as and for the wife’s attorney’s fees is unreasonable and constituted an abuse of discretion. The wife is in much better financial circumstances than the husband. She earns $875 per month; he is unemployed. She has a house to live in; he has none. She has money in the bank and corporate stocks worth several thousand dollars; he has no financial assets, no bank account, no stocks, nothing but his carpenter tools, and his hunting, fishing and camping equipment. She has already paid her lawyer $500 and is possessed of sufficient means to pay the balance. There is no disparity of means to pay in her favor; the disparity favors the husband. Without any income except that which he may receive from doing odd jobs as a carpenter, he is obligated to pay his own attorney’s fees, $15 a week for child support and $840 doctors’ bills, in addition to his regular monthly living expenses. He is simply not financially able to pay the wife’s attorney’s fees.

Accordingly, the decree of November 21, 1975 is ordered modified as herein provided with respect to what constitutes the marital property and how it shall be divided, and that part of the decree ordering the husband to pay $1,800 to the wife’s attorney is reversed. The cause is remanded for the entry of a new decree, to be entered as of November 21, 1975, consistent with the views expressed in and the holdings of this opinion.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


author: BROCK, Justice.

text:
    Harold T. BRUNDIGE, Executor, et al., Appellants, v. Addie Ford ALEXANDER et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 4, 1976.
    Harold T. Brundige, William Michael Ma-loan, Brundige & Maloan, P. C., Martin, for appellants.
    Bruce Conley, Maness, Conley & Hayes, Union City, for appellees.
   OPINION

BROCK, Justice.

This is an action to construe a will. On June 22, 1974, Mrs. Betty Condra, testatrix, and her husband, R. W. Condra, were killed when their automobile was struck by a train on a railroad crossing, the circumstances affording no evidence that either survived the other. Mrs. Condra left a will in which she made numerous gifts to churches and individuals and which contained the following residuary clause:

“16th: All of the rest or residue of my estate, I give, devise and bequeath to my dear husband, R. W. Condra, in fee simple and absolutely.”

The will contains no provision with respect to the disposition to be made of her estate in the event she and her husband should die in a common disaster.

Mrs. Condra left no children but Mr. Con-dra is survived by four children of a prior marriage. These children of Mr. Condra, along with the executor of the will, are the plaintiffs in this action and appellants in this Court. As the surviving issue of Mr. Condra, they claim the residuary estate under Mrs. Condra’s will by virtue of the antilapse statute, T.C.A. § 32-306, which provides:

“Whenever the devisee or legatee to whom, ... an immediate devise or bequest is made, dies before the testator, or is dead at the making of the will, leaving issue which survives the testator, said issue shall take the estate or interest devised or bequeathed which the devisee or legatee . . ., as the case may be, would have taken, had he survived the testator, unless a different disposition thereof is made or required by the will.”

To render the foregoing statute applicable, it is, of course, necessary to show that the beneficiary “dies before the testator." To accomplish this, the appellants rely upon another statute, the Uniform Simultaneous Death Act, T.C.A. § 31-501 et seq., the pertinent provisions of which are as follows:

“Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.” T.C.A. § 31-502.

Defendants assert that the antilapse statute does not apply since there is no evidence that Mrs. Condra, the testatrix, survived the legatee, Mr. Condra, and that the Uniform Simultaneous Death Act affords no presumption that Mrs. Condra survived Mr. Condra. The trial court agreed with this contention of the defendants and decreed accordingly.

Whether or not these two statutes should be construed in the manner and with the result urged by the plaintiffs depends upon the legislative intent embodied in each of them. Since both statutes deal with the devolution of property of decedents, we deem them to be in pari materia and will construe them accordingly. See State v. Hughes, Tenn., 512 S.W.2d 552 (1974); Marshall v. Marshall, 25 Tenn.App. 309, 156 S.W.2d 449 (1941); Craft v. Blass, 8 Tenn.App. 498 (1928).

With respect to the purpose and effect of the antilapse statute, T.C.A. § 32-306, this Court in Weiss v. Broadway Nat’l Bank, 204 Tenn. 563, 322 S.W.2d 427, 432 (1959) said:

“Under this statute the issue that survives a deceased devisee or legatee takes as the substituted legatee of the deceased ancestor (sic) just as if their names had been inserted in the will by the testatrix herself. This statute is not for the benefit of . the dead legatee, but is intended to safeguard the interests of those who take under him.
“The Courts of the Country are at variance as to whether or not a statute of the kind should receive a liberal or strict construction. We think that the Virginia Court in Wildberger v. Cheek’s Ex’rs, 94 Va. 517, 27 S.E. 441, 443, correctly held in reference to such a statute that:
‘The statute is in furtherance of what may fairly be presumed to have been the intention of the testator, and, in order to effect its object, it should be construed liberally.’
“And it was further said in this case in reference to a similar statute to ours, that:
‘This section made a sweeping change from the common-law doctrine of lapsed or void legacies, declaring what the law should be in the future in no uncertain language and our courts cannot make exceptions and uphold distinctions where the plain letter of the law recognizes none.’
“In Page On Wills, Lifetime Edition, Vol. 4, Sec. 1422, p. 176, of these lapsed legacy statutes the author has this to say:
‘These statutes are said to be based upon the presumption that testator would have made provision for certain relatives of the deceased beneficiary, if his intention had been called to the death of the beneficiary, and he had the opportunity to make such provision.’ ”

It is clear then that this Court is committed to the policy of giving this statute a liberal construction to effect its obvious purposes and objects. We note that this is also the policy followed by most of the jurisdictions which have similar statutes. Mathis v. Mathis, 402 Ill. 60, 83 N.E.2d 270 (1948); Re Finch’s Estate, 239 Iowa 1069, 32 N.W.2d 819 (1948); Woolley v. Paxson, 46 Ohio St. 307, 24 N.E. 599 (1889); Hester v. Sammons, 171 Va. 142, 198 S.E. 466 (1938); Re Dodge’s Estate, 1 Wis.2d 399, 84 N.W.2d 66, 63 A.L.R.2d 1192 (1957).

This Court in White v. Kane, 178 Tenn. 469, 159 S.W.2d 92 (1941) in stating the purpose and policy of this statute, had this to say:

“And the primary purpose of these acts was to prevent this lapse of the devise or legacy, and to save it to the representative of the deceased devisee.
“The idea was, inasmuch as an outright gift must have been intended by the testator, to be at the complete disposition of the devisee or legatee, and therefore subject to descend to his issue, if he had any, the gift ought not to lapse in the event of the devisee’s or legatee’s death before that of the testator, but ought to be saved to his issue, that is, to his representatives in blood.
* * * * * *
“There was a reason, and a sound one, for saving the devise or legacy to the donee’s family, for, as pointed out above, it would be in accordance with the testator’s intention that an outright gift should be subject to descent from the donee to his heirs and distributees.” Id. at 94, 95.

