text:
    Thelma S. BUNCH and Charles Bunch, Plaintiffs-Respondents, v. James V. McMILLIAN and Empiregas Inc., of Cabool, a corporation, Defendants-Appellants.
    No. 10309.
    Missouri Court of Appeals, Springfield District.
    July 7, 1978.

      Rich D. Moore, Moore & Brill, West Plains, for defendants-appellants.
    No appearance, for plaintiffs-respondents.
    Before STONE, P. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This action arises out of a collision between a Ford automobile driven by plaintiff Thelma Bunch and a Chevrolet truck operated by James McMillian in the course of his employment for defendant Empiregas Inc., of Cabool. The jury awarded Thelma $1,200 on her claim for personal injuries and awarded her husband, plaintiff Charles Bunch, $100 on his derivative claim. Defendant appeals.

Defendant asserts that the verdict-directing instruction given for each plaintiff was erroneous. Each of the two verdict-directors submitted, in the disjunctive, three assignments of negligence on the part of defendant’s driver McMillian. One of those assignments was that McMillian “failed to keep a careful lookout.” The claim of error is that the evidence was insufficient to support the lookout submission. Defendant does not claim that the alternative submissions lacked evidentiary support. Defendant’s point is well taken.

When a verdict-directing instruction submits in the disjunctive two or more assignments of negligence, the instruction is erroneous unless the evidence is sufficient to support all of the assignments. Shelton v. Bruner, 449 S.W.2d 673, 676[1] (Mo.App.1969). A plaintiff is entitled to the benefit of the most favorable combination of facts which reasonably may be inferred from all of the evidence so long as such facts do not conflict with plaintiff’s basic theory of the case or with his own judicial admissions. Williams v. Christian, 520 S.W.2d 139, 141[3] (Mo.App.1975); Hansmann v. Rupkey, 428 S.W.2d 952, 954 (Mo.App.1968).

Negligence consisting of a driver’s failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken “effective precautionary action.” Heberer v. Duncan, 449 S.W.2d 561, 563[3] (Mo. banc 1970). A lookout instruction submits failure to see and failure to avoid injury “by ‘any means supported by the evidence.’ ” Lovelace v. Reed, 486 S.W.2d 417, 419 (Mo.1972). Although a lookout instruction need not hypothesize the means by which the driver, charged with failing to keep a careful lookout, could have avoided the collision, the evidence must support a finding that he possessed and failed to use such means. Lovelace, supra. Miller v. St. Louis Public Service Company, 389 S.W.2d 769, 772[3, 4] (Mo.1965).

“Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged [with failure to keep a careful lookout] to take effective action in avoidance.” Zalle v. Underwood, 372 S.W.2d 98, 102[2] (Mo.1963). Plaintiffs had the burden of showing a causal connection between the submitted negligence, i. e., failure to keep a lookout, and the injury sustained, Shelton, supra, at p. 680, and if the evidence leaves “the element of causal connection in the nebulous twilight of speculation, conjecture and surmise,” Shelton, supra, at p. 680, the burden was not met and the judgment cannot stand.

Rarely does a plaintiff have affirmative evidence that the defendant was not keeping a proper lookout, Welch v. Sheley, 443 S.W.2d 110, 118 (Mo.1969), and the jury has the right to disbelieve entirely the testimony of a driver that he was looking vigilantly or that he saw another vehicle at a certain distance. Welch, supra, at p. 118.

The collision occurred at approximately 11:20 a. m. on March 6, 1973, on Highway 76, an east-west two-lane highway, approximately one mile west of Willow Springs. The only witnesses to the collision and the events preceding it were Thelma Bunch, who testified on behalf of herself and her co-plaintiff, and McMillian, who testified on behalf of defendant.

McMillian was the driver of a gas truck. He intended to make a delivery at the home Of Duane Owens which was located on the south side of Highway 76. He intended to back into the Owens driveway which he had approached from the east. The driveway ran south from the south edge of the highway. The impact, according to the testimony of McMillian, occurred 25 or 30 feet west of the driveway. Although Thelma’s testimony on the point is somewhat vague, it seems to be to the effect that the impact occurred “close to the driveway.”

Plaintiff’s evidence showed that there was a hill approximately 170 feet west of the point of impact. When the Ford, which was eastbound, reached the top of the hill, each vehicle became visible to the operator of the other. There was no evidence that the range of visibility exceeded 170 feet for either driver.

Thelma testified that she was driving the Ford at a speed of approximately 60 miles per hour. When she was coming over the hill, “was at the top of it,” she saw the truck. She said that the truck was “across my lane and partway across the other lane” and it was facing north. She could not say whether the truck was moving or standing still. If it was moving, it was going so slow that she “couldn’t tell.” As soon as she saw the truck Thelma applied her brakes. She at all times remained in her righthand lane. After she applied her brakes she did not lose control of the Ford but “it was impossible for me to stop before the impact.” Thelma said that the front of the Ford collided with the “left side of the truck toward the rear.” At the time of the impact the truck was still heading north. Following the impact the Ford continued east-wardly and ended up in a ditch on the south side of the road.

In conjunction with Thelma’s testimony, plaintiffs introduced a diagram of the scene. The diagram does not bear a scale. Thelma did not know whether it was to scale and there was no testimony that it was to scale. On the diagram Thelma placed a mark indicating that the point of impact was approximately in the middle of the eastbound lane of the highway and near the west edge of the Owens driveway. The weather was overcast and “kind of misty.” It had rained earlier that day but there was no testimony with respect to whether the highway was wet or dry.

In general the testimony of McMillian was in conflict with that of Thelma. McMillian testified that he stopped his truck west of the Owens driveway in the westbound lane. The truck was facing west. While the truck was in its stopped position, according to McMillian, the Ford driven by Thelma came over the hill. He said that the Ford was “coming very fast.” Using plaintiffs’ diagram McMillian traced the movement of the Ford from the moment he first saw it until the impact. That tracing shows that a portion of the Ford entered the westbound lane twice, the first time at some unstated distance west of the impact and the second time at the impact itself. McMillian stated that the impact occurred between the left front portion of the Ford and the “rear dual tire” of the truck. Using the diagram, McMillian made a mark showing that the impact occurred in the westbound lane but near the center of the highway. It was McMillian’s testimony that his truck was stopped before he saw the Ford come over the hill and that it remained stopped facing west, in the westbound lane, until the moment of impact.

The foregoing evidence is insufficient to support the lookout submission. The only specific evidence with respect to the speed of the Ford was that it was going 60 miles per hour when it first came into McMillian’s view. Unless a different time affirmatively appears, the court will take judicial notice that the time for a driver to react to “a situation demanding some action” is ¾ of a second. Vietmeier v. Voss, 246 S.W.2d 785, 788[5] (Mo.1952). A vehicle traveling 60 miles per hour covers 66 feet in ¾ of a second. Accordingly Thelma would have had no more than 104 feet in which to maneuver the Ford in an attempt to avoid the collision, assuming that she saw the truck, as she said she did, as soon as it was visible to her. Her testimony was that she did apply her brakes but that it was impossible for her to avoid colliding with the truck.

Although there was no evidence that McMillian honked his horn (or even that he had a horn to honk) or took other means to warn Thelma of the presence of the truck, it is clear that a warning, had it been given, would not have imparted to Thelma any information which she did not already possess by reason of her own observation. It follows that any means by which McMillian could have avoided the collision would involve some movement of the truck.

The record is silent as to the speed of the Ford at the moment of impact. There was no showing of the time which elapsed between the moment the Ford first became visible to McMillian, whether or not he in fact saw it, and the moment of impact. Although Thelma testified that she applied her brakes, there was no showing of the extent, if any, to which her speed was thereby reduced. If there was no decrease in the speed of the Ford, the interval of 104 feet would have been traversed in 1.575 seconds. The time available to McMillian to have resorted to avoidance measures, after he himself had reacted to the situation, is not shown to have exceeded that amount.

The record is silent on certain factors which might have been material in determining whether McMillian possessed but failed to use means to avoid the collision after a careful lookout would have disclosed the approach of the Ford. There was no testimony as to the dimensions, equipment, or maneuvering capabilities of the gas truck. Neither side introduced photographs of the scene or of the vehicles. There was no showing of the width of the highway or the width of either of the two lanes. There was no showing of the width, character, or even the existence of a north or south shoulder. If, as Thelma thought was possible, the truck was moving, there was no showing whether it was moving north or south. If, as Thelma thought was possible, the truck was not in motion, there was no showing of the time it would take for it to attain any speed or to cover any distance in a turning movement or in a forward or backward movement.

