author: HOGAN, Presiding Judge.

text:
    Carl A. ARNETT and June Arnett, Plaintiffs-Respondents, v. C. E. KEITH and Marie Keith, Defendants-Appellants. Carl A. ARNETT, Plaintiff-Respondent, v. C. E. KEITH, Defendant-Appellant.
    Nos. 10423, 10431.
    Missouri Court of Appeals, Southern District.
    May 29, 1979.
    Joseph A. Bohrer, John D. Compton, Nea-le, Newman, Bradshaw & Freeman, Springfield, for defendants-appellants.
    William H. McDonald, David L. Smith, Woolsey, Fisher, Clark, Whiteaker & Sten-ger, Springfield, for plaintiff-respondent.

      Before HOGAN, P. J., STONE, Acting Senior Judge, and GRIMM, McHANEY and STEELMAN, Special Judges.
   HOGAN, Presiding Judge.

These appeals arise out of a single transaction — the sale of a business called the Urbana Sales Barn, and the land on which the business is located. The sale was consummated by the execution of two contracts, one written, the other oral. The written contract is a contract for a deed to a one-half interest in a tract of land on which the business is located. The oral contract covered the sale of the “business,” plaintiff Carl Arnett’s interest in the equipment used in the business, the “goodwill” of the business, and possibly a restaurant.

Plaintiffs declared first upon a check in the amount of $12,500, which, according to their proof, represented the balance due upon the oral contract. A further action was filed upon the written contract. In the action upon the written contract, plaintiffs incorporated the contract by reference, averred that defendants were in default, and prayed an order declaring the earnest money ($5,000) forfeit, the contract void by reason of default, an allowance of $830 per month for the 7-month period defendants had held over, and an order quieting their title to the realty described in the contract for deed.

Upon plaintiffs’ motion, the two cases were consolidated. On the day finally set for trial, defendant C. E. Keith appeared without counsel. Observing that he had several times advised Mr. Keith to be prepared, the court proceeded to trial. Plaintiffs’ evidence was presented by counsel. Defendant C. E. Keith, with some assistance from the trial court, defended himself. After hearing evidence, the trial court granted plaintiffs the relief for which they had prayed. Defendants Keith now appeal. They raise two points:

1) The trial court erred in compelling them to proceed to trial because they were not notified of their counsel’s withdrawal until nine days before trial, were not allowed a reasonable time to secure counsel, and were therefore deprived of due process of law.

2) The trial court erred in entering judgment against plaintiffs based upon a rental value of the real property in excess of the amount agreed to in the contract for deed.

We review only those errors properly developed in the defendants’ brief. Pruellage v. DeSeaton Corporation, 380 S.W.2d 403, 405[3] (Mo.1964); White v. Kuhnert, 207 S.W.2d 839, 840[1] (Mo.App.1948). We are not convinced that any real “due process” question is involved on this appeal, and we decline to consider the defendants’ argument that they were deprived of a constitutionally protected right. The general rule is that constitutional issues must be raised at the earliest opportunity consistent with good pleading and orderly procedure, Christiansen v. Fulton State Hospital, 536 S.W.2d 159, 160[1] (Mo. banc 1976); Pruellage v. DeSeaton Corporation, supra, 380 S.W.2d at 405[2], and the notion that a constitutional question may inhere in a case has been consistently rejected. Christiansen v. Fulton State Hospital, supra, 536 S.W.2d at 160[3]. The judgments complained of were entered June 12, 1976. Defendants obtained most competent counsel in time to appeal on July 9 and 16, 1976. With deference, we believe that if counsel were convinced there was error of constitutional dimension in compelling defendants to go to trial, that point might have been raised in the trial court by an adjunctive motion. Cf. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961); In re Jackson’s Will, 291 S.W.2d 214 (Mo.App.1956).

We view the question before us as requiring a determination whether the trial court abused its discretion. The fact that an attorney withdraws from a case does not give a party an absolute right to a continuance. Harms v. Simkin, 322 S.W.2d 930, 933[4] (Mo.App.1959); Annot., 48 A.L.R.2d 1155, 1157-1159, § 2 (1956). The decision whether to grant or deny a continuance rests largely in the discretion of the trial court, and on appeal, every intendment is in favor of the trial court’s ruling. Harms v. Simkin, supra, 322 S.W.2d at 933; Savings Finance Corp. v. Blair, 280 S.W.2d 675, 678[7] (Mo.App.1955). The defendants make much of the fact that their attorney of record filed an application to withdraw only nine days before trial, and that motion was never formally ruled. Nevertheless, defendant C. E. Keith said he knew five days before trial that his counsel had withdrawn, and what is much more illuminating, testified that he had “quit going” to see his attorney, inferably some time before the trial. Also revealing, in our view, is Mr. Keith’s testimony that he had given his attorney of record a personal check for $5,000, but did not know to which contract, the written or oral contract, the check had been credited.

In addition, at the time the cases were called for trial, the trial court stated— and we readily accept his statement — that he had advised Mr. Keith to be prepared on three different occasions prior to trial. The trial court also indicated that he had been in contact with Mr. Keith’s attorney and that the attorney had indicated he could obtain no cooperation from Mr. Keith. While we are not prepared to agree with plaintiffs’ counsel that the defendants deliberately sought to stall as long as they could,, the record indicates singular inattention and lack of interest on defendants’ part until their day of reckoning came and judgment was rendered against them. We find no abuse of judicial discretion in requiring defendants to go to trial on June 12, 1976.

Defendants’ second point requires some discussion. Plaintiffs contend the point is not properly preserved for review, but we cannot agree. Defendants contend that the trial court erred in basing its judgment on an erroneous rental value based on plaintiff Carl Arnett’s testimony, rather than the contract for deed, which recited:

“[I]t is further contracted and agreed that the reasonable rental value of this property is $5,000.00 per year, and if default be made in the payments herein provided then this contract shall become null and void and all payments shall be kept as rent for the premises and the [plaintiffs] shall be entitled to immediate possession of said described premises.”

Admittedly the plaintiffs sued on a contract for deed. They received $5,000 as a down payment and as the first year’s rent. By letter, plaintiffs gave notice of default on November 12, 1975, requesting that defendants vacate the premises by November 22, 1975. The execution of the contract, defendants’ payment of the rent for a period of one year, defendants’ default, the giving of notice of default and defendants’ wrongful holding over were all incorporated by reference in a count in ejectment which was one of three counts in plaintiffs’ petition on the written contract. In its judgment, the trial court found that plaintiffs were entitled to retain the $5,000 received as a year’s rental; that defendants became and were in default on November 6, 1975, and thereafter wrongfully held over to June 6, 1976; that the reasonable and fair rental value of the premises was $830 per month, and that plaintiffs should therefore have judgment in the amount of $5,810 against defendants as damages for the wrongful holding over.

It may be conceded that the plaintiffs are entitled to the fair rental value of the premises during the time the land was wrongfully withheld. Rule 89.09, V.A.M.R.; Dent v. Dent, 350 Mo. 560, 571, 166 S.W.2d 582, 588[11] (1942); Atkinson v. Smothers, 291 S.W.2d 645, 649[8] (Mo.App.1956). Nevertheless, the contract provision quoted is what is known as a “liquidated damages” provision. By its order and judgment the trial court found the liquidated damages clause valid; as much may be inferred from the provision allowing plaintiffs to retain the $5,000 down payment. If a provision for liquidated damages is valid, the stipulated amount forms the measure of damages in case of a breach, and recovery must be for that amount, even though the actual loss may be greater or less. Trans World Airlines v. Travelers Indemnity Company, 262 F.2d 321, 325-326[1] (8th Cir. 1959); 1 Sedgwick, Damages § 426, pp. 824-825 (9th ed. 1912); 22 Am.Jur.2d § 235, p. 321 (1965). Plaintiffs founded their action in ejectment on breach of the contract. They may not now claim damages in a sum greater than that to which they agreed. The trial court should have assessed plaintiffs’ damages for the wrongful holding over at the rate of $416.67 per calendar month, rather than $830 per month.

The cause is remanded to the trial court with direction to compute plaintiffs’ damages for wrongful holding over at the rate of $416.67 per month for and during the time the premises were held over. In all other respects, the judgment is affirmed.

All concur.

      . Referred to in the record only as the “sale barn.'


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Glynn OWENS, Defendant-Appellant.
    No. 10995.
    Missouri Court of Appeals, Southern District, Division Three.
    May 30, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 18, 1979.
    Application to Transfer Denied July 17, 1979.

      James A. DeReign, Caruthersville, for defendant-appellant.
    • John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GREENE, Judge.

On November 30, 1977, defendant Glynn Owens was found guilty in the Circuit Court of New Madrid County of two counts of rape, after trial by jury. Defendant filed a motion for new trial on December 14, 1977, which motion was denied. On January 13, 1978, the trial judge sentenced defendant to life imprisonment, in accordance with the verdict of the jury, on the two counts of rape, said sentences to run concurrently. Defendant filed a notice of appeal in the supreme court, which court, by order of April 3, 1978, transferred the case to this court, in which jurisdiction is now vested.

Defendant concedes, by motion requesting us to consider his appeal under the plain error doctrine filed in this court on April 6, 1979, that his motion for new trial was not timely filed. This being so, we are precluded from considering any matters required to be preserved in such motion, State v. Parker, 310 S.W.2d 923, 924 (Mo.1958), unless we consider such objections that are raised in his motion for new trial and in his brief on appeal under Rule 27.20(c), to determine if manifest injustice or miscarriage of justice has resulted from alleged trial court error affecting the substantial rights of the defendant. We sustain the motion and review under the plain error doctrine, as the defendant was 15 years old at the time of the alleged crimes, and because of the severity of the sentence.