At common-law, the general rule is that where several persons perish in a common disaster, notwithstanding differences of age, sex, and physical strength, there is no presumption as to survivorship, but it is a fact to be proved by the party asserting it. It is not presumed at common-law that one individual survived another, or that they died simultaneously, even in the absence of proof that one survived the other. McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509 (1921). Thus, the common-law rule governing the devolution of property of persons who have perished in a common disaster when there is no evidence as to which died first is that the courts will dispose of their property rights as though death occurred to all at the same time. These common-law rules have now been supplanted in this State and in most of the states by the Uniform Simultaneous Death Act. It is true, as insisted by the defendants, that this Act does not afford any presumption as to survivorship between persons killed in a common disaster, Moore v. Palen, 228 Minn. 148, 36 N.W.2d 540, 7 A.L.R.2d 1374 (1949), nor does the Act constitute a rule of evidence. In Re Cruson’s Estate, 189 Or. 537, 221 P.2d 892, 20 A.L.R.2d 219 (1950); it is, instead, a rule of substantive law controlling the devolution of the property of persons who die in a common disaster and there is no sufficient evidence that they have died otherwise than simultaneously.

There can be no doubt that the Uniform Simultaneous Death Statute applies in this case; indeed, defendants urge its application with respect to certain property held by Mr. and Mrs. Condra as tenants by the entireties, discussed hereinafter. The crucial question is whether or not the antilapse statute is applicable to the case. We hold that it does apply, that the mandate of T.C.A. § 31-502 that “the property of each person shall be disposed of as if he had survived” requires the court in construing Mrs. Condra’s will to assume (proceed “as if”) that Mr. Condra predeceased Mrs. Con-dra, the testatrix, thus activating the anti-lapse statute and making it applicable. In our view, the policy and legislative intent of each of these statutes requires this conclusion.

To our knowledge, the only other case in which this precise issue has been presented is Mayor and City Council of Baltimore v. White, 189 Md. 571, 56 A.2d 824 (1948). Therein, the Maryland court reached the same conclusion as we, and, in the course of their opinion, said:

“The City contends that when section 89 (the Uniform Simultaneous Death Statute) is applicable, the lapsed legacy statute is not applicable, because the former is applicable only when there is no sufficient evidence of survival and the latter only when the testator survives. This contention is untenable. Section 89 provides for disposition ‘as if’ the testator had survived; consequently it incorporates by reference the provision in the lapsed legacy statute if the testator survives. The two statutes, thus construed together, may produce a different result than either standing alone.” Id. at 826.

See also In Re Macklin’s Will, 177 Misc. 432, 30 N.Y.S.2d 706 (1941).

Defendants rely heavily upon Carpenter v. Severin, 201 Iowa 969, 204 N.W. 448, 43 A.L.R. 1340 (1925). That case is not in point, however, because the Uniform Simultaneous Death Act was not in effect and the court necessarily relied upon the common-law rule that when two persons die in a common disaster the property of each should devolve as if both died at the same instant.

We conclude, then, that the residuary legacy under Mrs. Condra’s will passed to the plaintiffs as the surviving issue of Mr. Con-dra.

At the time of their death, Mr. and Mrs. Condra owned as tenants by the entireties savings certificates worth approximately $40,000.00. Plaintiffs argue that they succeed to Mrs. Condra’s interest in these certificates by virtue of the application of the antilapse statute and of T.C.A. § 31-504, another section of the Uniform Simultaneous Death Act, to the residuary clause of her will.

T.C.A. § 31-504, provides:

“Where there is no sufficient evidence that two (2) joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half (½) as if one survived and one-half (½) as if the other had survived. If there are more than two (2) joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.”

Appellees agree that T.C.A. § 31-504 applies, but contend that the one-half interest of Mrs. Condra “cannot pass under the provisions of her will, as she received the property as a result of the death of the person named in the residuary clause.” They argue that “The anti-lapse statute applies to property only in cases where a will is involved. It does not apply to property that does not pass by will. The jointly owned property did not pass by will, and, therefore, cannot be saved by the anti-lapse statute.” The error of this argument is that the one-half interest of Mrs. Condra did not come to her as a result of the death of her husband or because of the simultaneous death statute. Her interest in this particular property, as well as the interest of her husband, came by virtue of the original purchase. The simultaneous death statute has merely dictated that, because of the simultaneous death of the tenants, the interest of each of them shall be distributed in the particular manner provided by the Act, rather than devolve as it would have if one of the tenants actually had survived the other.

The usual rule that the interest of a tenant by the entireties cannot be passed by will, Beddingfield v. Estill, 118 Tenn. 39, 100 S.W. 108 (1907); Sloan v. Jones, 192 Tenn. 400, 241 S.W.2d 506, 25 A.L.R.2d 1235 (1951), has no application to this case. Due to the simultaneous death of the tenants, there is no survivor, and, hence, the normal devolution of such property is frustrated.

There can be no doubt that T.C.A. § 31-504, controls the disposition of the property held by the decedents as tenants by the entireties; the real issue in this case with respect to the interest of Mrs. Condra in such property is whether it passes under the residuary clause of her will to the surviving issue of Mr. Condra or devolves as intestate property to her distributees. This question is one of first impression in this state.

The language employed by Mrs. Condra in the residuary clause of her will, viz., “All of the rest or residue of my estate .,” is broad and inclusive. We hold that it encompasses the one-half (1/2) interest of Mrs. Condra in the savings certificates which T.C.A. § 31-504 directs “shall be distributed as if” she survived Mr. Con-dra, the residuary legatee.

This Court has long been committed to the philosophy expressed by the late Chief Justice Neil in Ledbetter v. Ledbetter, 188 Tenn. 44, 216 S.W.2d 718, 720 (1949):

“The law presumes that one who undertakes to make a will does not intend to die intestate; ‘and the courts will place such a construction upon the instrument as to embrace all the testator’s property, if the words used, by any fair interpretation or allowable implication will embrace it.’ Sizers Pritchard on Wills, Sec. 386. “A general residuary bequest or devise carries not only property such as the testator did not attempt to dispose of by will but such as was not effectually disposed of. Reeves v. Reeves, 73 Tenn. 644-654. “Under a broad general devise ‘of property of every kind,’ all property of the testator would pass even though the testator had no knowledge of the ownership of it. Ingham’s Estate, 315 Pa. 293, 172 A. 662, 93 A.L.R. 510; Verchot’s Estate, 4 Wash.2d 574, 104 P.2d 490.”

In Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258 (1969), language identical to that used in the instant residuary clause was construed. It was held that “ ‘all the rest and residue of my estate’ not only carries to the residuary legatee such of the testator’s property as the testator did not attempt to dispose of by his will ‘but also such as was not effectively disposed of thereby . . . the presumption being that the testator did not intend to die intestate as to any part of his property . . . ’” p. 262. It is our opinion that the decision we have reached upon this issue is consistent with and required by the views expressed in the Ledbetter and Feh-ringer cases. See also Page on Wills, Vol. 4, pp. 376-377; 80 Am.Jur.2d, Wills, §§ 1359, 1541, 1543. Of course, it is true that one cannot make a postmortem disposition of property which at the time of his death he did not own, or in which he had no right, legal or equitable. Re Estate of Braman, 435 Pa. 573, 258 A.2d 492. But, such is not the case here.

The California Appeals Court has reached a result similar to ours. In In Re Meade’s Estate, 228 Cal.App.2d 169, 39 Cal.Rptr. 278 (1964), a husband and wife were killed simultaneously in an airplane crash. They owned both joint and community property, but each also had a will. It was argued that the effect of the Uniform Simultaneous Death Act, dealing with jointly owned property was to convert into intestate assets such jointly held property, and that the wills of the decedents were not effective as to those assets. The California court disagreed and held that the one-half (½) interest distributed to the estate of each decedent passed under his or her will.

The decree of the trial court is reversed and the cause is remanded for further proceedings in conformity with this opinion. Costs incurred in this Court will be borne by the appellees.

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


author: HARBISON, Justice.

text:
    BANKERS LIFE AND CASUALTY COMPANY, Petitioner-Defendant, v. Elizabeth (Mrs. J. D.) JENKINS, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Feb. 22, 1977.
    James E. Brading, Johnson City, for petitioner-defendant; Herndon, Coleman, Brad-ing & McKee, Johnson City, of counsel.
    Edwin B. Charles, Paul J. Sherwood, Johnson City, for respondent-plaintiff.
   OPINION

HARBISON, Justice.

In this action the beneficiary of a travel accident insurance policy, Mrs. J. D. Jenkins, seeks to recover for the death of her husband, the named insured. The case was tried without a jury. The trial court gave judgment for the beneficiary, but the Court of Appeals reversed and remanded for a new trial.

Mr. Jenkins, the insured, was killed while operating a pick-up truck furnished to him by his employer, en route to his home on the night of Sunday, September 23, 1973. He had telephoned his wife from his place of employment shortly before the accident, but no witness who testified had seen him for several hours previously.

The insurance policy excluded coverage for “any loss sustained in consequence of the Insured being intoxicated . . . .”

Mr. Jenkins was fatally injured when his truck hit a tree. The accident occurred at about 9:45 p. m. At the point where it occurred, the road was straight, there were no obstacles or road conditions to create problems for a motorist, the weather was clear, and the pavement was dry. The truck driven by the insured veered off the road to its right, crossed a ditch, hit a culvert, crossed a driveway into a yard and struck a walnut tree, coming to rest some 258 feet from the highway. The vehicle was completely demolished, indicating a very severe impact. The insured received crushing injuries to his chest resulting in immediate death. The investigating highway patrolman was unable to find evidence of any other vehicle having been involved, and there is no testimony in the record suggesting any cause of the accident, other than the ingestion of alcohol by the decedent.

A blood specimen was drawn from the body of the insured within a little over an hour after the accident and was transmitted by the highway patrol to a toxicology laboratory in Kingsport. Blood alcohol tests run at the laboratory revealed an ethyl alcohol content of .26 percent. Both the toxicologist and an independent pathologist testified that a blood alcohol content of this level would produce intoxication in any person, and would impair the ability of any individual safely to operate a motor vehicle. The pathologist testified that a blood sample taken within thirty-six hours after death will reflect accurately the alcoholic content at the time of death. There is no countervailing evidence on this subject.

The trial court excluded all testimony concerning the taking of the blood sample and the results of the test, as well as the opinion of the pathologist, holding such evidence inadmissible under T.C.A. § 59-1045. This section prohibits the use of blood alcohol tests against a motorist from whom a sample is taken while he is unconscious or otherwise in a condition rendering him incapable of refusal. It is part of the Implied Consent Law, T.C.A. §§ 59-1044 — 1051. These provisions deal primarily with criminal charges and licensing proceedings directly involving an accused from whom the sample is taken. Even in criminal cases, it has been held that the methods prescribed in these statutes for introducing the results of blood tests are not exclusive, but are supplementary to other methods in use. Bunch v. State, 499 S.W.2d 1 (Tenn.1973).

The results of blood alcohol tests have regularly been admitted and considered in civil cases. See Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976); Gentry v. Lilly Co., 476 S.W.2d 252 (Tenn.1971); Hobbs v. Provident Life and Accident Insurance Company, 535 S.W.2d 864 (Tenn.App.1975).

The Court of Appeals held that the trial judge should have admitted the proffered evidence. Since he did not do so, it concluded that the case should be remanded for a new trial.

All of the proffered testimony was filed in the record, however, in deposition form. Its contents were stated to the trial judge in an offer of proof. In his oral opinion rendered at the conclusion of the trial, the Chancellor stated that even if this evidence had been admitted and considered by him, he did not consider it persuasive or sufficient to sustain the burden of proof resting upon the insurance carrier to establish a causal relation between the intoxication of the insured and his subsequent death.

This is a non jury proceeding. Both sides submitted all of the evidence which they proposed to offer and rested their cases. The record is complete. We, therefore, see no need for a remand. The trial judge has already made it clear that even considering the excluded evidence, he would hold that the insurer has not established its defense.

In our opinion, this conclusion of the Chancellor is contrary to the weight and preponderance of that evidence which was admitted and the evidence which should have been admitted. It is true that under the exclusion involved here, the burden of proof rests upon the insurance carrier to show by a preponderance of the evidence that the death of the insured resulted from intoxication. That is, causal connection must be established between his state of intoxication and the accident in which the fatal injuries were sustained. See Interstate Life & Accident Insurance Company v. Gammons, 56 Tenn.App. 441, 408 S.W.2d 397 (1966).

In our opinion, the insurer has carried its burden on this record. No reasonable or probable hypothesis or explanation of the accident has been suggested, other than the high degree of intoxication of the insured and his consequent inability to operate a motor vehicle safely upon the highways.

This is not a workmen’s compensation case, in which appellate courts are restricted in their review to the issue of whether there is enough evidence to support the findings of a trial judge, where differing or conflicting inferences could be drawn from proof of intoxication. See Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 861 (Tenn.1976). Rather, in a nonjury action of this nature, review is de novo, upon the record, accompanied by a presumption of correctness of the findings of the trial judge unless these are contrary to the preponderance of the evidence. T.C.A. § 27-303.