According to Thelma the truck was facing north and she did not know whether or not it was in motion. The evidence fails to show how much room north of the front of the truck was available for a northerly movement of it. There was no showing that such a movement would have had the effect of permitting the Ford to have passed on the south side of the truck. Even if the evidence permits the inference that the Owens driveway extended to the south of the rear of the truck, there was no showing of the length of the truck nor how much of a southerly movement of the truck would have enabled the Ford to pass to the north of it. The evidence does not show what change in the location of the truck would have avoided the collision nor does it show the time, means or space available to McMillian to have effected such change. In fine the evidence did not contain any showing that McMillian, had he kept a careful lookout, could have seen the Ford “in time thereafter to have taken effective precautionary action.” Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo. banc 1970); Bolhofner v. Jones, 482 S.W.2d 80, 83 (Mo.App.1972).

The judgment is reversed and the cause remanded.

STONE, P. J., and TITUS, J., concur.


source: Caselaw Access Project

author: BILLINGS, Chief Judge. FLANIGAN, Judge,

license: Public Domain

text:
    LAKELAND R-III SCHOOL DISTRICT, Plaintiff-Appellant, v. OSCEOLA INDEPENDENT SCHOOL DISTRICT, Defendant-Respondent.
    No. 10385.
    Missouri Court of Appeals, Springfield District.
    July 10, 1978.

      Dan K. Purdy, Osceola, for plaintiff-appellant.
    Kerry D. Douglas, Douglas & Douglas, Bolivar, for defendant-respondent.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

Action by the Lakeland R-III School District, formerly the Lowry City C-4 School District, against the Osceola Independent School District to recover tuition for three students allegedly assigned to the suing district by the St. Clair County Court pursuant to § 167.121 and § 179.220 RSMo 1969, for three school years from 1972-75. The trial court entered judgment for defendant, and the Lakeland School District appealed.

The facts, as developed by the evidence, are that a Mrs. Bourland, a resident of the Osceola Independent School District, applied to the St. Clair County Court for the assignment of her three children to the Lowry City School District. The only evidence presented to the trial court showing the action taken by the county court on the application is a minute entry dated August 28, 1972.

“Upon application of Mrs. Bourland for the assignment of her three children from the Lowry School to the Osceola School the following communication was made to the superintendents of the Osceola and Lowry City Schools;
“It is agreeable with the County Court for the three Blackwell children, Scheme, Roger and Debra, to attend the Lowry City School rather than the Osceola School.
“There should be an agreement between the schools as to any fee to be paid either by the parents or the school.
“It is advisable that you contact your local State Supervisor of schools to be correct on this matter in order to receive your proper state aid.
“/s/
“Travis Payne, Jr.,
“Presiding Judge.”

The county court, in an entry of July 23, 1973, “confirmed” the 1972 entry. This entry provided, “Herbert Sisco, Superintendent, Lowry City School. In re transfer of Blackwell children from Osceola School District. Action of the County Court of August 28, 1972. Confirmed by present Court.” No action was taken by the county court concerning the assignment of the Blackwell children to the Lowry City School for the 1974-1975 school year.

The Blackwell children attended the Low-ry City School for three school years from 1972 through 1975. After each year, the superintendent of the Lowry City School certified the children’s attendance to the Osceola School. Although demand was made for the tuition or costs of instruction, the Osceola School District declined to pay, and the plaintiff district brought this action.

If a school in another district is more accessible a student may be assigned to the other district under § 167.121 RSMo 1969. By virtue of § 179.220(7) RSMo 1969, the county court was given authority to assign students. The statute provides, “In any circumstance in which ... [a] duty [must be] performed, which would have been performed by the county superintendent if the office had not been abolished, the county court . . . shall make the necessary arrangements ... on its order . to perform the duty.” The issue presented in this appeal is whether the minute entries of the St. Clair County Court were orders assigning the Blackwell children to plaintiff district, thereby obligating defendant to pay the tuition.

The plain and ordinary meaning of the word “order” is a direction or command authoritatively given. G_ v. Souder, 305 S.W.2d 883 (Mo.App.1957); Black’s Law Dictionary 4th ed. While administrative orders are to be liberally construed in order to make them operative if possible, State ex rel. Gehrs v. Public Service Commission of Missouri, 232 Mo.App. 1018, 114 S.W.2d 161 (1938), there is no language in the minute entries of the county court directing or commanding the assignment of the Blackwell children to the plaintiff school district.

When viewed in its entirety, the August 28, 1972, minute entry indicates the St. Clair County Court did not envision an assignment of students under § 167.121 RSMo 1969. Had the transfer been pursuant to that statute, the Osceola district would have been obligated automatically by statute to pay the tuition of the transferred students. The minute entry does not impose that obligation on the defendant district. Instead the court suggests the schools make an agreement on the fee to be paid and indicates that the parents might be required to pay tuition costs.

The July 23,1973 minute likewise fails to direct the assignment of the children to Lowry City School. It merely proposes to “confirm” the action of the county court under the August 28,1972 entry. Since the prior entry failed to order a transfer a subsequent confirmation would be ineffective to order a transfer. No assignment of the Blackwell children to plaintiff district resulted from these minute entries, and it is not entitled to recover tuition from defendant for the 1972-73 and 1973-74 school years.

The authority to assign pupils to other school districts was vested in the county board of education under an amendment to § 167.121, which became effective July 1, 1974. See § 167.121 RSMo Supp.1975. The board of education took no action to assign the Blackwell children to the plaintiff school, and the St. Clair County Court had no power to assign them for the 1974-75 school year.

Assuming the county court had the authority to assign students, the evidence shows it did not exercise it. Further the original minute entry makes no mention of any application to subsequent school years. See School Dist. of Mexico, Mo. v. Maple Grove School Dist., 359 S.W.2d 743 (Mo.1962). The fact that the county court “confirmed” the August 28,1972 entry indicated the court felt that the first entry would not be effective to assign the students in future years. This coupled with the lack of action by the county board of education, resulted in no assignment of the Blackwell children for the 1974-1975 school year. The plaintiff district is, therefore, not entitled to recover for that year.

Judgment of the trial court is affirmed.

TITUS, J., concurs.

FLANIGAN, J., filed dissenting opinion.

FLANIGAN, Judge,

dissenting.

I respectfully dissent.

I agree with that portion of the majority opinion which denies plaintiff recovery for the 1974-1975 school year. The county court had no authority to make pupil assignments for that year. The amendment of § 167.121, which became effective on July 1, 1974, vested such authority in the county board of education.

With respect to the school years 1972-1973 and 1973-1974, it is my opinion that plaintiff, the receiving district, should recover the tuition of each of the pupils or the prorata cost of instruction, whichever is the lesser, as the statute commands.

I agree that the county court entry of August 28, 1972, is poorly drafted. As the trial court pointed out, its opening paragraph refers to an application for assignment “from the Lowry School to the Osceola School,” when in fact the requested assignment was from Osceola to Lowry. The trial court found that obvious clerical error to be insignificant and I agree with that view. Had the children been residents of the Lowry District, there would have been no occasion for their mother’s application for an assignment.

Long ago our supreme court pointed out that “orders of boards or courts administered by men not trained in the law must be construed not strictly but according to their intent.” Greenfield v. Petty, 346 Mo. 1186, 145 S.W.2d 367, 371[10] (1940). The holding of the majority is, it seems to me, inconsistent with that principle. The majority opinion gives no effect whatsoever to the entry of August 28,1972, or the “confirmation entry” of July 23, 1973. Surely the county court, by the making of those entries, intended to assign the three children to the Lowry District. The county court was not merely transmitting a neighborly communication evincing that the assignment was “agreeable” to the court.

It is clear from the entry of August 28, 1972, that Mrs. Bourland applied for the assignment of her three children. Giving the second paragraph of the entry of August 28, 1972, the liberal construction to which it is entitled, I find that the county court intended to, and did, sustain that application. Such action alone was sufficient to trigger the operation of § 167.121.

The statute did not require that the sending district or receiving district be given notice of the action of the county court. Red School Dist. No. 1 v. West Alton School Dist. No. 2,162 S.W.2d 305, 305[1] (Mo.App.1942). It appears from the record that the county court in fact notified the two school districts, the notice consisting of the last three paragraphs of the entry of August 28, 1972. This notice, gratuitously given, should not disturb the legal effect of what the county court had intended to accomplish and, in my opinion, did accomplish.

The last two paragraphs of the entry of August 28, 1972, should be disregarded as surplusage. Once the assignment was made, the statute imposed upon the sending district the obligation to pay the tuition of the pupils assigned, although the tuition may not exceed the prorata cost of instruction. The county court had no power to alter that statutory result.

The entry of August 28, 1972, refers to “any fee” but it does not refer to tuition. It may be that the county court, in using the term “any fee,” was referring to that type of fee recently discussed by our supreme court in Concerned Parents v. Caruthersville School District, 548 S.W.2d 554 (Mo. banc 1977). The court in that case, l.c. 562, distinguished such fees from the tuition referred to in § 167.121 and other statutes pertaining to tuition.