The facts in the case are as follows. On February 14, 1976, at about 8:25 p. m., Kate Smith, Deputy Juvenile Officer of the 34th Judicial Circuit of Missouri, received a call from a Caruthersville police officer, John Yerby, concerning the alleged rape and beating of a thirteen year old female. Officer Smith immediately investigated the incident. The girl in question, unnamed here because of her tender years and hereinafter referred to as the victim, told Officer Smith that earlier that evening she was walking to her grandmother’s house from the Gem Theatre, when she heard someone running behind her. She turned around and saw a young male person who had a knife in his hand. He told her to come with him or he would kill her. He forced her to accompany him to an old shed where he forced her to the ground, hit her in the face to make her spread her legs, cut her hand with his knife during the struggle, and then raped her. Two other young males approached the scene, and the first rapist then asked them if they wanted some too. She was carried into the shed where she was beaten further, raped again by her first assailant, later identified as the defendant, and raped for a third time by one of the other young males. Juvenile Officer Smith observed that the victim had swollen eyes, with the right eye being discolored. Her mouth was cut and swollen. She had small cuts above and below her lips and on the index finger on her right hand. She told Officer Smith that she knew her assailant, but did not know his name, as they had attended the same school. She later identified the defendant in a lineup as the person who had beaten her, cut her with his knife and raped her twice on February 14, 1976. Officer Smith, after completing her investigation, filed a petition in the Juvenile Court of Pemiscot County, Case No. 362. The petition was a proceeding filed under § 211.-091, seeking to bring the defendant under the jurisdiction of the juvenile court as he was 15 years old at the time of the alleged assault and multiple rapes.

Juvenile Officer Smith then filed a motion seeking to have the petition dismissed so that prosecution could be instituted against defendant under general law. A hearing was held before the juvenile judge of Pemiscot County on February 24, 1976, for the purpose of determining whether or not the motion should be sustained. After hearing, the juvenile judge entered an order dismissing the petition so that the defendant could be prosecuted under general law for the crime of rape. A felony complaint was then filed against defendant in the Magistrate Court of Pemiscot County, charging defendant with two counts of rape. A preliminary hearing was held before the magistrate on March 9, 1976, after which the magistrate court found that there was probable cause to believe that the defendant was guilty of the crimes charged, and bound him over to the circuit court for trial.

The prosecuting attorney then filed a two count information in the circuit court charging defendant in each count with rape. Defendant filed a motion to dismiss the information, alleging that the juvenile certification process had been defective, in that insufficient evidence had been presented at the juvenile hearing for the juvenile judge to make a determination that the defendant was not amenable to the juvenile process, and further that the reasons given by the judge in his certification order were not legally justifiable reasons and were so broad and vague that the order denied due process of law to the defendant. Defendant then applied for and received a change of venue, and a change of judge. The case was transferred to New Madrid County, where a successor trial judge overruled the motion to dismiss.

Defendant then filed a petition for writ of prohibition in this court in case No. 10615, seeking to prohibit the trial judge from proceeding, for the reason that the juvenile certification process was faulty in that the reasons given by the juvenile judge for dismissing the juvenile petition and permitting defendant to be tried as an adult were insufficient under the case law of this state. This court, on that basis, issued a permanent writ of prohibition against the trial judge. The case was then remanded to the Juvenile Court of Pemiscot County. An amended § 211.091 petition and an amended motion to dismiss the petition, so that defendant could be prosecuted under the general law, were filed by the juvenile officer. A second certification hearing was then held before a successor juvenile judge. A summarization of the testimony of the witnesses is as follows:

Gerald Corbin was a retired school teacher. He had taught Industrial Education in the Caruthersville school system and defendant had been one of his students. Defendant did not seem to want to apply himself. He would walk around in class, interrupt the class and would not work. When defendant violated a rule, and was so advised, he would argue with the teacher. On one occasion, defendant told Corbin he could have “got” Corbin when he had seen Corbin in defendant’s neighborhood. The teacher found it necessary to place defendant in detention. Defendant then quit the class.

Joe Parkinson was the high school principal. He testified that defendant only came to school about half the time. He had talked to defendant’s grandmother about the truancy and the grandmother said, “I can’t take care of him”. Defendant was living with her at the time. Defendant was called to the principal’s office five or six times because of truancy. Parkinson dropped defendant from Mr. Corbin’s class because defendant had threatened Corbin. Defendant’s grades were average to a little below average, and his intelligence quotient was average to slightly below average.

Kate Smith, the Deputy Juvenile Officer, testified that before the rapes, defendant had been brought to the attention of the juvenile officer on complaints of vandalism, truancy and indecent exposure. She related the facts concerning her investigation of the rape and assault that we have previously referred to in this opinion. She did not believe that the Division of Youth Services could properly handle the defendant and that defendant would escape if he was put with the Division of Youth Services. She testified that status offenders, such as defendant, were hard to deal with and that the best interest of society would be served by certifying defendant to adult court. As to her reasons for this opinion, she testified that defendant had no adult guidance, that he would not stay in school, that he would not obey rules, and that his attack and rape of the thirteen year old victim had been a crime of vicious nature. It was also her opinion that defendant was incorrigible. She further stated that defendant showed no remorse because of the rape and assault.

The victim then testified, over the objection of the defendant. The grounds for the objection were that the allegations of the crime in the petition were sufficient and that the testimony of the victim was unnecessary. She was thirteen years old on February 14, 1976. On that evening she was walking from the Gem Theatre to her grandmother’s house. Someone grabbed her from behind and said he would kill her if she did not keep still. The person who grabbed her was the defendant. He had a knife in his hand. He took her behind a shed and told her to take off her clothes. Defendant hit her in the face and threatened to kill her if she did not comply. In the struggle, he cut her on the hand with the knife. He forced her to the ground and forced his penis into her body. Two other young males approached and defendant asked them if they wanted some, and one said “Yes”. They took her inside of the shed where defendant raped her again, and then she was raped by one of the other young males. Defendant told her, after the rapes, that if she said anything, he would get her again and kill her. She then went to her grandmother’s who called her mother and from there she was taken to a doctor. The victim’s bloodstained clothing was introduced into evidence, over the objection of the defendant, to show the viciousness of the attack.

Troy McCullough then testified. He was a Deputy Juvenile Officer of Pemiscot County. He related further details of the indecent exposure incident that occurred in November of 1975. The complaint was that defendant and his girlfriend had been found nude in a vacant house. He said that defendant needed a type of supervision not provided by the Division of Youth Services. As further evidence, it was stipulated that while defendant was in custody on the rape charge, he absented himself without leave, while serving as a trusty and remained absent until apprehended. This concluded testimony for the state.

Defendant then presented testimony. By stipulation, a psychiatric evaluation report based on an examination of defendant, was admitted into evidence. This psychiatric report showed that defendant had a previous history of anti-social behavior, that defendant appeared intelligent, and that he was not psychotic.

Paul F. Hess then testified. He was the Regional Director of Youth Services. He had classified a number of juveniles who had committed serious crimes such as murder, arson, rape and assault. He said that if the court committed the defendant to the Division of Youth Services that they could place him in an appropriate place. On cross-examination, he testified that he had one forcible rapist under his supervision, but, to his knowledge, he did not have any juveniles assigned to him who had also assaulted the person that they had raped. He could not assure the court that defendant would not escape if assigned to Youth Services. When questioned by the court, he testified that the longest period of time that anyone had been committed to the Division of Youth Services was 14 months. He could not say, on the basis of his limited contact with defendant, that the Division of Youth Services was prepared to cope with any problem which he might present.

Beatrice Stapleton then testified. She was the maternal grandmother of defendant, and took care of him. His mother was dead, and he had been abandoned by his father. Defendant had formerly lived with his paternal grandmother, Mrs. Owens, but ran away, and came to live with Mrs. Sta-pleton in the summer of 1975. She had difficulty taking care of defendant. She said that defendant had denied raping the victim. She could not make defendant go to school and could not handle him. Defendant came and went as he pleased.

Peggy Jackson, the maternal aunt of defendant, testified that she helped her mother take care of defendant in the summer of 1975. She said defendant was in a very confused state of mind. He had left Ca-ruthersville without permission, had gone to Arkansas, and had finally come back. She took defendant to California with her, but he came back to Missouri in a few months.

Barbara Lewis, also a maternal aunt of defendant testified that defendant stayed with her in California from July to September of 1975. She did not have any difficulty with defendant.

Lizzie Owens was the final witness for the defendant. She was his paternal grandmother. Defendant stayed with her part of the time. She kept him for ten years. He wanted to stay with Mrs. Stapleton and left the home of Mrs. Owens. Defendant denied the crime to her. There was no further evidence in the juvenile certification hearing.

The successor juvenile judge, on June 23, 1977, issued an order dismissing the juvenile petition to allow prosecution of defendant under the general law. The order recited that defendant was not a proper subject to be dealt with under the juvenile code for the reasons that, a) the juvenile defendant was a well-developed, mature and experienced person of average or above average intelligence; b) he was not suffering from any mental disease or defect and had the capacity to understand the proceedings against him, and to assist his attorney in his defense; c) the charges alleged, if found to be true, indicated an aggressive, vicious, violent and willful manner of conduct on the part of the defendant; d) defendant had demonstrated, by his prior behavior in the home of his grandmother and in his prior experiences with the juvenile court, that he could not adjust, and did not intend to adjust, to the non-criminal demands of society, and that he needed to be confined in a more structured environment than was available in institutions operated by the Division of Youth Services; e) there was a reasonable likelihood that similar future conduct would not be deterred by continuing the defendant under the juvenile law process; f) the nature and seriousness of defendant’s conduct constituted a threat to the community, and no facilities existed within the juvenile code which offered reasonable expectation of treatment and rehabilitation of defendant and which would afford protection to the community from future acts of the defendant, and that defendant was likely to escape if placed in any juvenile facility now available in Missouri; g) most juveniles are now being held in the juvenile facility for approximately 8 or 9 months and few are held beyond 14 months, and the maximum time that defendant could be held was 4 years and 2 months; and, h) in the totality of the circumstances, and because of all of the reasons stated, defendant should be dealt with under the general law, rather than within the limited purposes and time of any juvenile facility.