Upon the present record, there is no other explanation of the accident except intoxication. This distinguishes the case from the situation presented in Interstate Life & Accident Insurance Company v. Gammons, supra. There a number of witnesses testified as to other factors besides intoxication which could have caused or explained the accident. In the present case it would be completely speculative to assume that the accident was caused by another vehicle, a mechanical failure of the truck, a road defect or anything else than the demonstrated intoxication of the insured.

In addition to the exclusion with reference to intoxication, the insurance carrier also relied upon other policy provisions, limiting coverage to injuries sustained in particular types of motor vehicles. We find it unnecessary to discuss these issues, in view of the disposition which we have made of the case.

The judgment of the trial court is reversed and the suit is dismissed at the cost of respondent.

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


text:
    Bettye F. BROWNE, Petitioner, v. Thelma Layhew BROWNE, Executrix, Respondent.

    Supreme Court of Tennessee.
    April 25, 1977.

      Clyde Paul Holland, Nashville, for petitioner.
    John R. Reynolds, Nashville, for respondent.

        Editor’s Note: The opinion of the Supreme Court of Tennessee, in State v. Pursley, published in the advance sheets at this citation (547 S.W.2d 239), was withdrawn from publication by request of the Court.

   OPINION

BROCK, Justice.

We granted certiorari in this case to determine whether or not the county court, in the exercise of its probate jurisdiction, is authorized to determine the ownership and right to possession of personal property when conflicting claims to such property are made by the representative of a decedent’s estate and by a third party who is a stranger to the estate. The County Court of Williamson County asserted that it did possess such jurisdiction but, upon appeal, the Court of Appeals held to the contrary.

The petitioner, Bettye Browne, filed a claim in the County Court against the Executrix, respondent here, asserting that certain personal property in the possession of the Executrix had been given to her by the owner, Naomi Browne Doss, during her lifetime and, therefore, that the Executrix acquired no title from her decedent, James G. Browne. The County Court found the disputed issues in favor of the petitioner and awarded said property to her. Upon appeal to the Court of-Appeals, that court, sua sponte, raised the issue whether or not the County Court had jurisdiction to determine title to said personalty, concluded that it did not have such jurisdiction and, accordingly, reversed the judgment of the County Court and dismissed petitioner’s claim. The Court of Appeals did not determine the issues respecting the merits presented in that court.

We hold that the county court in the exercise of its probate jurisdiction does have the power and authority to adjudicate conflicting claims of ownership and right of possession to personal property which is claimed both by the representative of a decedent’s estate and by third parties who claim title, not through the decedent and his representative, but from another source. T.C.A. § 16-709(5), 16-711; T.C.A. §§ 30-509 — 30-518; 33 C.J.S. Executors and Administrators § 176, Property Claimed by Third Persons, p. 1147.

In our opinion, the code sections cited, particularly T.C.A. §§ 30-509, 30-510 and 30-518, confer upon the county court jurisdiction to determine the issues presented in this case.

T.C.A. § 30-510 provides that “within six (6) months from the date of the notice to creditors, required by § 30-509, all persons . having claims against the estate of the decedent . . . shall file them with the clerk of the court in which the estate is being administered.” T.C.A. § 30-517 provides for a hearing in circuit court on a claim if a jury is demanded, but if a jury is not demanded, T.C.A. § 30-518, provides that the county or probate court “. . . shall hear and determine all issues arising upon . . .” a claim and exceptions thereto. Then follows language which we consider to plainly recognize the authority of the probate court to adjudicate claims such as the one at bar:

“Notwithstanding the provisions of § 30-509 — 30-517, whenever there shall be instituted in any other court of competent jurisdiction an independent suit against a personal representative involving liability of the estate, and a claim founded on the same cause of action shall have been or shall be filed against the estate in the manner provided in §§ 30-510, 30-511, which claim has not been adjudicated by the court wherein the administration is pending, the court wherein the administration is pending shall hold in abeyance any action on such claim until the final determination of said independent suit.

This Court has said that all doubts as to the jurisdiction of matters involving administration of an estate should be resolved in favor of the county court. Fox v. Commerce Union Bank, 186 Tenn. 181, 209 S.W.2d 1 (1948). This Court has approved a statement by the Court of Appeals which declared that the statutes above cited are designed to afford a simple and informal method of filing and determining claims against decedent’s estates and, to that end, are to be liberally construed. In Re Myers’ Estate, 55 Tenn.App. 195, 397 S.W.2d 831 (1965).

Although the question at hand is one purely of ascertaining the legislative intent from the applicable statutes, it should be noted that the conclusion we have reached is consistent with authorities elsewhere. 33 C.J.S. Executors and Administrators § 176, p. 1147. Our conclusion is also consistent with prior decisions of this Court respecting issues closely related to the one at bar. Thus, in Teague v. Gooch, 206 Tenn. 291, 333 S.W.2d 1 (1960), it was held that the county court was empowered to decide whether a sum of money was part of an estate or had become the subject of an inter vivos gift; and, in In Re Love’s Estate, 176 Tenn. 696, 145 S.W.2d 778 (1940), it was held that the county court had jurisdiction to decide whether a note that was prima facie an asset of an estate, but which was forgiven by a writing executed and delivered by the testator during his lifetime, and which was included in the inventory, should be credited to the administrator on final settlement. The issue in the last mentioned case was essentially the same as the one presented in this case, i. e., whether property that appears to be part of the decedent’s estate may, in fact, have been given to another.

Admittedly, language of this Court in Dick v. Dick, 223 Tenn. 228, 443 S.W.2d 472 (1969), may lend some support to the contrary conclusion reached by the Court of Appeals, although the strict holding in that case does not.

The petitioner also asserts that the appeal from the county court should have been made to the circuit court rather than to the Court of Appeals. The Court of Appeals decided this issue contrary to the petitioner’s insistence and we concur in that holding for the reasons stated in the opinion of the Court of Appeals.

The judgment of the Court of Appeals is reversed and this cause is remanded to that Court for consideration of the assignments of error made therein which were preter-mitted in its opinion and judgment here under review.

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


author: HENRY, Justice.

text:
    Wilma WHITTINGTON, Petitioner, v. GRAND VALLEY LAKES, INC., Respondent.
    Supreme Court of Tennessee.
    April 25, 1977.

      H. Morris Denton, Denton & Cary, Bolivar, for petitioner.
    Dewey C. Whitenton, Bolivar, for respondent.
   OPINION

HENRY, Justice.