Under both the prior and the present form of § 167.121, the sending district is required to make payment, within the statutory limits, to the receiving district. In the case at bar the receiving district fully performed its role. The county court entries of August 28, 1972, and July 23, 1973, are, in my view, adequate to manifest the court’s intent. Careless draftsmanship should not deprive the receiving district of its statutory benefits.


author: HOGAN, Judge.

text:
    Jeffrey C. VAUGHAN, Appellant, v. COUNTY OF MISSISSIPPI, Missouri, Employer and Insurer, Respondent.
    No. 10853.
    Missouri Court of Appeals, Springfield District.
    July 11, 1978.
    Jeffrey C. Vaughan, Joslyn, Joslyn, Vaughan & Pruett, Charleston, for appellant.
    Edward C. Graham, Pros. Atty., Charleston, for respondent.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   HOGAN, Judge.

This is an action to enforce an attorney’s lien by execution and garnishment issued in aid thereof. Upon defendant’s motion, the trial court has quashed the execution and the plaintiff, a practicing attorney, has appealed.

Defendant Mississippi County, a county of the third class, has elected to accept the provisions of the Workmen’s Compensation Law as a self-insurer. On October 24, 1974 one Thurston B. Drummond, then a county employee, sustained fatal injuries in a com-pensable accident. On October 26,1976, the Division of Workmen’s Compensation made an award of death benefits to Drummond’s widow pursuant to the statute then codified as § 287.240, Laws of Mo.1974, pp. 861-863.

Extensive findings of fact and rulings of law were attached to the award. The findings of fact and rulings of law included an order apportioning the proceeds of a third-party recovery between the widow and the employer. The employer was credited with an advance payment of 279¾⅞ weeks of compensation and was held liable for payment of death benefits commencing March 2, 1980. The Division further found it was necessary for the claimant to obtain plaintiff’s services and that plaintiff was entitled to an attorney’s fee in the amount of $2,500. The award proper ordered immediate payment of $800 to the claimant as burial expenses, and further (1) ordered payment of weekly benefits to the claimant beginning March 2, 1980, and (2) allowed plaintiff’s fee in the amount of $2,500, “said fee [to] constitute a lien on said compensation.”

Commendably attempting to simplify the issues on appeal, the parties have filed an abbreviated or partial transcript of the record as authorized by Rule 81.12(b), V.A. M.R. The partial transcript indicates that no review of the Division’s award was sought; the award and findings were filed and recorded in the Circuit Court of Mississippi County on December 10, 1976. The clerk’s notation indicates that the award was recorded in a transcript judgment book, but the writ of execution issued January 5, 1977, before rendition of a judgment by the circuit court.

It must be borne in mind that this appeal comes to us on quashal of a fieri facias sued out of a circuit court. It is true that a final award of the Division is an adjudication of the rights of the parties as effective as the judgment of a court of law and constitutes an obligation in writing to pay money. Spradling v. Wackman Weided Ware Co., 239 Mo.App. 1195,1198-1199, 205 S.W.2d 290, 291[1][4] (1947). Ordinarily enforcement by execution should be unnecessary. However, a fi. fa. must be supported by a valid unsatisfied order, decree or judgment of a court. Woods v. Woods, 236 Mo.App. 855, 159 S.W.2d 320, 323[6] (1942). The Division itself is without authority to enforce an award; a judgment must be entered thereon. § 287.500, RSMo (1969). Because the record shows no such final judgment, we are without appellate jurisdiction. McCoy v. Simpson, 344 Mo. 215, 217, 125 S.W.2d 833, 834[2][3] (1939).

The submission in this court is set aside; the cause is remanded to the circuit court with alternative directions: (a) to enter judgment upon the award as of December 10, 1976, if no judgment was in fact then entered, or (b) to order the judgment made and entered supplied to this court, if a judgment was entered as required by § 287.500, RSMo (1969). If the judgment was entered but has been omitted by the parties, the appeal may be resubmitted upon supplementation of the abbreviated transcript, if the parties so desire. If no judgment was entered, a new execution must issue and further proceedings be had. It is so ordered.

All concur.


author: FLANIGAN, Judge.

text:
    Frank H. CHANDLER and Margaret Chandler, Plaintiffs-Appellants, v. Sam MARSHALL, Ed Terry, Scott Thomas, Trustees, and their Successors in Office of Grand United Order Odd Fellows Lodge No. 2048, and Lewis Martin and Vera Martin, if living, or if they or any one of them be dead, then their unknown heirs, consorts, devisees, donees, alienees, immediate, mesne, and remote, voluntary and involuntary grantees and their unknown spouses and unknown creditors, Defendants-Respondents.
    No. 10366.
    Missouri Court of Appeals, Springfield District.
    July 12, 1978.

      Abe R. Paul, Pineville, for plaintiffs-appellants.
    Walter Walker, Neosho, for defendants-respondents.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action to quiet title.

The land in dispute is Lot Five (5) in Block Twenty-eight (28) in Neosho City, now a part of the City of Neosho, Missouri. Plaintiffs Frank H. Chandler and Margaret Chandler, husband and wife, are the owners of Lot 6 which adjoins, and is located east of, Lot 5. Defendants Lewis Martin and Vera Martin, husband and wife, are the owners of Lot 4 which adjoins, and is located west of, Lot 5. Each of the three lots is 120 feet long and 30 feet wide. The longer sides of each lot lie generally north and south, although the northwest corner of each lot is somewhat west of its southwest corner. Each lot tilts slightly to the northwest.

Plaintiffs acquired record title to Lot 6 in 1974 by warranty deed from Stella Lakin. Stella, the mother of plaintiff Margaret Chandler, owned Lot 6 since 1952. The house on Lot 6, occupied by Stella during her ownership, encroaches upon Lot 5. The house faces generally north and the encroachment amounts to 9.85 feet. No other building is on Lot 5. Plaintiffs claim title to Lot 5 by adverse possession.

The last link in the chain of record title to Lot 5 is a warranty deed executed in 1911 by the then owner in favor of trustees of a defunct local lodge of a fraternal order.

Defendants Lewis Martin and Vera Martin also made claim to Lot 5 based on adverse possession.

The trial court, sitting without a jury, decreed that title to the east half of Lot 5 was in plaintiffs and that title to the west half of Lot 5 was in defendants Lewis Martin and Vera Martin. Plaintiffs appeal. The parties agree that the decree of the trial court with respect to the east half of Lot 5 was proper. On this appeal plaintiffs claim that the trial court erred in decreeing title to the west half of Lot 5 to be in defendants Martin.

The burden of proof was on plaintiffs as to each of the five elements of adverse possession. Slentz v. Cherokee Enterprises, Inc., 529 S.W.2d 495, 496[2] (Mo.App.1975). However, once the plaintiffs made a prima facie case on the issue of adverse possession, as the instant plaintiffs did, the burden of going ahead on that issue shifted to the defendants. Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 4[1] (Mo.1970).

Defendants’ evidence consisted solely of the testimony of defendant Martin. He conceded that he and his predecessors had made no use of the north half of the west half of Lot 5. He did not dispute the testimony of plaintiffs’ witnesses which supported plaintiffs’ claim to that north half. With respect to the south half of the west half of Lot 5, Martin testified to “just spotty” use by him and his predecessors. That use consisted of “backing a truck in there.” Martin testified that the last such use was a year before the trial, and the most recent use prior to that one was “about five years ago.”

The testimony of Martin in support of defendants’ claim of adverse possession with respect to the south half of the west half of Lot 5 was insufficient to establish that claim. Martin’s testimony failed to satisfy the elements of exclusivity and continuity for the statutory period. Moreover, “occasional entries, or temporary use or occupation, are insufficient to establish that actual possession which is necessary to manifest adverse possession.” Brown v. Evans, 182 S.W.2d 580, 588[10] (Mo.1944).

It would serve no useful purpose to recount the formidable evidence adduced by the plaintiffs nor the flimsy evidence adduced by defendants Martin. The testimony of plaintiffs’ witnesses, whom the trial court must have found credible in awarding plaintiffs title to the east half of Lot 5, was equally impressive with respect to the west half. A detailed review of the evidence and the law would have no precedential value. That portion of the judgment which decreed title in the west half of Lot 5 to be in defendants Lewis Martin and Vera Martin must be reversed.

The judgment is reversed and the cause remanded with directions to the trial court

to enter its judgment decreeing that the plaintiffs Frank H. Chandler and Margaret Chandler are the owners of Lot 5 in Block 28 in Neosho City, now a part of the City of Neosho.