A felony complaint was then filed against defendant charging him with two counts of rape. Hearing was waived, and defendant was bound over for trial. The prosecuting attorney of Pemiscot County, on August 12, 1977, filed a two count information against defendant, in Case No. 835, charging defendant in each count with the crime of rape, under § 559.260, the pertinent portion of which states, “Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of sixteen years . . shall be punished by imprisonment by the division of corrections for not less than two years”. The statute does not set any maximum penalty.

Defendant then applied for, and received, a change of venue and a change of judge. The case was again transferred to New Madrid County, and a special judge was assigned. Defendant filed a motion to dismiss the information, alleging that § 559.-260, under which he was charged, did not contain a maximum limit of punishment and, therefore, conferred a delegation of legislative authority upon a judge or jury, in violation of Article II, Section 1 of the Missouri Constitution, thereby denying defendant due process of law. The trial judge overruled the motion.

Defendant also filed two motions to suppress evidence. The first which sought to exclude from evidence an oral confession to the crime made by defendant to Deputy Juvenile Officer Smith was sustained by the court and such evidence was excluded. The second motion to suppress sought to exclude as evidence the testimony of the victim for the reason that she had testified at the certification hearing, held pursuant to § 211.071 on June 23, 1977, and that, therefore, she was prohibited from testifying at the trial by reason of § 211.271(3), which section provides, in part, that all evidence given in cases under chapter 211 is not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under chapter 211. This motion was overruled by the trial court.

The case went to trial on November 30, 1977. The victim testified, over the objection of the defendant for the reasons given in his motion to suppress her testimony. She testified that she was 13 years old on February 14, 1976. Her testimony detailed the two rapes by the defendant, the threats to kill her, the beatings, being cut by defendant’s knife, and the identification of the defendant as the person who had beaten and raped her. Much of this testimony was similar to the testimony she had given at the juvenile certification hearing. Her testimony made a submissible case of rape on both counts. The victim identified the bloodstained clothing that she had worn at the time of the attack. The clothing was admitted into evidence and passed to the jury, over defendant’s objection that the clothing she wore at the time of the rape was immaterial and prejudicial.

Dr. McKaskle then testified that he examined the victim on February 14, 1976, in the emergency room of the Pemiscot County Hospital. In addition to his visual examination, three laboratory tests were performed, which were, 1) acid phosphatase, 2) urine, and 3) drop slide test of vaginal secretions. He testified that the victim had been beaten, her lips were bruised and swollen, her cheeks were bruised, and there were hemorrhages under the skin on her neck and chest. She had a cut on her left index finger, an abrasion on her left knee and dirt on her knee and buttocks. Her hymen was edematous, and her vagina was very red. The girl was in a state of semi-shock. He testified that evidence of male ejaculation, consisting of acid phosphatase was found in the acid phosphatase test, and that male sperm was found in the drop slide test.

On cross-examination, it was learned that Dr. McKaskle had not performed the acid phosphatase and urine tests as they had been run by Mr. Trowbridge, the chief technician at the laboratory. Defendant objected, and requested that the testimony relative to those two tests be stricken. No other relief was requested by the defendant on this issue. After other testimony for the state and for the defendant, that is not relevant here, both sides rested their ease.

Written instructions for the jury were then prepared. Defendant submitted instructions No. D-A and D-B, which were refused by the court. Instruction No. D-A reads as follows:

“As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 14th day of February, 1976, in the County of Pemis-cot, State of Missouri, the defendant inserted his sexual organ into the sexual organ of (name deleted by us to protect the identity of the victim), and
Second, that at that time (victim) was less than 16 years of age, then you will find the defendant guilty under Count I of rape.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

If you do find the defendant guilty under Count I of rape, you fill fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than two years’ imprisonment.”

Instruction No. D-B reads the same as D-A except that it applied to Count II of the information.

Instruction No. 5 reads as follows:

“As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on the 14th day of February, 1976, in the City of Caruthersville, County of Pemiscot, State of Missouri, the defendant inserted his sexual organ to any extent into the sexual organ of (victim), and
Second, that at that time (victim) was less than 16 years of age, then you will find the defendant guilty under Count I of rape.

However, if you do not find and believe frofe the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.

If you do find the defendant guilty under Count I of rape, you will fix his punishment at imprisonment by the Department of Corrections for a term fixed by you, but not less than two years nor more than life imprisonment.”

Instruction No. 7 read the same as Instruction No. 5 except that it applied to Count II of the information.

The jury, after receiving all instructions, returned a verdict of guilty on each count and recommended a punishment of life imprisonment. Defendant, on appeal, raises five points of claimed error which are as follows:

“POINT ONE

The order of the Juvenile Court of Pemis-cot County waiving jurisdiction over appellant under Missouri Revised Statute section 211.071 entails error and/or an abuse of discretion on the part of the Juvenile Court judge because reasons stated by the court for waiver are inadequate, are unsupported by findings of fact, and are unsupported by any competent evidence.

A) The reasons stated by the court for transfer of the juvenile were inadequate legal bases for waiver of Juvenile Court jurisdiction and deprived appellant of the right to due process of law as guaranteed by the fourteenth amendment to the United States Constitution and by Article One Section Ten of the Missouri Constitution.

B) The reasons stated by the court for finding that the juvenile was not a proper subject to be dealt with under the juvenile code are inadequate because they are not supported by findings of fact.

C) The order dismissing the original exclusive jurisdiction of the Juvenile Court was void because it was not supported by any competent evidence.

D)This court should not feel compelled to uphold the transfer order by the Pemis-cot County Juvenile Court because appellant has undergone a trial under the general law, has advanced in age, or because of the subsequent elapse of time.”

“POINT TWO

The trial court committed reversible error when it overruled defendant’s motion to dismiss and when it refused defendant’s MAI-CR 6.42 modified instruction, in that section 559.260 Revised Statutes of Missouri is unconstitutional because it does not prescribe a maximum punishment, thus allowing the court and the jury to engage in a legislative power in violation of Article II Section 1 of the Missouri Constitution and the fourteenth amendment of the Constitution of the United States regarding due process of the law and further MAI-CR 6.42 was inconsistent with the offense charged in that the instruction did not conform to the precise language of section 559.260 Revised Statutes of Missouri.”

“POINT THREE

The court committed reversible error when it overruled defendant’s motion to suppress the testimony of the victim and further erred when it overruled defendant’s objection to the testimony of the victim when an objection had already been made at the juvenile transfer hearing, in that section 211.271 Revised Statutes of Missouri prohibits ‘all evidence given’ at the juvenile hearing from later being used at a criminal trial, or otherwise.”

“POINT FOUR

The court committed reversible error when it overruled defendant’s objection to the introduction into evidence of the blood stained jacket and blouse of the victim and further erred when it overruled defendant’s objection to allowing the items to be circulated within the jury box, in that the evidence was immaterial to the charge of statutory rape and the evidence tended to inflame the prejudices of the jury and confuse the issues before the jury.”

“POINT FIVE

The court committed reversible error when it overruled defendant’s objection to the testimony of Doctor McKaskle regarding forensic examinations, when on cross-examination two tests were shown to be hearsay, in that the bad faith direct examination by the prosecutor was designed to avoid the hearsay nature of the evidence, of which the prosecutor was aware.”

We discuss and rule on each of defendant’s points in the order in which they are listed.

POINT ONE

Defendant did not, at or before time of trial in the Circuit Court of New Madrid County, file any motion to quash or dismiss the information for any alleged defects in the juvenile proceedings, nor did he file any motion to remand for further juvenile proceedings. It was incumbent on defendant to raise any defect or objection, constitutional or otherwise, which might refer to the waiver proceedings in juvenile court, in the circuit court before time of trial, by motion to quash the information or to remand to juvenile court for further proceedings there. Having failed to do so, all alleged errors in point one have been waived. Richardson v. State, 555 S.W.2d 83, 87 (Mo.App.1977). See also Jefferson v. State, 442 S.W.2d 6, 12-13 (Mo.1969).

Even if such alleged errors had not been waived, there was substantial evidence in the record of the juvenile waiver hearing to establish and support each and every finding of the juvenile court in its order waiving jurisdiction. § 211.071 entrusts the determination of whether or not to relinquish juvenile jurisdiction to the discretion of the juvenile judge. It is true that such discretion has legal limits, and that the judgment waiving jurisdiction must be accompanied by a statement of reasons and supported by facts in the record so that a meaningful review is possible. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The standard of review is whether or not, in reaching its conclusion to waive jurisdiction, the juvenile court, in view of the totality of the relevant circumstances, abused its discretion. State v. Kemper, 535 S.W.2d 241, 247 (Mo.App.1975). See also concurring opinion of Donnelly, C. J., in State ex rel. T.J.H. v. Bills, 504 S.W.2d 76, 83 (Mo. banc 1974).