This is an action for trespass upon land wherein the jury returned a verdict for $1,500.00 compensatory and $2,500.00 punitive damages. The Court of Appeals held that the proof did not support an award of compensatory or punitive damages and remanded for the assessment of nominal damages. Essentially the question before us is the sufficiency of the evidence relating to compensatory damages, a necessary predicate for punitive damages.

I.

In March, 1973, petitioner purchased an unimproved lot in respondent’s 4,500 lot subdivision located in Hardeman County for $3,500.00. During the fall of 1974 she visited her property and discovered that topsoil was being removed therefrom. She protested and made every reasonable effort to cause a discontinuance of this trespass upon, and damage to her property. While the proof is in dispute, there is ample material evidence that notwithstanding her protestations, the respondent continued to remove topsoil to a depth up to two feet.

The respondent admits the trespass but insists that it was unintentional and without knowledge of petitioner’s ownership. After all damage had been done, respondent spent $600.00 to $700.00 in restoring the topsoil, grading the lot and sowing it down in grass.

The Court of Appeals held that there was “no material evidence in the record from which the amount of actual damages could have been found or reasonably inferred”, and that because “[tjhere [was] no evidence upon which actual damages could have been found, punitive or exemplary damages are not permitted.” The Court remanded for the assessment of nominal, damages.

We do not agree that there was no material evidence of actual damages, except in a narrow and restricted technical sense. There was undisputed evidence of a trespass. Moreover, it was not just a naked invasion of the property rights of the owner; there was a removal of a portion of the property — the topsoil. It is true that no witness testified to dollar amounts of “before and after” damages; however, the proof is undisputed that there was a trespass, a taking and removal of topsoil to the extent that it required $600.00 to $700.00 to restore the property to its former condition. This is clear, competent and convincing proof of damages, to the extent of these dollar amounts. And this is true even though the cost and expense of restoration were defrayed by the wrongdoer.

Under these circumstances the jury verdict of $1,500.00 compensatory damages may not stand. All the actual damages this property owner suffered have already been paid by the services rendered in restoration of the lot to its original condition.

II.

This leaves for our consideration the matter of punitive damages, as affected by the general rule in this jurisdiction that actual or compensatory damages must be found as a predicate for the recovery of punitive damages. This rule was first fully developed in Tennessee in the landmark case of Allen, et al., v. Melton, 20 Tenn.App. 387, 99 S.W.2d 219 (1936), wherein the late Judge Paw, with characteristic clarity, discussed the matter in some detail, citing numerous authorities and cases.

This general rule was followed in Liberty Mutual Ins. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963), wherein the Court held that to sustain an award of punitive damages, actual damages must have been awarded.

In Lazenby v. Universal Underwriters Insurance Co., 214 Tenn. 639, 383 S.W.2d 1 (1964) the Court held that punitive damages are allowed only after an award of compensatory damages.

Lazenby was followed by the Sixth Circuit, applying Tennessee law, in Dill v. Greyhound Corporation, 435 F.2d 231 (6th Cir. 1970).

The courts of Tennessee appear to follow the majority rule although a small number of jurisdictions allow punitive damages as an independent basis of recovery, and a number of states have held that the plaintiff must have received injuries entitling him to compensation, although no actual award of compensatory damages were made. A substantial number of jurisdictions recognize nominal damages as a proper predicate. See Annotation, 17 A.L.R.2d 527, actual damages as a necessary predicate of punitive damages.

The underlying consideration seems to be that there must be some actual loss supported by proof. We do not at this time and in this case feel any need to alter, erode or modify prior Tennessee case law. Here, actual damages were clearly demonstrated. In effect, Grand Valley Lakes, Inc. recognized its liability and pre-paid it by the expenditure of time, effort and money in restoration. This is sufficient to remove this case from the application of the general rule. Surely, had Grand Valley Lakes not made the restoration and the landowner had restored at her own expense, there would be a predicate of actual damages and an award of punitive damages would be soundly based. In legal effect, we see no difference.

We hold that there was a proper predicate under the facts of this case for an award of punitive damages.

III.

There is proof in the record from which the jury might have found, as it obviously did, that Grand Valley Lakes ran rough-shod over rights of this landowner— that its acts were in knowing, wilful and deliberate disregard of her property rights and that Grand Valley should therefore pay punitive damages.

It is established law that an award of punitive damages lies within the discretion of the trier of facts. Bryson v. Bramlett, 204 Tenn. 347, 321 S.W.2d 555 (1958); Lichter v. Fulcher, 22 Tenn.App. 670, 125 S.W.2d 501 (1938). See also Hilliard v. Williams, 516 F.2d 1344 (6th Cir. 1975). The jury did not abuse its discretion in this case.

We therefore affirm the award of punitive damages.

The judgment of the Court of Appeals is

Reversed.

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


author: FONES, Justice.

text:
    MEMPHIS RETAIL LIQUOR DEALERS’ ASSOCIATION, INC., et al., Petitioners, v. CITY OF MEMPHIS et al. Respondents.
    Supreme Court of Tennessee, Western Division.
    Feb. 21, 1977.
    George T. Lewis, Jr, Lewis, McKee & Hall, Memphis, for petitioners.
    Ross B. Clark, II, Laughlin, Halle, Regan, Clark & Gibson, Memphis, for respondents.
   OPINION

FONES, Justice.

Plaintiffs, an unincorporated association of retail liquor dealers, brought this action for declaratory judgment challenging the imposition of a municipal inspection fee and/or privilege taxes. Their contentions are that the inspection fee contravenes the Export-Import Clause, Article 1, Section 10, Clause 2, of the United States Constitution, that it was repealed by implication by a later privilege tax, that if it was not repealed by the later tax, that the privilege tax cannot be applied and lastly that the State has preempted the field of inspections by virtue of a wholesale liquor sales tax act.

Both the Chancellor and Court of Appeals rejected all arguments and found the fee and privilege tax to be valid.

T.C.A. § 57-165, passed by the legislature in 1968, allows municipalities with populations over sixty thousand (60,000) to impose by ordinance an inspection fee on “licensed retailers of alcoholic beverages located within said municipality.” The fee is to be no more than five (5%) percent of the wholesale price of alcoholic beverages supplied by a wholesaler. T.C.A. § 57-166 provides that the fee will be collected by the wholesaler “at the time retailer makes payment for the delivery of the alcoholic beverages.” T.C.A. § 57-168 further provides:

“Fee to be exclusive. — The inspection fee provided for herein shall be in lieu of all other gross receipt or inspection fees imposed upon wholesalers or retailers of alcoholic beverages by municipalities and no other additional or similar fees shall be imposed by ordinance. . . . ”

Pursuant to the preceding granted authority, the City of Memphis passed Ordinance No. 478 which implemented the five (5%) percent inspection fee.