All concur.


author: BROCK, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Petitioner, v. THOMPSON AND GREEN MACHINERY COMPANY, INC., Respondent.
    Supreme Court of Tennessee.
    March 29, 1978.
    Rehearing Denied July 24, 1978.

      Louis Farrell, Jr., David G. Gray, Nashville, for petitioner.
    Lewis B. Hollabaugh, Olin White, Manier, White, Herod, Hollabaugh & Smith, Nashville, for respondent; W. Harold Bigham, Gullett, Steele, Sanford & Robinson, Nashville, of counsel.
   OPINION

BROCK, Justice.

This is an action to recover rent from an alleged lessee and its surety. The claim of Thompson and Green Machinery Company, a dealer in heavy construction equipment, arises out of defaults by James F. Gregory, Inc., a highway contractor, in the payment of monthly installments due plaintiff on thirty items of road-building equipment under twenty-six written agreements, plus certain repairs and parts furnished by Thompson and Green to Gregory. The equipment was used on seven separate state highway contracts on which Gregory was the principal contractor and on three state highway contracts on which Gregory was the subcontractor. United States Fidelity and Guaranty Company gave its bond in statutory form on the obligation of the contractor as required by T.C.A. § 54-519 and on the seven contracts which Gregory held with the State. USF&G also executed a performance bond for Gregory on the three highway jobs for which he was the subcontractor.

Thompson and Green filed suit against Gregory and USF&G in the Chancery Court for the amounts allegedly due under the agreements. Gregory defended that the “rentals” were actually “sales” and counterclaimed for damages arising from the breach of an alleged novation between Thompson and Green and Gregory, i. e., Thompson and Green’s refusal to conduct an auction of the equipment as allegedly agreed, with the proceeds to be applied first to the remaining debt owed Thompson and Green with excess payable to Gregory as his “equity” in the equipment. Gregory subsequently amended his answer and counterclaim, alleging that he had returned the equipment to Thompson and Green pursuant to an agreement for its disposal by auction and that Thompson and Green had failed to sell or dispose of the equipment as required by Article 9 of the Uniform Commercial Code. However, the latter insistence was not made in this Court, and, therefore, is not before us for determination.

Each of the twenty-six agreements between Thompson and Green and Gregory is a form contract denominated “Associated Equipment Distributors Uniform Lease Contract.” Each contract provides that Thompson and Green “proposes to lease and does lease” the described item of equipment upon payment of a monthly rental of a fixed amount for a specified minimum term, ranging from three to fifteen months. Except for provisions allowing for the lessor’s repossession for failure to pay rent or other breach of the lease by the lessee, the contracts are renewable on a month to month basis by the lessee. The lessee thus had the right to terminate the agreement upon expiration of the specified minimum term or the right to extend the lease for a period equivalent to the asset’s useful life. Gregory testified that his only obligation under the contracts in issue was to pay the monthly rental for the minimum rental period and that he had no obligation to pay the purchase price of the equipment. At the end of the minimum rental period, Gregory could return the equipment and be liable only for the accrued rental.

Each contract also states the “total value,” exclusive of sales tax, of the equipment leased which was shown at trial to be the purchase price of the machinery in the event the lessee elected to purchase. No evidence as to the projected market value of the equipment was introduced. The contracts further obligate the lessee to keep the equipment insured and to pay all repair bills, taxes and other public charges and assessments on the equipment.

The contracts themselves contain no express option to purchase the equipment but proof of a collateral oral option to purchase was adduced at trial. USF&G’s evidence was that plaintiff orally agreed that all rentals paid would be credited against the purchase price and that when the aggregate rentals equalled the “total value” figure shown on the lease, defendant would have the option of receiving title upon payment of a small financing charge. Thompson and Green testified that it had an unwritten policy of extending an option to purchase to a lessee who had paid rentals on a given piece of equipment in an amount equal to the total value of the equipment, but insisted that the option was extended only if the lessee’s account were paid up and in good order.

USF&G conceded that if the equipment contracts were true leases, the unpaid rentals of equipment by a public contractor constituted “materials furnished” within the meaning of its statutory bond and that it would therefore be liable to plaintiff. USF&G insisted, however, as did Gregory, that the contracts in question, although leases in form, were not true leases and that the parties intended that the transactions create security interests in the equipment, liability for which was not covered under its bonds.

Alternatively, USF&G argued that Thompson and Green’s recovery should be diminished by: (1) $112,817.76 — representing claims of Thompson and Green against Gregory not timely filed as required by T.C.A. § 54-522, and (2) $71,071.59 — representing payments made by Gregory and applied by Thompson and Green to an account not covered under the terms of the surety’s bond which Thompson and Green should have applied to the secured debt.

The Chancellor determined that the equipment contracts were true leases and, thus, that Thompson and Green was entitled to recover its provable claims for unpaid rent and for services, parts and repairs rendered Gregory during the terms of the leases. The Chancellor dismissed Gregory’s counter-claim based upon the alleged novation, finding, as a matter of fact, that no contract to conduct an auction of the equipment was ever consummated between the parties. Refusing both arguments for diminution of plaintiff’s recovery against USF&G, the Chancellor entered judgment against both Gregory ($403,382.23 plus interest) and USF&G ($273,753.84).

Only USF&G appealed. The Court of Appeals affirmed the Chancellor in part, but did allow USF&G a credit for the $71,-071.59 applied by Thompson and Green to unsecured obligations of Gregory, thus reducing the judgment against USF&G to $202,682.25 plus interest.

Both parties filed petitions for certiorari. Finding no error by the Court of Appeals with regard to its allowance of the credit in favor of the surety, we granted only the petition of USF&G.

I

The primary significance, in this case, of the distinction to be drawn between a true lease and a conditional sale with a “lease” employed as a security device is to be found in our law requiring highway contractors to provide a surety bond “for the full and faithful performance of every part and stipulation of the contract, especially the payment for all materials furnished and for all labor employed in the contemplated work.” T.C.A. § 54-519. In Southern Construction Co. v. Halliburton, 149 Tenn. 319, 332, 258 S.W. 409, 413 (1924), the court noted that “[w]hile there are some differences, the rights of laborers and materialmen to recourse against the general contractor and his surety, under [the antecedent of T.C.A. § 54-519], are similar to the rights of such parties to a lien under our mechanic’s lien statutes.” See 17 Am.Jur.2d Contractors’ Bonds § 44 (1964).

Thus, in Southern Construction Co., supra, the Court disallowed a supplier’s claim for oil, automobile casings and tubes, finding insufficient evidence that the materials were “consumable in the use or intended to be consumed in the use” of the construction job. Noting that the statutory predecessor of T.C.A. § 54-519 provided for final acceptance of the contract only when the Highway Department was satisfied that all “materials used” by the contractor had been paid for, the Court reasoned that

“[i]t would be too broad a construction of this statute to fasten such a liability upon the general contractor and the surety for materials which the subcontractor purchased, which were not used up in the job, and remained the property of the subcontractor to be thereafter used by him in other work.” Southern Construction Co., supra, at 335, 258 S.W. at 414.

In Nicks v. W. C. Baird and Co., 165 Tenn. 89, 52 S.W .2d 147 (1932), the court considered the application of the bond required by the statutory precedent of T.C.A. § 54-519 to rental charges for a steam boiler used by a contractor in the construction of a state highway bridge. Identifying two purposes for the “materials consumed” requirement of the statute, the court stated:

“If the material furnished is not consumable in the use, it is furnished on the general credit of the contractor, and not merely in aid of the performance of the particular contract. And if on completion of the building or project the material, still possessing value, remains the property of the contractor, liability for its costs should be and is his liability alone . . . .” Id. at 94, 52 S.W.2d at 148.

Determining that neither of these reasons was present “when all that is purchased is the use of the material in the execution of the particular contract, under an agreement of hire or lease,” the court concluded that, in such case, “all that is purchased is consumed in the use, in aid of the contract, and, . . nothing is sought to be charged against the bond except the value of material furnished the contractor in the performance of his contract.” Id. The court consequently allowed the claim for rental payments against the surety company. Accord, Thompson and Green Machinery Co. v. M. P. Smith Construction Co., 44 Tenn.App. 26, 311 S.W.2d 614 (1957) (construing T.C.A. § 54-519).

Thus, rental payments for materials used by a contractor in the execution of a state highway contract are recoverable against his surety. Payments which consummate in the actual sale of the material to the contractor are not so recoverable.

II

The parties have assumed in this case that the UCC definition of a “security interest,” T.C.A. § 47-1-201(37) provides the controlling criterion for determining whether the transactions here involved are leases or are contracts of conditional sale. Many authorities construing and applying that definition are cited and discussed in the briefs. With this assumption, however, we respectfully disagree; that definition, in our opinion, is not applicable to this case.