Relevant factual criteria which have been used by the courts as a basis for such discretion are 1) whether the juvenile’s age, maturity, experience and development are such as to require prosecution under the general law, Coney v. State, 491 S.W.2d 501, 512 (Mo.1973), 2) whether or not the juvenile had a mental disease or defect which would prevent him from knowing or appreciating the nature, quality or wrongfulness of his conduct and which would render him incapable of conforming his conduct to the requirements of the law, State v. Kemper, supra, at 249, 3) whether or not the nature and seriousness of the juvenile’s conduct constitutes a threat to the community, State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377 (Mo. banc 1968), 4) whether or not the act committed by the juvenile was done in a violent and vicious manner, Coney v. State, supra, at 512, and, 5) whether or not there is a reasonable likelihood that like further conduct will not be deterred by continuing the juvenile under the juvenile law process, State ex rel. T.J.H. v. Bills, 495 S.W.2d 722, 728 (Mo.App.1973). The Bills’ decision further holds that any factor which tends to predict the suitability or unsuitability of the juvenile law process for rehabilitation of the juvenile is relevant to the determination of whether he is a proper subject to be dealt with under the law. In this case, there was evidence that the conduct of defendant toward the victim was vicious, violent, and premeditated, and that no juvenile facilities existed that could reasonably be expected, within the maximum time when he could be confined there, to rehabilitate him. Further there was evidence that he needed to be in a structured environment, that he did not choose to adjust to the normal demands of society, and that there was no reasonable likelihood that similar future conduct would be deterred by continuing him under the care, protection and discipline of the juvenile process.

We hold that the juvenile judge reasonably concluded, considering the totality of the circumstances, that defendant should be dealt with under the general law, rather than sheltered within the benign, rehabilitative structure of the juvenile code for a period limited, at the most, to four years and two months.

POINT TWO

Defendant urges that the trial court committed reversible error when it overruled his motion to dismiss for the alleged constitutional deficiency of § 559.260 in failing to include a maximum punishment upon conviction of the crime of rape, when it gave instructions 5 and 7 to the jury (MAI-CR 6.42) and when it refused to give instructions D-A and D-B (MAI-CR 6.42 modified). In support of his point, defendant alleges that § 559.260 is unconstitutional in that it does not prescribe a maximum punishment, thus delegating legislative power to the court and jury in violation of Article II, Section 1 of the Missouri Constitution and the 14th Amendment to the Constitution of the United States. This argument is not persuasive. § 559.260, which provides a two year minimum sentence on conviction of rape, but does not provide a maximum must be read in conjunction with § 546.490 which provides in part “whenever any offender is declared by law punishable, upon conviction, by imprisonment in the penitentiary for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed, . . . .” Therefore, the maximum punishment allowable for conviction of the crime of rape is life imprisonment, or for any number of years not less than two, so it naturally follows that § 559.260, when read with § 546.490, is constitutional and does not delegate the legislative power of prescribing minimum and maximum punishment for crimes to a judge or a jury. The trial court was correct in overruling defendant’s motion to dismiss.

We also conclude that the trial court was correct in giving instructions 5 and 7 (MAI-CR 6.42) and in refusing instructions D-A and D-B (MAI-CR 6.42 modified). MAI-CR instructions are required to be given where applicable, and the trial court would have committed error had it failed to give such instructions. State v. Dodson, 556 S.W.2d 938, 951 (Mo.App.1977). See also Rule 20.02(a), (c) and (e). We hold that MAI-CR 6.42 was the applicable instruction to give in this case on Counts I and II (instructions 5 and 7) as such instructions correctly stated the law under the submissi-ble facts of the case. They prescribed a minimum punishment upon conviction (two years) and a maximum punishment (life) and properly delineated the elements of the crime. In contrast, it would have been error to give instructions D-A and D — B, offered by defendant, as such instructions did not include the statutory maximum punishment, State v. Duddrear, 309 Mo. 1, 5, 274 S.W. 360, 361 (1925), and would have let the jury fix the punishment without judicial reminder of the statutory maximum fixed by the legislature.

For the reasons stated, the trial court did not err in overruling defendant’s motion to dismiss, in giving instructions 5 and 7, and in refusing instructions D-A and D-B.

POINT THREE

Defendant, in this point, contends that the trial court erred when it permitted the victim to testify, over the objection of defendant, because she had previously testified to basically the same facts at the juvenile waiver hearing. Defendant bases his argument on § 211.271(3), which states, “after a child is taken into custody as provided in Section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter”.

In effect, what defendant is saying here is that the victim, after having testified at the waiver hearing, was incompetent to testify at the trial. If he is correct, the judgment must be reversed, as there was no evidence submitted to the jury on the issue of criminal agency of the defendant other than the victim’s testimony. This is a question of first impression in Missouri. The issue was commented on by Judge Finch in his concurring opinion in State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 378 (Mo. banc 1968), where he stated “[AJlthough the statute says the evidence given in the juvenile proceedings is not lawful or proper evidence against the child for any purpose whatsoever, this does not necessarily mean, in my judgment, that the lips of one who testified in the juvenile proceedings are sealed so that he. may not be a witness in a subsequent criminal proceeding”.

It is our opinion that the comments of Judge Finch were well reasoned and that they are consistent with the holdings of other jurisdictions on the same issue. In People v. Hammond, 27 Mich.App. 490, 494-495, 183 N.W.2d 623, 625-626 (1970), the Michigan Appellate Court was faced with the issue of whether certain physical evidence, photographs and other demonstrative evidence, which had been offered and received in evidence in the juvenile court proceeding, could be used as evidence at trial in the adult court after waiver of juvenile jurisdiction. The Michigan statute provided: “A disposition of any child under this chapter, or any evidence given in such case, shall not, in any civil, criminal or any other cause or proceeding whatever, in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter”.

The Michigan court concluded that the intent of the statute was to prohibit the actual testimony given at the juvenile hearing from being used in any other proceedings, except a subsequent case against the child in the juvenile court, and was not meant to preclude physical evidence, nor exclude a witness who testified at the juvenile proceedings from testifying on the same subject matter at a subsequent adult trial. The court concluded that what is forbidden was the use of the actual testimonial evidence, taken from the transcript of the juvenile hearing, as either substantive evidence or for the purposes of impeachment, at a subsequent trial in adult court.

The conclusion reached by the Michigan court is in accord with common sense. Normally, there are few eye-witnesses to a crime, and in the ease of rape, usually only the rapist and the victim are present. The few witnesses who do exist, such as police officers, doctors, laboratory technicians and the victim, will often be required to testify at the waiver hearing in juvenile court, if the juvenile and the state are to have a full and fair hearing there. To say that if the juvenile court waives jurisdiction those witnesses must remain mute at a subsequent criminal trial would render the waiver proceedings meaningless, as the prosecuting attorney would not have any witnesses who would be allowed to testify in the criminal trial. We find nothing in § 211.271(3) that prevents a prosecuting attorney from using witnesses in the state’s case who had earlier testified at a juvenile waiver hearing on the same subject matter. See also Gallegos v. People, 145 Colo. 53, 358 P.2d 1028 (1960), rev’d on other grounds, 370 U.S. 49 (1962) for additional comments on the same subject matter.

We do not believe that our conclusion on this issue does violence to the purposes of the statute. Statutes such as § 211.271(3) are designed to “hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past”. State v. Guerrero, 58 Ariz. 421, 430, 120 P.2d 798, 802 (1942). However, the purpose of the juvenile waiver hearing is to determine if youthful errors are, in fact, “youthful”. Implicit in the waiver of jurisdiction by the juvenile court in this case was the conclusion that a vicious, premeditated, unprovoked assault upon a thirteen year old girl, during which assault she was beaten until she bled, was cut with a knife, and was raped three times, was not a “youthful error”. The purpose of the statute was, therefore, not violated in the case by permitting the victim to testify at time of trial after she had testified to substantially the same facts at the juvenile waiver hearing. In our opinion, the action of the trial court, in overruling defendant’s objection to the testimony of the victim, at the time of trial, was proper, and we so hold.

POINT FOUR

Defendant next contends that the trial court erred in admitting into evidence, over the objection of the defendant, the bloodstained jacket and blouse of the victim, which she had been wearing on the night of the assault. He argues that the blood on those items was from her face and hand, and not from her vagina, and was, therefore, immaterial and prejudicial since the prosecutor had not charged the defendant with forcible rape. We reject this argument. The victim testified at trial that she had been to a movie and was walking to her grandmother’s house; that she was grabbed from behind by the defendant, who threatened her with a knife; that she was taken to a shed where she was beaten in the face; that defendant bit her lip until it bled; that her finger was cut by defendant’s knife; and, that she was the victim of multiple rapes. The bloodstained clothing was admissible, as it corroborated the victim’s testimony as to the entire series of events. A defendant cannot expect to exclude acts of brutality perpetrated in the commission of a crime and performed as part of the very means of accomplishing it. Clothing is admissible in evidence if it tends to prove some material fact in issue, such as the connection of the defendant with the crime. State v. Swinburne, 324 S.W.2d 746, 752 (Mo. banc 1959). The clothing did so in this case and the trial court properly exercised its discretion by admitting it.

POINT FIVE

Defendant contends, as his final point on appeal, that the trial court erred in overruling his objection to the testimony of Dr. McKaskle regarding forensic examinations, for the reason that on cross-examination it was learned that two of the three tests had been made by a laboratory technician and that the doctor’s testimony as to the results of the two tests was hearsay. Defendant deduces from this set of facts that the prosecuting attorney knew that such testimony would be hearsay, proceeded in bad faith to elicit such hearsay testimony, and, for such reason, should be punished by having this court declare prejudicial error. We are not inclined to do so.