In 1972, the legislature passed T.C.A. § 67-5801, et seq., which provided for the collection of certain privilege taxes. The tax specifically included alcoholic beverages and its retail levy on such beverages is one-tenth (Vio) of one percent (1%) of all retail sales. T.C.A. §§ 67-5805 and 5806. T.C.A. § 67-5801 provides, in part:

“. . . It is the legislative intent that the taxes imposed by this chapter shall be in lieu of any or all ad valorem taxes on the inventories of merchandise held for sale or exchange by persons taxable under this chapter . . . .”

Plaintiffs first contend that the inspection fee violates the Export-Import clause of the federal constitution. They argue that the fee at times falls to rest on wholesalers who are in actuality importers of foreign goods. Mister Accardi, a Memphis wholesaler of alcoholic beverages, testified that the inspection fee is paid on wines and liquors imported from various countries and shipped directly to his wholesale house in Memphis. However, he acknowledged that the fees were not collected until after retailers had paid for their wholesale purchases.

In Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 L.Ed.2d 362 (1964) the United States Supreme Court examined carefully what types of imposts could be levied on imported liquor. The case involved a Kentucky tax of ten cents on any distilled spirits coming into that state from points without. The tax resulted in Beam having to pay ten cents on each gallon of whiskey imported from Scotland. The Supreme Court held:

“The tax here in question is clearly of a kind prohibited by the Export-Import Clause ... as this Court stated almost a century ago . . . ‘the goods imported do not lose their character as imports . . . until they have passed from the control of the importer or been broken up by him from their original cases.’ ” 377 U.S. at 344, 84 S.Ct. at 1248 (Quoting Low v. Austin, 13 Wall. 29, 20 L.Ed. 517.

The distinction between Beam and the present case is evident. The tax is never levied upon the wholesaler under § 57 — 165, because it is paid only after the retailers have purchased and paid for the beverages from the wholesaler. Thus, unlike the wholesaler in Beam, the goods while not necessarily physically broken up have “passed from his control.” We, therefore, find no violation of the export-import clause in the municipal inspection fee.

Before proceeding to the remainder of plaintiffs’ contentions, we must first determine whether or not the inspection fee is actually what it purports to be, or is in reality a tax. In Tennessee, taxes are distinguished from fees by the objectives for which they are imposed. If the imposition is primarily for the purpose of raising revenue, it is a tax; if its purpose is for the regulation of some activity under the police power of the governing authority, it is a fee. City of Chattanooga v. Veatch, 202 Tenn. 338, 304 S.W.2d 326 (1956); Wright v. Town of Camden, 195 Tenn. 295, 259 S.W.2d 529 (1953); S. E. Greyhound Lines v. Knoxville, 181 Tenn. 622, 184 S.W.2d 4 (1944).

The evidence shows that in fiscal year 1974, the City of Memphis collected $1,678,-041.45 from the inspection fee. The total appropriation for the city commission charged with the municipal inspections of sales of alcoholic beverages was only $35,-000.00 for the same year.

In City of Chattanooga v. Veatch, supra, this Court held that the amount of revenue raised did not convert a licensing fee into a tax:

“It is no objection to a regulatory license that it produces more income than is required for its administration and enforcement.” 202 Tenn. at 340, 304 S.W.2d at 327.

Plaintiffs insist that the bounds of this rationale is exceeded because the revenue generated is two hundred (200) times the cost of regulation. This argument might be valid if the activity regulated was anything other than the liquor business.

It is defendants’ position that alcoholic beverages are a special activity and the fees imposed are actually part of the regulation. This theory stems from an old opinion of the United States Supreme Court, Phillips v. City of Mobile, 208 U.S. 472, 28 S.Ct. 370, 52 L.Ed. 578 (1908). The case involved fees levied by Mobile on liquor coming from outside the state. In finding a licensing fee to be a fee and not a tax on interstate commerce, the Supreme Court held that the • amount of revenue raised did not change the character of the fee because of the nature of the activity regulated.

“The sale of liquors is confessedly a subject of police regulation. Such sale may be absolutely prohibited, or the business may be controlled and regulated by the imposition of license taxes, by which those only who obtain licenses are permitted to engage in it. Taxation is frequently the very best and most practical means of regulating this kind of business.” 208 U.S. at 480, 28 S.Ct. at 372.

This rationale was also utilized in a Supreme Court of Illinois case which again found a liquor license fee not to be a tax although it raised considerable revenue.

“It is true, as a general proposition that a regulatory license fee must bear ‘some reasonable relation’ to the expenses involved in the supervision and inspection of the licensed business, (citations omitted). But this general proposition ‘does not apply where the license charge is imposed on those occupations which, while they are tolerated, are recognized as being hurtful to public morals, productive of disorder, or injurious to the public, such as the liquor traffic’ . . . the amount of the license fee may itself have a permissible regulatory effect.” Lalumio v. Fasseas, 21 Ill.2d 135, 171 N.E.2d 43 at 44 (1960).

Most, if not all jurisdictions in the United States hold that the liquor traffic is subject to strict supervision or prohibition because it is potentially if not actually dangerous as harmful to the public health, morality and welfare. This power resides in the legislature and pursuant thereto, municipalities may be authorized to regulate and supervise. Barnes v. City of Dayton, 216 Tenn. 400, 392 S.W.2d 813 (1965). The legislature has authorized municipalities to enact an inspection fee, not exceeding five (5%) percent of the wholesale price of alcoholic beverages, with no requirement that the fee bear any relationship to the cost of the inspection, direct or indirect. In short, the ordinance enacted by defendants is within the authority granted to them by the legislature acting within its power to supervise and regulate the liquor business.

Since we find the licensing fee is not a tax, plaintiffs’ contention that § 67-5801 repeals by implication § 57-165 is without merit. Section 67-5801 is to be the exclusive ad valorem tax and is not in lieu of inspection fees.

Plaintiffs further argue that § 57-168 prevents the privilege tax from being collected because it also purports to be exclusive. A similar argument was made in Home Insurance Company v. Taxing District, 72 Tenn. 644 (1880). This Court held that acts which created taxes or fees were not contractual in nature and did not limit subsequent legislatures from changing them.

“The argument on behalf of the companies is that the Act of 1879, to be operative in the levying of additional taxes on them, must be held to repeal the words, ‘which shall be in lieu of all other taxes’ of the Act of 1875, and is to that extent, unconstitutional, because it neither recites in its caption or otherwise the title or substance of the law repealed.
The words relied on, as we have seen, do not amount to a contract, nor limit the power of subsequent Legislatures. They should be read as if the clause was written thus: ‘which shall be in lieu of all other taxes until the Legislature imposes other taxes.’ For that is what in legal effect they mean. In this view, nothing was repealed by the subsequent legislation, the clause in controversy being mere surplusage, and both acts remaining in full force.” 72 Tenn. at 647.