The UCC has many provisions, especially in chapter 9 thereof, which apply to “security interests”; therefore, “security interest” is defined in § 1-201(37) for the purpose of identifying the transactions to which those provisions apply. In this case, however, we are not concerned with any provision of the Uniform Commercial Code regarding a “security interest”; instead, our concern is with liability under the contractor’s surety bonds which, in turn, depends upon whether the construction equipment was leased from the plaintiff or purchased from him. Our issue is whether the “property” or “title” in the various machines was to pass to Gregory. Under our cases, supra, that is the issue upon which liability turns. The UCC does not contain the criteria for making that determination. See 67 Am.Jur.2d Sales § 31 (1973). To find those criteria, we must turn to the common law. The UCC definitions, according to their terms, are to be applied only in interpreting and administering the Uniform Commercial Code; they are not intended to apply universally, Parkridge Hospital, Inc. v. Woods, Commissioner, Tenn., 561 S.W.2d 754 (1978), and they certainly do not apply in a case such as this in which no provision of the UCC is invoked. We note, in passing, however, that there is no conflict apparent between the common law rules hereinafter applied and the UCC definition of “security interest” above quoted. See Coogan, Leases of Equipment and Some Other Unconventional Devices, 1973 Duke L.J. 909.

At common law the distinction between a true lease and a conditional sale contract in which a “lease” is utilized as a device for retaining title in the seller until the buyer pays the price is fairly well delineated. The opinion of this Court in Singer Manufacturing Company v. Cole, 72 Tenn. 439 (1880) is one of the leading authorities.

Perhaps the most revealing test is whether the so-called lessee is obligated to accept and pay for the property or is obligated only to return or account for the property according to the terms of the lease from which he may be excused only if he exercises his privilege of purchasing it. If the latter is the case the transaction is a. true lease but if the contract, whatever its form, imposes an absolute obligation to pay for and accept the property and the trans-feror may require its return only upon default of the transferee, the transaction is a conditional sale. Singer Manufacturing Company v. Cole, supra; 8 Am.Jur.2d Bailments § 32 (1963).

Of course, the intent of the parties is always controlling and is to be ascertained from the whole transaction, not merely from the language employed.

In close cases the courts consider whether the payments required of the transferee are in such amounts, spread over such a period of time, and are to be so made that compared with the original value of the property, its depreciation and likely value at the end of the term, that they may be reasonably considered as compensation for the use of the property or, instead, as payments on an absolute obligation for the purchase price, as in a conditional sale.

Our examination of the evidence in the instant case compels the conclusion that it amply supports the finding and conclusion of the Chancellor and the Court of Appeals that the intention of the parties in each of the contracts here in issue was merely to create a lease rather than a conditional sale of the machinery involved. In no instance has Gregory, the transferee, obligated himself to become the owner of the property leased and to pay the purchase price thereof. Indeed, he purposely avoided assuming that obligation. In each instance Gregory obligated himself to pay rental for the minimum period only, so that his total payments obligation with respect to each machine varied, as a percentage of the purchase price, or total value, from approximately 5% to approximately 60%. In each instance Gregory had the right to terminate the lease at the end of the minimum lease period and at any time thereafter without paying the substantial equivalent of the value of the property leased; his only obligation was to pay the agreed rental for the period the property was used. We, therefore, concur in the finding of the Chancellor, approved by the Court of Appeals, as follows:

“The absence of an obligation to pay the purchase price of the equipment is totally inconsistent with Gregory’s contention that he had bought, and Thompson and Green had sold, this equipment. Common sense dictates that Thompson and Green would not have sold the equipment in question for the amount of the minimum rental. Yet that was Gregory’s only obligation under the contract. Witness James Gregory’s testimony amounts to saying, on the one hand, ‘these lease contracts were executed as security,’ and on the other, ‘there was no underlying obligation to be secured.’ ”

The accounting methods employed by each of the parties with respect to the rental payments made by Gregory and the listing of the machinery in question as inventory may be considered to be more indicative of the hope of the parties to minimize federal income taxes than of the true nature of the transactions between them. The inferences, if any, to be drawn from these accounting methods cancelled out each other, Gregory’s being consistent with leases and Thompson and Green’s being consistent with conditional sales.

We affirm the holding of the Chancellor and of the Court of Appeals that the transactions in issue were leases and not conditional sales.

Ill

USF&G insists that the failure of Thompson and Green to comply with the 30-day notice of claims required by T.C.A. § 54-522 releases it from its bond obligation on five of the seven highway contracts Gregory held with the State.

. While it is undisputed that notice was not filed with the Department of Highways within 30 days as to the claims of Thompson and Green totalling $112,817.76, we do not think the notice requirements for recovery of the “retainage” held by the State are applicable in a suit such as this that seeks recovery directly against the surety as allowed by T.C.A. § 54-519. Neither do we think that the provisions of T.C.A. § 12-421 requiring notice of outstanding claims within 90 days after completion of a public contract are applicable.

In reaching these conclusions we note that Chapter 4 of Title 12 sets forth the provisions applicable to public contracts in general and that Chapter 5 of Title 54 sets forth the provisions applicable to highway contracts, a subset of public contracts.

With regard to public contracts, Section 12-417 requires a contractor’s bond to guarantee payment of labor and materials used in the performance of a public contract. Section 12-420 authorizes a direct action against the surety by a furnisher of labor or materials if the contractor should disclaim responsibility for payment. The notice of such claim required for recovery against the surety is set forth in Section 12-421; the time period within which such actions for recovery must be brought is specified in Section 12-422.

With respect to highway contracts, Section 54-519 requires that all contractors who enter into contracts with the Highway Department make a bond guaranteeing the full performance of those contracts as well as the payment for all materials purchased and for all labor employed in performance of the contracts. Prior to 1967, however, Chapter 5 of Title 54 did not provide for suits against sureties at all. Rather, this Chapter contemplated only recovery against the “retainage” held by the State — a percentage of the contract price withheld from payment until completion of the contract and acceptance of the work. See T.C.A. § 54-521.

Section 54-522 prohibits full settlement with the contractor (payment of the retain-age required by Section 54-521) until advertisement is given of impending settlement with the contractor and claimants are given 30 days from the date of final publication of the advertisement within which to file notice of claims with the Department of Highways.

Section 54-523 then requires the commissioner of the highway department to withhold a sufficient sum from the contract price to pay all claims of which he has received notice. He is to withhold this sum for 60 days, during which time claimants must file suit. On the date set for full settlement with the contractor, the contractor may elect to make a refunding bond to the State for the amount withheld by the Commissioner. If a refunding bond is made, the contractor may be paid in full.

The notice requirements of Section 54-522 and the 60-day period of limitation on commencement of actions provided by Section 54-523 apply by their very terms only to claims asserted against the retainage fund in the hands of the Commissioner of Highways. In our opinion, these sections have no application to suits against the surety on the original payment bond by furnishers of labor or material. See Atlantic Refining Co. v. Standard Accident Insurance Co., 174 Tenn. 11, 120 S.W.2d 687 (1938).

In Thompson and Green Machinery Co. v. Travelers Indemnity Co., 57 Tenn.App. 592, 421 S.W.2d 643 (1967), it was noted that Chapter 5 of Title 54 (the Highway Act) did not provide for suits against sureties at all. Applying well-established principles of statutory construction, the Court of Appeals determined that statutes applying to the broad category of public contracts (Chapter 4 of Title 12)—unless inconsistent with the Highway Act (Chapter 5 of Title 54)—applied to state highway contracts as well. The court thus held “that for the purposes of defining the rights of subcontractors, laborers and materialmen against sureties on performance bonds, T.C.A. § 12-422 Pimitation of actions] is applicable to all public contracts, including State highway contracts.” Id. at 646.

In 1967, however, T.C.A. § 54-519 (the Section requiring highway contractors to execute a surety bond) was amended by adding a second paragraph to that Section, authorizing suits brought directly against the surety:

“All actions on bonds furnished under this Section shall name the Commissioner of Highways as a party-defendant and may be instituted in any court of competent jurisdiction in this State, but no such action shall be commenced after the expiration of one (1) year following the date of the first publication of the notice provided for in § 54-522 with respect to the involved project.” Public Acts of 1967, ch. 380, § 1.

It is immediately apparent that the 1967 amendment did not provide that notice of claims be given, the sole limitation of the amendment being that suits on highway contractors’ bonds be commenced within one year following the date of the first publication of the notice provided in Section 54-522.

We are of opinion that the Legislature intended that the 1967 amendment of T.C.A. § 54-519 specify the sole limitation on actions on highway contractors’ bonds and that, therefore, the notice provisions of T.C.A. § 12-421 do not apply in lieu of specific notice requirements in the Highway Act.