At the trial, Dr. McKaskle testified that three laboratory tests were performed from the victim’s body secretions. These tests were an acid phosphatase test, a urinalysis, and a drop slide test of vaginal secretions. He testified that acid phosphatase is a chemical that is manufactured in a male’s prostate gland. He was then asked if any of this substance was found in the body of the victim. Defendant’s counsel then objected on the grounds of hearsay. There was nothing before the court, at that time, to indicate that such testimony was hearsay, and defendant’s counsel did not inform the court why he thought the testimony was hearsay. Later, on cross-examination, Dr. McKaskle testified that he had not performed the acid phosphatase and urinalysis tests, whereupon defendant’s counsel requested that any testimony concerning such tests be stricken. The judge so ordered, and ordered the jury to disregard any testimony concerning those tests. Defendant did not ask for a mistrial, or any other relief, other than what he asked for and received.

Since defendant received all of the relief he asked for from the trial court, he has not preserved anything for review on this point. State v. Platt, 525 S.W.2d 637, 641 (Mo.App. 1975). Not only did the court strike the testimony of the two tests, but Dr. McKas-kle had personal knowledge of the third test (the drop slide) and, from such test, found male sperm in victim’s vaginal secretions, which was the whole point of the testimony concerning the laboratory procedures. Since this was sound evidence supporting the state’s allegation of sexual penetration of the body of the victim, the alleged impact of so-called prejudice from the brief remarks of Dr. McKaskle regarding hearsay information received by him, which remarks were ordered stricken by the court following objection, loses its possible sting. The point is not well taken.

We have carefully reviewed the record and find no prejudicial error. We were especially mindful of the fact that the defendant was fifteen years old at the time of the crimes and that two life sentences were pronounced against him, both of which facts are serious matters which necessitate meticulous review. At the same time, we are mindful of the interests of society and of the right of the thirteen year old victim to have the person who beat her severely and raped her brought to the bar of justice. We have found that the defendant was properly brought before the trial court and the jury, after a valid waiver of juvenile court jurisdiction, and that no prejudicial error occurred at the trial court level.

The jury verdict of guilty on both counts and recommending life imprisonment is supported by overwhelming evidence, and should not be disturbed. The judgment is affirmed.

FLANIGAN, C. J., and BILLINGS and MAUS, JJ., concur.

      . Unless otherwise noted, all references to Missouri Supreme Court Rules are to V.A.M.R.

      . Unless otherwise noted, statutory references are to RSMo 1969, V.A.M.S.


author: COOPER, Justice.

text:
    Elif GROSS, Appellant, v. NATIONAL HEALTH ENTERPRISES, INC., and Underwriters Auditing Company, Appellees.
    Supreme Court of Tennessee.
    June 11, 1979.
    Joseph B. Yancey, Knoxville, for appellant.
    Jerry A. Farmer, Poore, Cox, Baker, Ray & Byrne, Knoxville, for appellees.
   OPINION

COOPER, Justice.

This is an action to enforce an agreement comprising a claim for benefits allegedly due appellant, Elif Gross, under the Workmen’s Compensation Act. The chancellor concluded the agreement was not binding on either party since it had not been approved by a court of competent jurisdiction, and dismissed the action. This appeal resulted.

Elif Gross sustained a back injury in an on-the-job accident which occurred on March 31, 1973. She was paid temporary total disability benefits from the date of her accident until she returned to work in late October, 1973. An action to recover further workmen’s compensation benefits was filed by appellant on March 3, 1974. This action was dismissed on March 10, 1975, “for lack of prosecution.”

In April, 1976, counsel for appellant reopened negotiations toward settlement of the workmen’s compensation action. On April 27, 1976, the appellee, National Health Enterprises through the appellee Underwriters Adjusting Company, offered to pay appellant $3,690.40 in addition to benefits previously paid by the appellees in settlement of the claim. Counsel for appellant accepted the settlement offer by letter dated May 29, 1976. Counsel also indicated that “Mrs. Gross will execute a Settlement Agreement . . . regarding and consu-mating [sic] this Workman’s Compensation claim, with the further agreement that it will be binding without court approval.” Thereafter, on June 17, 1976, appellee’s attorney sent appellant’s attorney a proposed order of settlement, which was to be approved by counsel and be submitted to the Circuit Judge of Knox County for approval. The proposed order, which was filed as an exhibit in this action, was never approved by appellant’s attorney and was never submitted to the circuit judge.

On July 19, 1976, counsel for appellee repudiated the settlement offer. In explanation, counsel stated that since making the offer of compromise, he had learned of the dismissal of the workmen’s compensation action and also had learned that Mrs. Gross had testified in an earlier court action that she had no residual disability from the injury sustained by her on March 31, 1973. The present action to enforce the settlement agreement then was brought by appellant.

Appellant insists that once an agreement is made in settlement of a compensation case, a party cannot repudiate the agreement but is bound to submit the agreement to a court of competent jurisdiction for approval. In short, once a settlement agreement is made in a workmen’s compensation case, the parties are bound to comply with the terms of the agreement unless and until a court of competent jurisdiction concludes that the terms of the agreement are not in accord with the provisions of the Workmen’s Compensation Act. There is much to commend this position but it is not in accord with the express limitations placed on the efficacy of a settlement in a workmen’s compensation case by T.C.A. § 50-1006, nor with the construction placed on that statute by this court.

T.C.A. § 50-1006 gives interested parties “the right to settle all matters of compensation between themselves,” but expressly provides that “all settlements, before the same are binding on either party, shall be reduced to writing and shall be approved by the judge of the circuit court or of the chancery court or criminal court of the county where the claim for compensation is entitled to be made.”

In Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928, the employee (Hines) and the employer’s insurance carrier entered into an agreement on September 24, 1930, settling a workmen’s compensation claim under which the employee was to receive fifty percent of his average weekly wages “until terminated in accordance with the provisions of [the Workmen’s Compensation] Act.” The parties did not submit the agreement to a court of competent jurisdiction for approval; however, the insurance carrier made payments under the agreement until December 28, 1932, when the insurance carrier became insolvent. Hines, brought suit against his employer to recover the balance due under the agreement. In refusing to enforce the agreement, this court had the following to say:

The settlement before us was not submitted nor approved by the court. It was accordingly not binding on the insurer, the employer, nor the employee. United States Fidelity & Guaranty Co. v. McBride, 165 Tenn. 580, 56 S.W.(2d) 736; Wilkinson v. Johnson City Shale Brick Corp., 156 Tenn. 373, 299 S.W. 1056, 2 S.W.(2d) 89; Mangrum v. Aetna Life Ins. Co., 153 Tenn. 209, 280 S.W. 1011; Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395.
Under these decisions, the settlement being unapproved, the matters in controversy between petitioner and his employer remained open to litigation, including the question of the employer’s liability and the amount of that liability, if any was ascertained.

The settlement sought to be enforced in this action was not approved by a judge of competent jurisdiction; consequently, under the plain wording of T.C.A. § 50-1006 and the case authority cited above, the settlement agreement in this case was not binding on the employer, the insurer, nor the employee for any purpose.

Decree affirmed. Costs of the appeal are adjudged against the appellant, Elif Gross, and her surety.

FONES, BROCK and HARBISON, JJ., and FRANKS, Special Judge.

      . While the workmen’s compensation action was pending, appellant successfully prosecuted a tort action against appellee for an injury to her back sustained in a fall on appellee’s premises on January 11, 1974. At the time of her injury, appellant was employed as a private duty nurse by a patient in appellee’s nursing home.


author: BROCK, Justice.

text:
    Edgar V. PARKER, Petitioner, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Respondent.
    Supreme Court of Tennessee.
    June 11, 1979.
    Petition on Rehearing Denied July 23, 1979.

      Charles G. Taylor, III, Knoxville, for petitioner; Ayres, Parkey, Skaggs & Ware, Knoxville, of counsel.
    Arthur G. Seymour, Jr., W. Kyle Carpenter, Knoxville, for respondent; Frantz, McConnell & Seymour, Knoxville, of counsel.
   OPINION

BROCK, Justice.

The plaintiff, Edgar Parker, seeks to recover from the defendant, Provident Life and Accident Insurance Company, the benefits provided under a group insurance policy for the loss of a leg. The plaintiff contends that he accidentally stepped upon a nail that penetrated his shoe causing a puncture wound of his foot and eventually the amputation of his leg after gangrene developed from the wound. The defendant argues that the loss is excluded from coverage under the policy. The Chancellor tried the case without a jury and found the issues in favor of the plaintiff and awarded a recovery. Upon appeal, the Court of Appeals concluded that the loss came within the exclusion clause of the policy and reversed the judgment of the Chancellor and dismissed the complaint.

I

The “insuring clause” of the policy is as follows:

“If an employee sustains accidental bodily injuries . . and as the result of such injuries suffers any of the losses named in the table of losses below within ninety (90) days after the date of the accident, the insurance company will pay to the beneficiary, subject to all the terms, conditions and limitations of this policy, a benefit for the loss determined in accordance with the table of losses

Under a section entitled “Limitations and Exclusions,” the policy further provides:

“The benefits provided above will not be payable for any loss caused directly or indirectly, wholly or partly, by
(a) bodily or mental infirmity, ptomaines, bacterial infections (except infections which shall occur simultaneously with and through a cut or wound sustained through accidental means), any other kind of disease, or hernia in any form; . . . ”

On September 10, 1975, the plaintiff discovered a puncture wound of his right foot which he contends was caused by a nail or tack which penetrated the sole of his shoe when he accidentally stepped on it. Because he suffered from diabetes and arteriosclerosis of long standing, the sensation in his foot was diminished, so that, this injury was not discovered immediately upon its occurrence. It is shown, however, that the plaintiff had been limping on September 9, 1975.