We find that language controlling in this case.

Plaintiffs’ final challenge of the municipal inspection fee is based on state preemption. They assert that T.C.A. § 57-706, which imposes a tax on wholesale sales for use by the alcoholic beverage commission, in some manner pre-empts the municipal inspection of retail sales under § 57-165. The two statutes are directed toward different areas of liquor traffic; § 57-706 is a provision dealing with wholesalers solely, while § 57 — 165 deals only with retailers. The argument that the former somehow pre-empts the latter is groundless.

Affirmed.

Costs are adjudged against plaintiffs.

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


author: CARNEY, Presiding Judge. CARNEY, Presiding Judge.

text:
    HENRY COUNTY, Tennessee, et al., Plaintiffs-Appellants, v. Ernie B. SUMMERS et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    June 2, 1976.
    Rehearing Denied July 1, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Richard L. Dunlap, III, Dunlap, Dunlap & Hessing, Paris, for appellants.
    Julian P. Guinn, Guinn & Hawley, Paris, for appellees.
   CARNEY, Presiding Judge.

Plaintiffs Henry County, Tennessee, and sixteen members of the Henry County Quarterly Court, all residents of Henry County, Tennessee, brought suit to enjoin the Defendants, Ernie B. Summers and wife, and Russwood Shores, Inc., from completing a residence which encroached upon a road hereinafter designated as Road B, running through property in the Kentucky Lake area being developed by the Defendant-Appellee, Russwood Shores, Inc. Plaintiffs prayed that the road be adjudged a public road; that construction be halted; that the unfinished house be removed from the road.

The Defendants, Ernie B. Summers and wife, purchasers of Lot 212 on which the residence was being constructed by the Defendant, Russwood Shores, Inc., developer, and Russwood Shores, Inc. denied that the road in question was a public county road but averred that if the road had ever been a public road, it was properly closed by the Henry County Highway Commission in 1971. This suit was filed on September 5, 1974.

His Honor the Chancellor found that the disputed road terminating at Little Sulphur Creek Boat Dock on Kentucky Lake had never been a public road. He also held that if the road was a public road, it was legally closed by the Henry County Road Commission in 1971. He dismissed Plaintiffs’ suit and Plaintiffs have appealed and assigned error.

First, we notice the motion by Ap-pellees to strike the Bill of Exceptions because it was not filed within the time allowed by the Chancellor. On February 20, 1975, the Chancellor signed and entered an order overruling the Plaintiffs’ motion for new trial, granting the Plaintiffs an appeal, and allowing Plaintiffs thirty days within which to prepare their Bill of Exceptions. Also, on February 20, 1975, there was filed for entry an order signed by the Chancellor allowing the Plaintiffs sixty days additional time within which to file a Bill of Exceptions. This order stated that the total of 90 days would run from February 6, 1975. On May 14, 1975, the Chancellor entered an order reciting that the order granting sixty additional days for filing the Bill of Exceptions inadvertently and through clerical error stated that the ninety days ran from February 6, 1975. It was ordered that the period for filing the Bill of Exceptions should be computed from the date of final judgment or February 20,1975. The Bill of Exceptions was lodged with the Clerk and Master within ninety days from February 20, 1975, but more than ninety days after February 6, 1975. Tennessee Rules of Civil Procedure 60.01 authorizes the Trial Court to correct clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission, at any time before the ease is docketed in the appellate court. After the appeal has been docketed in the appellate court, mistakes may be corrected by the Trial Court only with leave of the appellate court. On the authority of Chambers v. Holland, (Tenn.App.M.S.1975), 524 S.W.2d 941, and Jerkins v. McKinney, (Tenn.1976), 533 S.W.2d 275, we hold that the Bill of Exceptions was timely filed and the motion to strike is respectfully overruled.

The Plaintiffs’ assignments of error are as follows:

“1. That His Honor, the Trial Court, was manifestly in error in finding that the Little Sulphur Boat Dock Access Road was never a public road.
2. That His Honor, the Trial Court, was manifestly in error in finding that the Henry County authorities, by accepting and adopting the plat of streets and roadways of Russwood Shores, Inc., closed the western section of Little Sul-phur Boat Dock Access Road.
3. That His Honor, the Trial Court, was manifestly in error in finding that the Henry County authorities, by accepting and adopting the plat of streets and roadways of Russwood Shores, Inc., closed the eastern section of Little Sul-phur Boat Dock Access Road.”

The Russwood Shores Subdivision property extends from the Antioch Church Road eastward to Kentucky Lake. All of the property involved in this litigation was owned by the Tennessee Valley Authority until 1959 when it was declared surplus and sold to Mr. and Mrs. E. C. Marsh. As early as 1945 there had been a one-lane access road running eastward from Antioch Church Road through the undeveloped property now known as Russwood Shores to the Little Sulphur Creek Boat Dock. The Boat Dock was located on TVA property at the edge of Kentucky Lake. The total length of the road appears from the plat to have been about 2,750 feet. At a point about 700 feet from the Boat Dock, the access road forked. The left fork known as Fork B in this record ran on slightly higher ground for about 475 feet and rejoined Fork A about 225 feet south of the Boat Dock. During periods of high water, portions of Fork A are covered and become impassable because of the high water. When TVA sold the property to Marsh in 1959, it was sold with the restriction, “No public access.” E. C. Marsh and wife sold the undeveloped property to Charles F. Russell and wife, Marsha N. Russell, on July 1, 1968. From 1959 to 1971 fishermen continued to use the access road, both Forks A and B.

On March 31,1971, Charles F. Russell and wife, Marsha N. Russell, filed of record in the Register’s office of Henry County, Tennessee, plat of Russwood Shores Unit No. 1 containing 80.626 acres divided into 212 lots extending all the way from Antioch Church Road eastward to Kentucky Lake. The plat was approved by the Henry County Health Officer, the Henry County Road Supervisor, and the Chairman of the Henry County Planning Commission.

The old Sulphur Creek Boat Dock access road leading from Antioch Church Road to Kentucky Lake was incorporated into the new subdivision plat in its entirety except in two respects: (1) At the western terminus at Antioch Church Road for a distance of 280 feet the old one-lane road was closed, and two 50-foot roads were substituted in its place. (2) At the eastern terminus, where the access road formerly forked into A and B, Pork B was closed and a third fork, C, was run to the left, higher up the hill in a circular direction about 900 feet to Little Sulphur Creek Boat Dock ramp connecting with the old access road beyond the junction of old Fork A and B. The developers Russell and wife offered deeds to Henry County, Tennessee, to all of the roads contained within the subdivision. The Henry County Highway Commission at the regular meeting on June 25, 1971, accepted the deeds from Russell and wife on behalf of Henry County.