T.C.A. § 12-421 provides for the giving of a ninety day notice by those seeking to “secure the advantage of T.C.A. § 12 — 417-12-422.” The 1967 amendment to T.C.A. § 54-519, being repugnant thereto, rendered T.C.A. § 12-422 inapplicable and no other section of Title 12, Chapter 4 of the Code is involved in a suit against a surety on a highway contractors bond. T.C.A. § 54-519 is the only applicable statute since it now embraces all of the subject matter involved in such actions. It is clear that such suits do not seek to “secure the advantage” of any sections of the chapter on general public contractors and it follows that the notice requirements of T.C.A. § 12-421 were rendered inapplicable by the 1967 amendment.

It seems to us highly unlikely that the Legislature intended to supplant the statute of limitations applicable to the broad category of public contracts, T.C.A. § 12-422, with the one year provision of the 1967 amendment while leaving intact only the notice requirements found in T.C.A. § 12-421, a provision in a different Title and Chapter of the Code. We conclude that a claimant is not required to give notice of his claim when seeking recovery directly against a highway contractor's surety.

Having concluded that the agreements between Thompson and Green and Gregory were leases and not conditional sales and that, consequently, under T.C.A. § 54-519 USF&G is liable for unpaid rentals and, further, that Thompson and Green was not required to give notice of its claim, we affirm the judgment of the Court of Appeals. Costs of this appeal will be taxed against petitioner, United States Fidelity and Guaranty Company.

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

APPENDIX

Date Contract Executed Purchase Price Minimum Term Monthly (months) Rental Total Obligation Obligation/ Price Ratio

7/18/68 $62,148.00 12 $2,500.00 $30,000.00 48%

7/22/68 34,213.00 12 1,350.00 17,200.00 47%

8/2/68 45,610.00 12 1,500.00 18,000.00 40%

8/14/68 45,610.00 12 1,500.00 18,000.00 40%

8/15/68 28,317.00 12 1,000.00 12,000.00 42%

8/15/68 74,500.00 12 2,500.00 30,000.00 40%

8/16/68 79,540.00 12 2,500.00 30,000.00 38%

8/19/68 79,540.00 12 2,500.00 30,000.00 38%

8/30/68 16,000.00 3 900.00 2,700.00 17%

10/16/68 47,415.00 2 1,750.00 3,500.00 7%

1/10/69 47,415.00 12 1,500.00 18,000.00 38%

Date Contract Executed Purchase Price Minimum Term Monthly (months) Rental Total Obligation Obligation/ Price Ratio

3/15/69 66,630.00 15 2,500.00 37,500.00 56%

1/16/69 26,073.00 12 900.00 10,800.00 41%

1/24/69 66,630.00 15 2,500.00 37,500.00 56%

2/5/69 39,823.00 6 2,000.00 12,000.00 30%

6/30/69 32,505.00 12 1,000.00 12,000.00 37%

7/2/69 12,500.00 6 1,250.00 7,500.00 60%

7/10/69 66,605.00 12 2,500.00 30,000.00 45%

7/10/69 66,605.00 12 2,500.00 30,000.00 45%

9/2/69 67,603.00 12 2,500.00 30,000.00 44%

10/11/69 45,000.00 3 2,250.00 6,750.00 15%

10/24/69 84,219.00 3 4,250.00 12,750.00 15%

12/9/69 69,707.00 6 2,500.00 15,000.00 22%

12/15/69 84,046.00 6 3,000.00 18,000.00 21%

2/26/70 12,000.00 1 1,000.00 1,000.00 8%

7/3/70 29,032.00 1 1,500.00 1,500.00 5%

      . “ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (§ 47-2-401) is limited in effect to a reservation of a ‘security interest’. The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to chapter 9 of this title. The special property interest of a buyer of goods on identification of such goods to a contract for sale under § 47-2-401 is not a ‘security interest’, but a buyer may also acquire a ‘security interest’ by complying with chapter 9 of this title. Unless a lease or consignment is intended as security, reservation of title thereunder is not a ‘security interest’ but a consignment is in any event subject to the provisions on consignment sales (§ 47-2-326). Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does not make the lease one intended for security.”

      . We consider the projected market value compared to the lessee’s total obligation to be a preferable measurement because the purchase price remains constant while depreciation continues. See Granite Equipment Lease Corp. v. Acme Pump Co., Inc., 165 Conn. 364, 335 A.2d 294 (1973). However, we have compared the purchase price with the rental obligation in this case because projected market values are not included in the record.

      . See table in Appendix.

      . As discussed infra, the Highway Act was amended in May of 1967 to authorize suits brought directly against the surety. Pub. Acts of 1967, ch. 380. Section 2 of ch. 380 set July 1, 1967, as the effective date of the amendment to T.C.A. § 54-519 and provided that the amendatory language “shall not apply to any contracts or bonds entered into or given prior to that date, or to any action brought after that date on such contracts or bonds entered into or given prior thereto.”


text:
    David Lee ALLEN, Petitioner, v. Purtie HARVEY et al., and Waverly Housing Authority, Respondents.
    Supreme Court of Tennessee.
    June 29, 1978.

      Mark H. Collier, Waverly, Claude Calli-cott, Nashville, for petitioner.
    John Lee Williams, Porch, Peeler & Williams, Noble L. Freeman, Waverly, Robert L. Littleton, Dickson, for respondents.
   OPINION

BROCK, Justice.

This is an eminent domain proceeding in which no question is raised as to the right to condemn or the amount of compensation. The sole question is who is entitled to receive the $11,300.00 paid into court as damages for the taking of the land. Specifically, we must decide whether a child born out of wedlock may inherit from and through his father. The trial court concluded that he could not and the Court of Appeals affirmed. We granted certiorari.

The property in question consists of three tracts of land in Humphreys County taken by the plaintiff in 1971 for urban renewal, pursuant to authority granted by Chapters 8 through 11 of Title 13 of Tennessee Code Annotated. One of the tracts of land belonged to Boyd Allen who had two children, Louis Allen and Mary Francis Marable. Louis died in a work-related accident in 1942. His father died at some later date but before the death of his daughter who owned the two remaining tracts of land taken by the housing authority. Mary Frances, who had no children, apparently died shortly before the property in question was condemned. All three died intestate.

In its suit condemning the three tracts of land, the Waverly Housing Authority stated that it had been “unable to ascertain exactly who were the lawful heirs of the late Mary Frances Marable.” Five first cousins and an uncle of the deceased were listed as possible heirs-at-law. Plaintiff also stated that “one David Lee Allen may be some relation, adopted or otherwise, to the late Mrs. Marable. It is believed that he is incompetent.” In answer, the cousins of Mrs. Marable accepted the valuation of the property assessed by the jury of view, stated that they were unaware of the whereabouts of Mrs. Marable’s uncle, and further stated that they believed “that David Lee Allen was the son of Loui[e] (or Louis) Allen, the deceased brother of Mary Frances Marable, but [did] not believe that said Louie Allen was married to the mother of David Lee Allen, [and did] not know if he was ever adopted by Louie Allen.”

The trial judge appointed a guardian ad litem for David Lee Allen, for Mrs. Mara-ble’s uncle, and for any unknown heirs of the late Mary Frances Marable.

Three years later, in 1974, David Lee Allen by his retained counsel filed an answer to the original complaint, denying that he was incompetent and also denying that the cousins of Mrs. Marable were entitled to inherit from her since, under our laws of descent and distribution, he alone was her lawful heir. Concurrently, Allen filed a cross-complaint for a declaratory judgment that he was the son of Louis Allen and that, on the death of Mary Frances Marable, he was entitled to inherit from her under our laws of intestate succession.

The evidence considered by the trial judge showed that Louis Allen married a woman named Jenny Mays in 1924 and that, while they lived together only two or three years before separating, they had never divorced. Sometime prior to his death in 1942, Louis began to live with Mary Lou Howard. Mary Lou gave birth to a son, David Lee Allen, whom Louis claimed as his own child and supported until his death some six months after the child was born. David’s birth certificate showed Louis Allen to be his father and also showed that his parents were married. In an earlier court proceeding awarding workmen’s compensation benefits to David after Louis’s death, the doctor who delivered David testified that the information recorded on the child’s birth certificate had been supplied by both parents.

After his son’s death, Boyd Allen took Mary Lou and her young son into his home for a short while until Mary Lou married another man. At that time or shortly thereafter, David was taken into the home of his aunt, Mary Frances Marable. In 1955 Mrs. Marable applied for letters of guardianship for David, stating to the county court clerk that David was “one of her kin” and “a minor heir in her family” and that she “felt obligated to take care of him.” The guardian bond referred to David as a “minor heir” of Mrs. Marable. David lived with his aunt until 1956 when he was committed to the Vocational School for Colored Boys. His commitment papers stated that David was the son of Louis Allen and Mary Lou Howard and that he had lived with his aunt, Mary Francis Mar-able, for most of his life.