On the day his wound was discovered, the plaintiff was examined and treated by Dr. Simmons whose testimony was the only medical evidence offered at the trial. Despite Dr. Simmons treatment, bacterial infection of the plaintiff’s foot developed into gangrene, necessitating the amputation of his leg on December 5, 1975. Dr. Simmons testified that the bacterial infection entered through the nail wound in plaintiff’s foot at the time he stepped on the nail. He testified that the diabetes and arteriosclerosis from which the plaintiff suffered at the time of the accident had an “indirect effect” on the gangrenous condition that resulted from the nail puncture wound of his foot. Asked if the nail injury would have been trivial if the plaintiff had not been suffering from diabetes and arteriosclerosis, the doctor testified: “I couldn’t say . for sure.” When further asked if the plaintiff’s nail puncture wound would have caused the amputation of his leg if he had not been suffering from diabetes and arteriosclerosis, Dr. Simmons testified:

“It might not, but that’s something I certainly couldn’t make a definite statement on. I couldn’t say yes or no on that to be sure.”

At another point, the doctor testified that the diabetes and arteriosclerosis “. was an indirect factor.” But, Dr. Simmons emphatically characterized the nail puncture wound of the plaintiff’s foot as “the direct cause of the amputation.”

The Chancellor found from this evidence that the plaintiff had lost his leg “as the result of” an accidental bodily injury to his foot and that such loss was not “caused directly or indirectly, wholly or partly, by bodily . . . infirmity . (or) any other kind of disease. . . . ” The Court of Appeals, however, reached a contrary conclusion, holding that the plaintiff’s loss was “caused directly or indirectly, wholly or partly,” by the plaintiff’s bodily infirmities or diseases of diabetes and arteriosclerosis.

II

In Metropolitan Life Ins. Co. v. Smith, Tenn., 554 S.W.2d 123 (1977), this Court reversed the judgment of the Court of Appeals; and, the opinion of the Court of Appeals in the instant case shows that it believes that our opinion in Smith requires a conclusion herein that the insured’s loss of his leg was excluded from coverage because he suffered from diabetes and arteriosclerosis. Thus, the Court of Appeals in the instant case says:

“This Court had held (in the Smith case) that exclusionary clauses which afforded no coverage for ‘loss caused directly or indirectly’ by other events were to be construed to mean that these other events must have ‘proximately caused or concurred with the accident in causing death’ or was a ‘contributing proximate cause’ to the loss . . . . As we understand the opinion of the Supreme Court, . . (the Smith construction of such clause) was rejected and it was held that in matters such as this, the exclusionary language of the policy should be applied as written as ‘there is no judicial duty but to give the language its usual and ordinary meaning.’ The policy in question in simple plain language provides it will not afford coverage for a loss caused directly or indirectly, wholly or partly by bodily infirmity.”

The Court of Appeals then applied the “Smith construction” of such exclusion clauses to the evidence in the instant case and, finding no significant difference between the evidence in the Smith case and in the instant case, concluded that the plaintiff’s loss was excluded from coverage.

We think it cannot fairly be said that we departed in Smith from the principles established in our earlier decisions that in order for bodily infirmity or disease of an insured who suffers an accidental injury to preclude coverage under a policy which excludes losses “caused directly or indirectly, wholly or partly” by such infirmity or disease, it must be shown that the bodily infirmity or disease was a proximate cause of the loss. See, Maness v. Life & Casualty Ins. Co., 161 Tenn. 41, 28 S.W.2d 339 (1930); Britton v. Prudential Insurance Co. of America, 205 Tenn. 726, 330 S.W.2d 326, 82 A.L.R.2d 605 (1959); North American Ins. Co. v. Ellison, 37 Tenn.App. 546, 267 S.W.2d 115 (1954).

In our opinion, the Smith case and the instant case are distinguishable upon the basis of the evidence adduced in each. In the Smith case, the insured, Dr. Smith, had expired from congestive heart failure, resulting from a buildup of fluid or blood in his lungs, following an accidental traumatic injury to his head. But the medical proof in that case showed that Dr. Smith had been suffering from severe, advanced arteriosclerosis to such an extent that one coronary artery was totally blocked and the other had 60 to 80 percent blockage, which was revealed upon autopsy examination. The autopsy further showed that Dr. Smith had “mild to moderate” subarachnoid hemorrhage in the occipital area due to the accident which he had suffered to his head. He also had a laceration and some hemorrhaging into the skin of his scalp. The insured’s attending physician testified that in his opinion the traumatic injury sustained by the insured was the “predominant cause of death;” but, throughout his testimony he stated that the advanced coronary artery disease was also a causative factor in producing death. More importantly, he testified that it was the combination of the traumatic injury and the underlying disease that produced death and that in his opinion neither, acting without the other, would have been fatal. In concluding that the trial court was correct in directing a verdict for the insurance company, we noted:

“. .we are unable to find any material evidence from which a finder of fact could conclude that the pre-existing diseases did not contribute in an active and measurable degree to the death, or that death would have occurred had the coronary artery disease not been a substantial causative factor. Under these circumstances, we are of the opinion that the insurance carriers are not liable under the terms of their contracts.” (Emphasis added.) 554 S.W.2d at 126.

It is true that in the Smith case we said, as noted by the Court of Appeals, that “there is no judicial duty but to give the language its usual and ordinary meaning.” We adhere to that view; but a corollary rule of construction is also applicable, i. e., when the courts have repeatedly interpreted certain words in legal documents as having a particular meaning and the drafters of such legal documents continue to use such words with knowledge of the interpretation placed upon them by the courts it will be assumed that the draftsmen in using such words did so knowingly with the intention that such judicial gloss will be placed upon them. As held by the Missouri court in Gage v. Connecticut General Life Insurance Company, Mo.App., 273 S.W.2d 761, 47 A.L.R.2d 1234 (1954), a settled and widely accepted meaning accorded to a particular phrase is persuasive in the interpretation of an insurance policy thereafter using such phrase. See, also, Harris v. State Farm Mutual Automobile Insurance Co., 232 F.2d 532 (6th Cir. 1956), cert. denied 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49 (1956).

The courts of this State have repeatedly interpreted the word “cause,” when used in exclusion clauses of insurance policies substantially equivalent to the exclusion clause in the policy now before the Court,'to mean “proximate cause.” Maness v. Life & Casualty Ins. Co., supra; Fireman’s Fund Insurance Company v. Glanton, 224 Tenn. 213, 452 S.W.2d 861 (1970); North American Ins. Co. v. Ellison, supra. This interpretation accords with that given to such phrases by courts of other jurisdictions, whose holdings are summarized as follows:

“In accident insurance the question whether the insurer is liable for an injury depends on the proximate cause of the loss. The term ‘proximate cause,’ as here used, means the same as in other insurance cases, and a provision requiring loss to be caused by accident ‘independent of all other causes’ is equivalent to a provision requiring it to be the proximate cause.” 44 Am.Jur.2d Insurance § 1215 (1969).

We adhere to the view' stated by this Court in the Glanton case, supra, as follows:

“In Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 158 So.2d 667 (1963), the Supreme Court of Alabama in an opinion that dealt with a policy providing double indemnity benefits for ‘death resulting directly and solely from accidental means, exclusive or independent of all other causes’ said that ‘if the accident aggravated a disease and hastened the death of the insured, the accident is yet considered the proximate cause of the insured’s death, notwithstanding the gravity of the disease or that the accidental injury would not have been fatal but for the infirmity.’ In the course of the opinion the Court observed:
‘If an injury starts a chain reaction resulting in death, recovery may be had even if one of the links in the chain is old age, frailty and some links are dormant diseases or physical conditions without which the chain would be broken.’ ” 452 S.W.2d at 865.

In the Glanton case, supra, this Court concluded that the cause of the insured’s death was an automobile accident and that

“. - . the infirmities with which he was then afflicted were but conditions which gave him a greater susceptibility to them than would have been the case had he been in sound health when he sustained his injury. Within the meaning of the policy the accident resulted in the death of the insured ‘directly and independently of all other causes.’ ” 452 S.W.2d at 865.

Moreover, we discern very little difference between the connotation of the word “cause” as interpreted by the courts and the “plain and ordinary meaning” given to the same word in ordinary usage. Thus, the word “cause” is defined in the latest edition of the American Heritage Dictionary of the English Language as follows:

“That which produces an effect, result, or consequence; the person, event, or condition responsible for an action or result.”

Applying the foregoing principles to the interpretation of the exclusion clause in the instant policy, we conclude that the evidence does not preponderate against the plaintiff, but, on the contrary, supports the conclusion of the Chancellor that the loss of the insured’s leg in this case was the result of the accidental nail injury to his foot and was not caused directly or indirectly, wholly or partly, by his pre-existing arteriosclerosis and diabetes. The treating physician, Dr. Simmons, who supplied the only medical evidence in this record, testified that the nail puncture wound to the plaintiff’s foot “was the direct cause of the amputation.” Moreover, Dr. Simmons expressly declined to state that the nail puncture wound would not have caused the amputation of the plaintiff’s leg if he had not been suffering from diabetes and arteriosclerosis. Thus, the medical evidence in the instant case contrasts markedly from that in Metropolitan Life Ins. Co. v. Smith, supra, in which the medical expert had testified that the combination of the traumatic injury and the underlying disease produced death and that in his opinion neither, acting without the other, would have been fatal. As noted by Mr. Justice Harbison in Smith, it is such differences in the evidence in various cases, rather than the application of different rules of law, which account for the apparent disharmony in the decided cases which have dealt with this problem.

Accordingly, the judgment of the Court of Appeals is reversed and that of the Chancellor affirmed.

FONES, COOPER and HARBISON, JJ., and HUMPHREYS, Special Judge, concur.


text:
    Benny Joe FEATHERS, Appellant, v. Fred DUNCAN and Travelers Insurance Company, Appellees.
    Supreme Court of Tennessee.
    June 11, 1979.
    Thomas E. Mitchell, James T. Milliken, Johnson City, for appellant.
    Joseph 0. Fuller, Fuller & Tunnell, J. Robert Boatright, Kingsport, for appellees.
   OPINION

COOPER, Justice.