About half of the new access road is 50 feet wide and the remainder is a minimum of 30 feet wide. This suit seeks only to reopen the closed 450-foot segment, Fork B.

There was conflicting testimony before the Chancellor as to whether or not the County maintained Fork B and as to how much, if any, work was done by the County Highway Commission on Fork B. There was testimony that Fork A was the original access road leading to the Little Sulphur Creek Boat Dock and that Fork B was a secondary roadway used by hunters and fishermen as a cutoff when Fork A was under water.

We hold that the evidence does not preponderate against the finding of the Chancellor that the Little Sulphur Creek Boat Dock road never became a public road. The sale by TVA with the condition, “No public access” negates any implied dedication and there is no proof of 20 years prescriptive user.

“Unless a passageway has been created a public way in some manner known to the law, such as by act of the public authorities, or the express dedication by the owner, or an implied dedication by means of the use by the public and acceptance by them with the intention of the owner that the use become public, or by adverse user for a period of 20 years continuously creating a prescriptive right, it is not a public way.” Standard Life Insurance Company v. Hughes, (1958), 203 Tenn. 636, 315 S.W.2d 239, at page 242.

We turn now to the assignments of error assailing the finding of the Court that if, in fact, the Little Sulphur Creek Boat Dock had been a public road prior to 1971, the two portions or strips involved in this litigation were legally closed by the Henry County Highway Commission. The Henry County Road Commission was created under Chapter 620, Private Acts of 1933. However, its authority to open, close, change, or create a system of roads and bridges gives it no broader authority to open or close roads than is given under the general statute, T.C.A. Section 54-901, et seq. Paschall v. Valentine, (W.S.1958), 45 Tenn.App. 131, 321 S.W.2d 568.

T.C.A. Sections 54-905 and 54-906 provide as follows:

“54-905. Changing or closing roads— Application by petition. — All applications to open, change, or close a road shall be made by written petition, signed by the applicant, to the commissioner of the district through which the road runs or is asked to be located, specifying in particular the changes or action asked; or, if the road extends into two (2) or more districts, or is the dividing line between districts, then to the commissioners of said districts.”
“54-906. Notice to interested parties of action to open or close. — No road shall be opened, changed, or closed, without giving at least five (5) days’ notice to all parties interested of the time said road or roads are to be opened, changed, or closed, and a surveyor or civil engineer may be employed, if necessary, to locate the same. Landowners and those controlling land touched by the proposed highway shall be deemed interested parties.”

The members of the Henry County Road Commission admitted that no effort was made to comply with T.C.A. Sections 54-905 and 54-906.

There is no proof that any of the public officials of Henry County, Tennessee, especially the Road Commission, the County Health Officer, the Chairman of the Henry County Planning Commission, and the County Attorney, all of whom approved the subdivision, acted in bad faith.

The exit at the western end of the road into the Antioch Church Road was narrow and dangerous. Replacement by two new wider, safer roads inured to the benefit of everyone. The opening of Pork C at the eastern end of the road gave a wider all-weather access to the Boat Dock.

Mr. and Mrs. Russell, the developers owned all the property adjoining the closed segments of the road. There is no proof of any prejudice to any citizen or public official of Henry County, Tennessee, resulting from the closing of either of the two disputed strips of roadway. Access to the boat dock for all the citizens is greatly improved by the closing of the two strips and the substitution of better roads in their place and stead. The Defendant Developers have not been unduly enriched by the closing of the two strips of roads nor have they acted capriciously and in bad faith. To order these Defendants to destroy the partially completed residence and reopen Fork B would result in great financial loss to the Defendants. Several lots in the subdivision would be rendered completely useless. A mandatory injunction would result in no benefit whatsoever to the Plaintiffs or to the residents of Henry County, Tennessee, except the satisfaction of some personal grudge or political animosity not shown in the record. It appears highly unlikely that any of the traveling public would use the narrow one-lane section if reopened because Forks A and C are much wider and furnish far better access to the boat dock. A court of equity will not issue a mandatory injunction to enforce a penalty or work an injustice upon a defendant. King v. Elrod, (1953), 196 Tenn. 378, 268 S.W.2d 103; Gibson’s Suits in Chancery, 5th Edition, Sections 51 and 871.

The cases of Collins v. Thomas, (Tenn.App.W.S.1973), 495 S.W.2d 201, and Blake v. Skelton, 5 Tenn.App. 539, relied upon by the Appellants are not applicable to the facts of the instant case.

It, therefore, becomes immaterial whether the two strips of roadway were legally closed by the Henry County Highway Commission. Assignments of error 2 and 3 are pretermitted.

The judgment of the lower Court is affirmed at the cost of the Appellants.

MATHERNE and NEARN, JJ., concur.

PETITION TO REHEAR DENIED

CARNEY, Presiding Judge.

On June 2, 1976, this Court announced an opinion in this cause affirming the judgment of the lower Court. The Appellants have filed a Petition to Rehear.

First, the Appellants insist that under the authority of Cole v. Dych, (Tenn.1976), 535 S.W.2d 315, this Court was in error in affirming the decision of the lower Court that there had not been a dedication of Fork B of the Little Sulphur Creek Boat Dock access road. It is true that in Cole v. Dych both the lower Courts and the Supreme Court found that the road in question was, in fact, a public road. In the ease at bar, TVA owned the land, maintained the boat dock, and later sold the land with the restriction “No access road.” The new owners closed Fork B, kept open and dedicated Fork A and opened and dedicated a new all-weather Fork C to the Boat Dock.

These facts compel this Court to find that there was no dedication, express or implied, by TVA of Fork B leading to the boat dock across TVA’s property and that the use of Fork B as an alternative road to the Boat Dock was by permission of TVA. The first ground of the Petition to Rehear is, therefore, respectfully overruled.

Next, our attention is called to- the fact that the 250-foot strip on the western end of the Boat Dock access road leading from the Antioch Church Road was admittedly a public road and that the road had not been closed by the Henry County Road Commission in strict compliance with T.C.A. Sections 54-905 and 54-906. Since there is no proof that any of the Plaintiffs or any other person entering or leaving Russwood Shores Subdivision by way of the Antioch Church Road is inconvenienced in the slightest by the closing of the strip and the substitution of two much safer roads, and since there is no proof that the Defendants have acted illegally or in bad faith, we adhere to our former opinion that we, as a Court of equity, should not issue a mandatory injunction to work a financial hardship upon the Defendants.

The Petition to Rehear is respectfully overruled at the cost of the Plaintiffs.

MATHERNE and NEARN, JJ., concur.