From all of the evidence the trial judge concluded that “the record fully supports the claim that David L. Allen is the natural son of Louis Allen but the evidence is that his parents were never married . . . .” He therefore concluded that, under our law, David “would not have inherited property from his father and therefore did not inherit the property in question from his natural aunt under the statutes of desent [sic] and distribution,” and ordered that further proof be taken to determine the next of kin of Mary Frances Marable.

David Lee Allen appealed the trial court’s decision to the Court of Appeals on several legal theories, including denial of the equal protection of the laws guaranteed by the Fourteenth Amendment of the United States Constitution as well as by Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution. The Court of Appeals, however, affirmed the findings and conclusions of the trial court and we granted Allen’s petition for certiorari.

At common law a child born out of wedlock was nullius filius — the child of nobody. Without parents in the eyes of the law, it followed that the child had no right to inherit from either of his natural parents. He was considered to have no “heritable blood.” Not only was the child incapable of inheritance but he could have no heirs except those of his own body. J. Kent, 2 Commentaries on American Law 212 (9th ed. 1858); 5 American Law of Property § 22.33 (A. J. Casner ed. 1952). See Brown v. Kerby, 28 Tenn. 460 (1848); R. Pritchard, 2 The Law of Wills and Administration of Estates § 779 (H. Phillips ed. 1955). See generally H. Krause, Illegitimacy: Law and Social Policy (1971).

In this country, however, state legislatures gradually enacted statutes recognizing children born out of wedlock as children of their mother, thus ameliorating somewhat the harsh rule of the common law. See C. Vernier, American Family Laws § 249, Table CXVIII (1936).

As early as 1805 our statutory law provided for judicial legitimation of a child born out of wedlock, a proceeding “remov[ing] the taint of bastardy, and givfing] such children the same inheritable blood as if they had been born legitimately.” Scott v. Wilson, 110 Tenn. 175, 179, 75 S.W. 1091, 1092 (1902). The commonlaw rule precluding inheritance by “illegitimates,” however, was not altered until 1819 when it was provided:

“That where any woman shall die intestate, leaving natural born child or children, and no legitimate child or children, such natural born child or children, shall take by the general rules of descent and distribution, the estate real and personal of his, her or their mother, and should either of such children die intestate without child, his or her brothers and sisters shall in like manner take his or her estate

. .” Public Acts of 1819, ch. 13. Under this Act, a child born out of wedlock could inherit from his or her mother—provided the mother had no “legitimate” child or children. Turnmire v. Mayes, 121 Tenn. 45,114 S.W. 478 (1908). Thus, the 1819 Act “conferr[ed] inheritable blood upon illegitimates . . to a limited degree.” Id. at 53, 114 S.W. at 480 (emphasis added.)

Chapter 39 of the Public, Acts of 1851-52 provided statutory heirs — other than those of his own body — for a person born out of wedlock who died intestate. If such person had no child or children, the statute provided that both real and personal property passed to the surviving wife or husband and, if no spouse survived, to the mother. If the mother was dead, the estate passed to the brothers and sisters of the decedent by his or her mother or to their descendants.

Presented with a situation where a child born out of wedlock died intestate without issue but leaving surviving half brothers and sisters (born to the same mother in lawful wedlock), our Supreme Court held, in Riley v. Byrd, 40 Tenn. 20 (1859), that the half sisters and brothers born in wedlock could share in the estate of the half brother born out of wedlock.

In Woodward v. Duncan, 41 Tenn. 562 (1860), the Court held, however, that half sisters born out of wedlock could not share in the inheritance of their childless half brother along with his full sisters who were born, as was the decedent, in lawful wedlock. The Court stated: “The common law-rule must prevail as to that, as there has been no change by any Statute. We are not disposed to go beyond the Legislature in removing the checks upon illicit intercourse, and the stigma from bastardy. The cause of good morals forbids it.” Id. at 564.

As the Court later noted: “[t]hese two cases illustrated the inequality which was worked under this act.” Laughlin v. Johnson, 102 Tenn. 455, 459, 52 S.W. 816, 817 (1899).

For some reason lost to history, the salient features of the 1819 Act were not brought forward into the 1858 Code and thus, by this omission, were repealed. See Dennis v. Dennis, 105 Teim. 86, 58 S.W. 284 (1900); Kelly v. Jackson, 2 Shan.Cas. 198 (1877). See generally Williams, A History of Codification in Tennessee, 10 Tenn.L. Rev. 61, 69-78 (1982). In 1867, however, “a more advanced step in effectuating the general design to give ample relief to this unfortunate class of persons,” Laughlin at 458, 52 S.W. at 817, took the place of the 1819 Act:

“ . . . where any woman shall die intestate, having a natural born child or children, whether she also leave a legitimate child or children, or otherwise, such natural born child or children shall take, by the general rules of descent and distribution, equally with the other child or children the estate, real and personal, of his, her, and their mother; and should either of such children die intestate, without child, his or her brothers and sisters shall, in like manner, take his or her estate.” Public Acts of 1866-67, ch. 36, § 10, codified as T.C.A. §§ 31-107 and 31-205 (1955) (emphasis added).

The 1867 Act corrected the “inequality” of the 1819 Act by creating “mutual rights of inheritance as between legitimate and illegitimate brothers and sisters when either should die intestate and without child,” Laughlin at 460, 52 S.W. at 817, and, thus, “remove[d] the taint of illegitimacy, so far as to confer inheritable blood on the natural born child,” id. in those limited circumstances.

Although, in 1949, a second method of legitimation (by subsequent intermarriage of the parents) was legislatively sanctioned, the common-law rule denying an “illegitimate” child’s right to inherit from his father was not modified until 1955 when our legislature provided that a child born out of wedlock could inherit from his father if the issue of paternity had been determined under the provisions of Chapter 2 of Title 36 of Tennessee Code Annotated and if a court order of paternity and support had been entered. Public Acts of 1955, ch. 186, § 13, codified as T.C.A. § 36-234. The 1955 Act provided that if the above conditions were met, “the child shall be a legitimate child of the [father] for the purpose of inheriting from [him].” (Emphasis added.) The child himself was not thereby deemed to be “legitimate.” Rather, upon a judicial determination of the father-child relationship, “inheritable blood” was legally conferred upon the child.

Finally, in 1978, our legislature provided that, for purposes of intestate succession, a person born out of wedlock is a child of his father as well as his mother if “paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof . . .” Public Acts of 1978, ch. 763, § 3.

In this case, the trial court found that David Lee Allen was the son of Louis Allen but that his parents were never married. The Court of Appeals concurred in the trial judge’s finding. While we have some doubt about the sufficiency of the evidence supporting this determination, upon this concurrent finding the facts are conclusively presumed before the Court. T.C.A. § 27-113. No evidence was adduced at trial that David was legitimated or that his paternity was ever adjudicated.

Under our statutes of descent then in effect, had David been “legitimate” or had he been “legitimated” or his paternity established by adjudication, he would have inherited his father’s share of Boyd Allen’s tract of land, the two tracts of land owned by his aunt in her name, and her share of Boyd Allen’s real property. See T.C.A. § 31-101 (1955). But, despite the legislature’s final rejection of the remnants of the common-law rule restricting the inheritance rights of a child born out of wedlock, Public Acts of 1978, ch. 763, § 3, David’s rights as an heir had been statutorily expanded only to the extent that he could inherit from his mother or her family at the time relevant to a determination of his rights in this case. The heart of the common-law rule, however — the denial of “heritable blood” to a child born out of wedlock — had been legislatively excised in 1955 by the enactment of T.C.A. § 36-234, allowing a child born out of wedlock to inherit from his father upon a judicial determination of paternity. Although the 1955 Act expanded the inheritance rights of children born out of wedlock only upon an adjudication of paternity before the death of the father, we interpret the policy of that Act to be one of sanctioning inheritance if the father-child relationship is clearly established.

In this case, the trial judge found that “the record fully supports the claim that David L. Allen is the natural son of Louis Allen.” Louis openly acknowledged that he was David’s father and claimed the child as his. Until his premature death, Louis lived with and supported the child. Even after Louis’s death, his son lived with Louis’s father and, subsequently, with his sister as a child of their extended family. None of the parties to this suit has questioned that Louis Allen was the father of David Allen.

Because, as Sir Edward Coke — the champion of common law — said, “the common law itself is nothing but reason,” First Part of the Institutes of the Laws of England (1628), we conclude that David Allen can inherit from and through his father and, thus, that he is entitled to the proceeds of the condemnation of his family’s land.