This is a workmen’s compensation action in which the only issue is whether the injured worker was an employee or a casual worker within the definition of those terms in the Workmen’s Compensation Act. The chancellor found that appellant was a casual worker and dismissed the action. We affirm.

Appellee, doing business as the Jordan Carpet Service, was engaged in carpet sales, installation and service. The State of Tennessee condemned the property on which appellee’s business was located, forcing ap-pellee to relocate. Appellee purchased a brick building and undertook to have a part of it paneled and a roof for a carpet showroom constructed within the building. Ap-pellee requested the local union hall to send two carpenters to do the necessary remodeling. The union selected appellant and his brother, who were put to work by appellee. They were to be paid by the hour at the union scale. No deductions were made for social security or income tax. The necessary tools for doing the carpentry work were to be furnished by appellant. On the third day of his employment, appellant was injured in a fall from a stepladder belonging to appellee.

A casual employee is defined as “one who is not employed in the usual course of trade, business, profession, or occupation of the employer.” T.C.A. § 50-906(b). As a general rule, a worker employed for the exclusive purpose of remodeling a building, when the remodeling is not part of the normal operations of the employer’s business, is a casual worker under the statutory definition. Freeman’s Furniture Company v. Large, 546 S.W.2d 582 (Tenn.1977); Travelers Insurance Co. v. Dozier, 219 Tenn. 525, 410 S.W.2d 904 (1966). Appellee’s usual and customary business was the sale, installation and service of carpets. So far as the record shows, appellee’s regular employees were never called upon to do carpentry work, either in remodeling or maintenance of premises used by appellee in conducting his business. Appellant tacitly conceded that the carpentry work he was doing for appellant was not in the usual course of appellee’s carpet business, but urged on the chancellor and on this court, that in remodeling the new building, appellant was engaged in a second business— that of a contractor — and that the work he did for appellee was in the usual course of that business, citing Black v. Corder, 217 Tenn. 613, 399 S.W.2d 762. In. the Black case, a combination service station and appliance store proprietor, who hired two construction workers and five helpers to construct a retaining wall and to enlarge the store, was held to be engaged in the construction business. The court pointed out that the project was of “some magnitude,” required considerable time to finish, and that at least seven workmen were employed in the project, justifying a finding by the trial judge that the employer had “in fact gone into the construction business.” The court also pointed out that the required number were employed in the “construction business” to bring it within the terms of our Workmen’s Compensation Statutes.

There is no question but that an employer may be engaged in more than one business or occupation at one and the same time. Mason-Dixon Lines v. Lett, 201 Tenn. 171, 297 S.W.2d 93 (1956); D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947). However, that is not the situation in this case. In contrast to the Black case, the remodeling in this case was of the “one shot” variety, was a small project to be finished within a few days, and appellant and his brother were the only carpenters employed in the project, justifying the rejection by the chancellor of the argument that appellee was in the contracting business as well as the carpet business. Further, if the evidence had justified a finding that appellee was in the contracting business, there is no evidence in the record that appellee had the required number of employees in the “contracting” business to bring it within the terms of the Workmen’s Compensation Act.

Decree Affirmed. Costs incident to the appeal are adjudged against appellant and his surety.

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


author: SHRIVER, Presiding Judge.

text:
    In re ESTATE of B. B. DRINKARD, Deceased. Frances Kathleen DRINKARD, Claimant-Appellee, v. Virginia Rose JENNINGS, Intervening Party-Respondent-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 25, 1978.
    Certiorari Denied by Supreme Court Nov. 20, 1978.
    Dempsey Marks, Marks, Fleming & Marks, Clarksville, for claimant-appellee.
    Frank J. Runyon, Clarksville, for respondent-appellant.
   OPINION

SHRIVER, Presiding Judge.

The Case

Claimant-appellee, Frances Kathleen Drinkard, dissented from the will of her husband, B. B. Drinkard, deceased, and filed a claim against his estate for $25,000.00, evidenced by a check written to her by her deceased husband, and alleging that the amount was owed to her as a debt or, in the alternative, the amount was an inter vivos gift. Virginia Rose Jennings, respondent, only child of the deceased, filed an exception to the claim as an intervening party. The Trial Court found for the claimant and the respondent appealed.

The sequence of events material to this suit are as follows:

On December 22, 1975, the decedent signed a check payable to claimant for $25,-000.00, advising her to let him know before she attempted to cash the check. There was not sufficient funds in decedent’s checking account to cover the check when it was signed. However, the record shows that he had an estate valued at $150,000.00 to $200,000.00.

Decedent died on January 10, 1976.

On January 13, 1976, claimant made inquiries concerning the check and she was advised there were not sufficient funds to cover the check.

Decedent’s will was admitted to probate on January 20, 1976.

On April 21, 1976, claimant-wife dissented from the will.

On April 23, 1976, claimant-wife filed a claim for $25,000.00 against her husband’s estate based on the above described check.

On May 13, 1976, respondent, as an intervening party, excepted to the claim.

In an order filed November 15, 1977, the Trial Court found that the $25,000.00 claim was a just and valid claim on the theories of (1) indebtedness by contract, and (2) indebtedness by reason of gift.

The Proceedings Below

⅞ The Will of B. B. Drinkard, deceased, was admitted to probate by order entered in the County Court of Montgomery County, Tennessee on January 20, 1976, and the petitioner, Northern Bank of Tennessee, was issued letters testamentary.

Thereafter, as hereinabove set forth, the claim of Frances Kathleen Drinkard, widow of B. B. Drinkard, was filed, which claim is in words and figures as follows:

“CLAIM OF FRANCES KATHLEEN DRINKARD AGAINST THE ESTATE OF B. B. DRINKARD, DECEASED
“Petitioner, FRANCES KATHLEEN DRINKARD, says that the estate of B. B. Drinkard, deceased, has an indebtedness to her in the amount of $25,000.00 as a result of the following:
The real estate which was acquired by her deceased husband, B. B. Drinkard, in his and their joint names was acquired by her own funds. In order to partially reimburse claimant for the use of her funds in acquiring said real estate in decedent’s name, decedent, B. B. Drinkard, executed a check payable to claimant’s order in the amount of $25,000.00 dated December 22, 1975, signed by the decedent and drawn on the Northern Bank of Tennessee. At the time of issuing and signing this check and delivering same to claimant, the said B. B. Drinkard did not have sufficient funds in his bank account at the Northern Bank of Tennessee to pay it. Decedent was supposed to have made arrangements to have this check paid, but he never did so prior to his death.
/s/ Frances Kathleen Drinkard
[Acknowledgment]”

This was followed by a petition for an assignment of homestead, dower and a year’s support on behalf of Frances Kathleen Drinkard, widow of the decedent.

Exception to the claim was filed by Virginia Rose Jennings, only child of B. B. Drinkard, deceased, wherein it is stated:

“Virginia Rose Jennings would show that the estate of her late father is not indebted to claimant in any amount other than the amount she is entitled to under the law as a result of her being the widow of her father.”

On August 22, 1978, the claimant filed a motion for leave to amend the claim, said motion being as follows:

“MOTION FOR LEAVE TO AMEND CLAIM
Comes now the Petitioner and moves the Court for an order permitting her to amend her claim filed April 23, 1976 by adding a third paragraph thereto, which will read as follows:
‘In the alternative, Petitioner would show that by signing and delivering said check to Petitioner, the said B. B. Drinkard made a valid inter vivos gift of $25,000.00, which gift his estate, holding said $25,000.00 on a constructive trust, should now be compelled, as a matter of equity, to complete.’
/s/ Dempsey M. Marks Attorney for Petitioner”

The foregoing motion was granted by the Court by order of August 24, 1977.

Proof was taken in the form of a discovery deposition of the claimant and the deposition was ordered filed, it being agreed between the parties that said deposition would be used in the trial of the cause.

Mr. Frank Wenzler, Vice-President of the Northern Bank of Tennessee was called as a witness to testify at the trial on behalf of the claimant. He identified decedent’s signature on the check.

Following the filing of briefs by the respective counsel for the parties and upon motion for a finding of facts, the Honorable Trial Judge, William 0. Beach, filed his Findings of Fact which may be summarized as follows:

Findings of Fact

In discussing the claim as an indebtedness by contract the Court found that the $25,-000.00 check dated December 22, 1975 on which the claim is based bears the genuine signature of decedent, B. B. Drinkard, as shown by the testimony of Mrs. Drinkard and Mr. Frank Wenzler, Vice-President of the Northern Bank, on which the check was drawn; that at the time of Mr. Drinkard’s death, the claimant, Mrs. Drinkard, was the holder of the instrument in question and presently owns said instrument; that there is evidence to support a finding that the check in question was given to Mrs. Drin-kard in satisfaction of what she and her husband saw as her contribution to the marriage and an unwritten partnership respecting the marital properties.

As to the indebtedness by reason of a gift, the Court recites certain facts which constitute proof of the existence of the requisite elements of donative intent and delivery necessary to form a gift inter vivos. The Court further found from the Federal Estate Tax return exhibited to the Court that the decedent was possessed of assets sufficient to place funds in the account before the check was presented so that the check could be paid.

The Final Decree recites, in pertinent part, as follows:

“After consideration of the evidence and the Briefs submitted by counsel for both parties, the Court is of the opinion that the claim of FRANCES KATHLEEN DRINKARD for Twenty-five Thousand Dollars ($25,000.00) against the Estate of B. B. DRINKARD is a just and valid claim on both theories of FRANCES KATHLEEN DRINKARD, that is the theory of an indebtedness owed her by the estate and a theory of a gift to her by her deceased husband.
It is, therefore, ORDERED, ADJUDGED and DECREED that the claim of FRANCES KATHLEEN DRINKARD against the Estate of B. B. DRINKARD in the amount of Twenty-five Thousand Dollars ($25,000.00) is allowed, and the Executor of the Estate of B. B. DRIN-KARD is directed to pay the same.
To all of the above VIRGINIA ROSE JENNINGS excepts and is allowed thirty (30) days within which to perfect her appeal.
Signed this 15th day of November, 1977.
/s/ William O. Beach County Judge”

Assignments of Error

There are three assignments of error, as follows:

“1. The Court erred in allowing appel-lee to amend her claim so as to add an alternative basis to her $25,000.00 claim, that being that the check in question was a gift from decedent to appellee, the amendment being filed some nineteen (19) months after the will was admitted to probate.
2. The Court erred in finding that the $25,000.00 claim was a just and valid claim of appellee on the theory that it was a debt owed her by her husband.
3. The Court erred in finding that the $25,000.00 claim was a just and valid claim of appellee on the theory that it was a gift to appellee by her deceased husband.”

Our Conclusions

This case comes to us for a hearing de novo under the statute, T.C.A. § 27-303, and cases construing said statute, with a presumption of correctness of the Trial Court’s findings unless the evidence preponderates against said findings.

A careful examination of the evidence introduced in this cause leads us to conclude that the findings of fact of the Trial Judge are supported by a preponderance of the evidence; however, we must disagree with the conclusion of the Trial Judge in his decree to the effect that the claim of Frances Kathleen Drinkard for $25,000.00 against the estate of B. B. Drin-kard can be sustained on both theories, that is (1) the theory of an indebtedness owed her by the estate; and (2) the theory of a gift to her by her deceased husband.

This is true for the reason that in our view of the case these two theories are repugnant and cannot stand together as the basis of her claim.

Furthermore, as to the claim based upon the theory of a gift inter vivos, the authorities generally are in accord with the statement contained in 38 Am.Jur.2d, § 65, p. 869, Gifts, where it is said:

“The general rule supported now by nearly all the cases on the subject is that the donor’s check, prior to acceptance or payment by the bank, is not the subject of a valid gift either inter vivos or causa mortis. This is in accordance with the rules established by both the Uniform Negotiable Instruments Law and the Uniform Commercial Code that a check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it. The difficulty with respect to a gift of the donor’s cheek, if the check does not operate as an assignment, is that the mere delivery of the check to the donee or to some other person for him does not place the gift beyond the donor’s power of revocation, prior to payment or acceptance.”

The foregoing is in accord with the provisions of the Uniform Commercial Code, Sections 47-3-101, et seq., T.C.A. (47-3-409).

Section 47-3-104, T.C.A. provides that the form of negotiable instruments may be a draft, or a check, or a certificate of deposit, and defines a check as a negotiable instrument under the statute.

Section 47-3-408, in dealing with “consideration,” provides that want or failure of consideration is a defense against any person not having the rights of a holder in due course, “except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.”

On the other hand, we think the record herein supports the findings of the Trial Judge to the effect that the check in question was given to Mrs. Drinkard in satisfaction of what she and her husband saw as her contribution to the marriage and an obligation. that the husband acknowledged at the time he delivered the check to his wife, the claimant herein.

For example, Mrs. Drinkard, in her deposition, testified in answer to the question: “Did you have any business ventures with your husband?” that in addition to her farm in Southern Illinois of about 300 acres and $13,000.00 in money which she turned over to her husband after their marriage when she was a girl just sixteen years old, she also owned a valuable home in Golconda, Illinois which she said would probably be worth between $50,000.00 and $60,000.00 today and which was lost to her and her husband by his handling of their affairs.

She testified that one child was born to their union which child died previously; that she had suffered from asthma and bronchitis for several years prior to Mr. Drinkard’s death, and that from time to time she went to Mesa, Arizona for her health and that Mr. Drinkard had discussed with her the desirability of buying a home for her in Arizona and this was part of the discussion that lead up to the issuance of the $25,000.00 check. Incidentally, she was 67 years of age at the time, while Mr. Drinkard was 76 at the time of his death on January 10, 1976.

In discussing her conversation with the decedent at the time of the issuance of the check, which was brought out by examination of counsel for the respondent and not objected to in any way, she stated that she had asked him to quit smoking cigarettes and the conversation occurred just before Christmas. She testified:

“He sat there a few minutes and he said, well, I’ve got to go up to my trailer court. I said, well, I wish you wouldn’t refer to the trailer court as ‘my’ trailer court. I said, it hurts my feelings for you to refer to anything we have. I said, after all, all of the money that I’ve put into our marriage and all the work and everything that I have, I think I have a right to at least you saying ‘our’ to anything. He sat there a few minutes and he had tried — has tried ever since I’ve been in Arizona, to buy a home, all the way from $17,000.00 to $30,000.00. We’ve looked at about six . . . . And, he has insisted on buying a home out there for me. . I told him that when he was ready to come to Arizona, that I was ready for the home. He looked at me and ... I knew that he had the trailer court in his name. I did not know that he had our home — I thought our home was in both of our names. I knew he had the trailer court in his own name, alone. And he said, ‘would you like to have $25,000.00?’ And, I — the first thing I thought of was a home in Arizona. I thought he was making it possible for me to have it, or a Christmas present. I didn’t know what he had in mind. ... I said, yes, I would. And so, he said write the check out. I wrote the check, myself, and he signed it. And I put the check in my papers. Christmas was coming up, and I didn’t know that there would be any special hurry — I never thought about him dying. . . . Then soon after Christmas, he got sick and I was more concerned with him. . . Dr. Griffin told me that his condition was serious. And, I was more concerned in doing all that I could for him in the last days of his life, and I certainly did. I was more interested in that than I was in getting the check cashed.”

On the whole, we are satisfied that there was not only sufficient consideration for the $25,000.00 check but that the record supports the conclusion that Mr. Drinkard felt an obligation to his wife in view of all of the facts and circumstances, and that this check represented at least a partial discharge of that obligation.

It results that the assignments of error with respect to the inter vivos gift are sustained but the assignments with respect to the judgment based upon a discharge of the decedent’s obligation to his wife are overruled and the judgment of the Trial Court upholding the claim against the estate of B. B. Drinkard, deceased, is affirmed.

JUDGMENT FOR CLAIM AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: WALKER, Judge.

text:
    Jeffrey SEARLES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 24, 1979.
    Certiorari Denied by Supreme Court March 12, 1979.

      .Jerry H. Summers and Ronald J. Berke, Chattanooga, for appellant.
    William P. Sizer, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, Stephen M. Bevil and Lawrence E. Young, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

WALKER, Judge.

After an evidentiary hearing, the trial judge found to be without merit all of the petitioner’s claims for postconviction relief and dismissed the petition. We agree with the trial judge’s conclusions of law and affirm the dismissal.

The petitioner, Jeffrey Searles, and a co-defendant, James Frank Thrasher, were convicted in Hamilton County of possessing marijuana with intent to sell and each was sentenced to one to five years in the state penitentiary. On their direct appeal we affirmed the convictions in an unpublished opinion. Searles and his codefendant petitioned for certiorari and the Supreme Court granted the writ for the limited purpose of considering one aspect of our opinion, dealing with the late bill of exceptions. It affirmed the convictions, pointing out that the petitioners had had the benefit of a full appellate review. Thrasher and Searles v. State, 566 S.W.2d 852 (Tenn.1978).

By his assignments of error Searles contends that his constitutional rights were violated and his conviction rendered void because the search warrant was issued on the basis of a fraudulent affidavit as to a nonexistent informant and that the prosecution suppressed exculpatory evidence when it did not reveal to the defense that the search warrant was based on a perjured and false affidavit. He relies on State v. Little, 560 S.W.2d 403 (Tenn.1978).

In our opinion we found that there was probable cause for a warrantless search of the airplane at Lovell Field in Chattanooga where officers found 3494 pounds of marijuana. Although the plane’s door was locked, officers detected the odor of marijuana and, under all of the circumstances of the case, we found ample grounds for a warrantless search of the airplane. See State v. Hughes, 544 S.W.2d 99 (Tenn.1976). Since there was probable cause for a search without a warrant, we found that the validity of the search warrant was not determinative.

The appellant argues that he now has evidence produced at the evidentiary hearing which we did not have before us, particularly an affidavit which showed that the warrant was obtained by perjury. In our opinion we said: “(I)f we could consider (the affidavit) we think there are ample facts in this record, independent of the warrant and McCullough’s affidavit in support thereof, to support the search.” This affidavit is not material to our determination.

The question of the right to make a warrantless search was an issue in the trial court and before us on direct appeal. The appellant contends that this issue was there wrongly decided by this court. This issue has been fully litigated and previously determined. A matter previously determined is not a proper subject for postconviction relief. TCA 40-3811 — 40-3812. This court and the Supreme Court have repeatedly stated the fundamental rule that postcon-viction proceedings may not be employed to raise and relitigate or review questions decided and disposed of in a direct appeal from a conviction. Gant v. State, 507 S.W.2d 133 (Tenn.Cr.App.1973); Forrest v. State, 535 S.W.2d 166 (Tenn.Cr.App.1976); Helton v. State, 530 S.W.2d 781 (Tenn.Cr.App.1975).

The assignment that the prosecution suppressed evidence of an invalid affidavit must also fail. Since the conviction did not depend on the validity of the search warrant, this was not material on the question of the appellant’s guilt or innocence. Evidence allegedly suppressed must be material to require a reversal. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Affirmed.

DUNCAN and DAUGHTREY, JJ., concur.