Our conclusion is persuaded not only by the policy evidenced by the foregoing analysis of Tennessee law but by the decision of the United States Supreme Court in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). In Trimble, the Court held unconstitutional an Illinois statute that permitted only legitimate children to inherit from a father who died intestate. The Court found that the state’s legitimate interest in establishing an orderly method of disposition of property at death did not justify its broad exclusion of “illegitimates” from the state’s statutory scheme of intestate succession. Acknowledging that “[t]he more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their father’s estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children claiming generally,” 430 U.S. at 770, 97 S.Ct. at 1465, the Court, nevertheless, insisted that “[f]or at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, [the Illinois statute] is constitutionally flawed.” Id. (Emphasis added.) Quoting from its decision in Gomez v. Perez, 409 U.S. 535, 538 (1973), the Court noted that problems of proving paternity “are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” 430 U.S. at 772, 97 S.Ct. at 1466.

While significant variations exist between Tennessee law and Illinois law with regard to the inheritance rights of a child born out of wedlock, we agree with Justice Powell who wrote for the Court’s majority in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 1406, 31 L.Ed.2d 768 (1972):

“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrong-doing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust— way of deterring the parent.”

Although we think that a child born out of wedlock must meet a stricter or higher standard of proof of paternity than is required for a child born within wedlock, denial of an inheritance to a child whose father openly and consistently acknowledged the father-child relationship and who lived with the child and provided for his support would, in our opinion, deprive the child of his inheritance “unnecessarily” as forbidden by Trimble and would also belie the “reason” that is the strength of the common law.

The decision we reach today — that a child born out of wedlock may inherit from and through his father — is specifically limited to cases where paternity is established by clear and convincing proof and to cases where rights of inheritance have not finally vested. All cases in conflict with this decision are hereby expressly overruled.

The application of this decision shall be prospective only but it shall govern any cases pending in the courts of Tennessee on the date this opinion is released, asserting the right of children born out of wedlock to inherit from their natural father.

We reverse the decision denying David Lee Allen the just compensation awarded for the taking of his property by the plaintiff and remand to the trial court for further proceedings not inconsistent with this opinion. Costs will be taxed against the respondent relatives of Mary Prances Mara-ble.

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

      . Plaintiffs complaint states that “D. Scott Porch, Jr. is the appointed and acting administrator of [Mrs. Marable’s] estate which is presently being administered upon.”

      . In the sixteenth century, a child born out of wedlock was generally referred to as a “natural child.” Hubback, EVIDENCE OF SUCCESSION 252-53 (1844). Note that T.C.A. § 36-308, enacted in 1970, prohibits legal reference to an “illegitimate” person.

      . Pub.Acts of 1805, ch. 2, § 1 gave the courts “ . . . full power and authority to alter the name of any illegitimate person, on application of any person wishing to make legitimate any of their offspring not born in wedlock: Provided said applicant intends to make said illegitimate person, heir, or joint heir to his or her estate.”

      . Chapter 34 of the Public Acts of 1885 extended this statutory scheme by providing for the disposition of the estate of a person bom out of wedlock who died without spouse, issue, mother or brothers and sisters. In such case, the 1885 Act provided that his estate would pass as would the estate of a person bom in lawful wedlock without surviving relatives on his father’s side.

      . Pub.Acts of 1949, ch. 70, § 1, codified as T.C.A. § 36-307, provided that if the parents of a child born out of wedlock subsequently intermarry, the child “shall become legitimate for all purposes and entitled to all the rights and privileges of legitimate children, without the necessity of any [legitimation] proceedings . .” This Act included marriages “later found to have been [found] illegal, void or voidable, [if] the father recognizes or holds said child out as being his.” Pub.Acts of 1949, ch. 70, § 1.

      . Illinois had no statute such as T.C.A. § 36-234, authorizing inheritance from the father of a child bom out of wedlock if paternity has been adjudicated. Thus, in Trimble, although the Circuit Court of Cook County had entered a paternity order finding Gordon to be the father of Deta Mona Trimble about a year before Gordon’s death, the child was not allowed to inherit her father’s estate. Under the same facts, Tennessee law would have allowed her to inherit.


author: FONES, Justice.

text:
    Roy Lee ROBINSON (Pines) and Kenneth Lebrón Robinson (Pines) by mother and next friend Marvella Robinson (Pines), Petitioners, v. B. Z. TABB and Maddie Mae Brown, Administrators, Estate of Amos Lee Pines, Deceased, Respondents.
    Supreme Court of Tennessee.
    June 29, 1978.
    John C. Curtis, Chattanooga, for petitioners.

      Ben Zion Tabb, Atchley & Atchley, Fielding Atchley, Atchley & Atchley, Chattanooga, for respondents.
   OPINION

FONES, Justice.

This suit involves the right of two minor illegitimate children to the proceeds of a policy insuring the life of Amos L. Pines, deceased, wherein no individual was designated as beneficiary.

Marvella Robinson (Pines), as mother and next friend of Roy Lee Robinson (Pines), age two years, and Kenneth Lebrón Robinson (Pines), age three months, (as of September 1976), filed an intervening petition in the estate of decedent asserting that Amos L. Pines, deceased, was their father and that they were entitled to the policy proceeds by virtue of T.C.A. § 56-1108.

The learned chancellor held that decedent was the father of Roy and Kenneth and awarded the $6,000 proceeds of the policy to them. He relied upon cases annotated in 62 A.L.R.3d 1329 (1975), and particularly a Florida case, In re Estate of R.L.B., 259 So.2d 206 (Fla.Dist.Ct.App.1972). To support his reasoning, the chancellor held that the word “children” in T.C.A. § 56-1108 is broad enough to encompass all of the offspring of the insured, whether legitimate or illegitimate, and that life insurance proceeds subject to the provisions of that statute pass to the statutory beneficiaries outside of the law of descent and distribution.

The Court of Appeals reversed, holding that the characterization by this Court in Frazier v. Frazier, 221 Tenn. 705, 430 S.W.2d 655 (1968), of T.C.A. § 56-1108 as a rule of devolution rather than a rule of construction, placed it within the ambit of the statutes of descent and distribution.

While we agree with the Court of Appeals in that interpretation of T.C.A. § 56-1108, this case is controlled by our decision rendered today in Allen v. Harvey, et a 1. and Waverly Housing Authority.

In Allen, we held that a child born out of wedlock may inherit from and through his father where paternity is established by clear and convincing proof, to be applied prospectively and to pending cases that assert the right of illegitimates to inherit from their father.

In our opinion, the proof that Amos Pines, deceased, was the father of Roy and Kenneth was clear and convincing. Mar-vella Robinson (Pines) testified that she and Amos Pines lived together as man and wife from 1970 until his death in 1976, although they were not legally married, and that Amos Pines acknowledged paternity of Roy and Kenneth and supported the family, including Marvella’s oldest son Charles Freddie, born of a previous union. For the year 1975, deceased filed a Federal Income Tax Return showing Marvella as his wife and Roy and Charles as his dependent children (Kenneth was born in 1976). In February, 1974, deceased applied for coverage on a group policy carried by his employer and named Charles Freddie as beneficiary. Also in February, 1974, Amos procured the issuance of an industrial policy insuring the life of Marvella, named therein as M. R. Pines, designating himself as beneficiary, and a similar policy insuring the life of Marvella’s son Charles, named therein as Charles F. Pines, designating Marvella as beneficiary.

Eight witnesses testified that Marvella and Amos lived together as man and wife and the majority of them also testified that Amos supported Marvella and her sons and acknowledged that he was the father of Roy. Kenneth was born just a few weeks prior to Amos’ death, but several of the witnesses testified that he had acknowledged paternity of Kenneth. The countervailing testimony of Amos’ mother, father, and aunt does not directly contradict the testimony recited above. The fact that Amos contributed to the support of his parents and that some of his clothes remained in his parents’ house and that he was seen there often does not contradict what we regard as clear and convincing evidence of the deceased’s paternity of Roy and Kenneth, his acknowledgment thereof, and support of Marvella and her family.

Provident Life and Accident Insurance Company paid the proceeds of the policy on deceased’s life to the administrators on September 14, 1976, prior to the filing of the intervening petition on behalf of Roy and Kenneth. The record reflects that the administrators have paid that portion of the funeral expense not covered by social security, a bond premium, and part of the Probate Court costs. The Chancellor decreed that Roy and Kenneth and their attorney recover from the administrators the full policy proceeds of $6,000. We are of the opinion that in the circumstances of this case, equity requires that the funeral expense, bond premium, Probate Court costs, and the costs of this appeal should be paid out of the policy proceeds, and the balance awarded Roy and Kenneth and their attorney.

The decree of the Court of Appeals is reversed and, as modified, that of the trial court affirmed. The cause is remanded for entry and enforcement of a decree in accord with this opinion.

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