author: McMillian, Judge.

text:
    James Robert HOOPER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37377.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.
    Elberg Dorsey, St. Louis, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
   McMillian, Judge.

James Robert Hooper, movant-appellant, appeals from an order of the circuit court granting the state’s motion to dismiss, without hearing, his application for relief pursuant to Rule 27.26. We affirm.

In September, 1974, four months after a medical determination of appellant’s competency was filed with the court, appellant pleaded guilty to charges'of second degree murder and assault with intent to kill with malice. After conducting an examination as required by Rule 25.04, the court accepted the pleas and sentenced appellant to terms of forty (40) and twenty (20) years respectively, on the charges, with sentences to run concurrently. On May 28, 1975, movant-appellant initiated the present action. As grounds for vacating and setting aside his conviction and sentence, appellant alleges that: his plea was entered involuntarily because he was suffering from alcohol withdrawal at the time of the plea; the trial court failed to determine whether appellant possessed the capacity to understand the plea proceedings; appellant was entitled to a competency hearing because, on the day of the plea, there existed a doubt as to appellant’s mental capacity; and that his plea was involuntarily made because appellant was under the influence of medication at the time the plea was made. On August 1, 1975, the state filed its motion to dismiss stating that, from the record of the case, appellant was entitled to no relief. On August 15, 1975, the circuit court sustained the state’s motion in an order which set forth its findings of fact and conclusions of law.

On appeal, movant raises two issues: that the trial court erred in denying him an evidentiary hearing in which to prove his allegations because mere compliance with Rule 25.04 in the taking of a guilty plea does not foreclose the court from holding an evidentiary hearing to determine the volun-tariness of the plea; and that the trial court erred in its order because it did not sufficiently state its findings of fact and conclusions of law.

A motion under Rule 27.26 is a civil action — 27.26(a); upon review we are limited to a determination of whether the trial court’s findings, conclusions and judgment are clearly erroneous — 27.26(j). Anderson v. State, 493 S.W.2d 681, 683 (Mo. App.1973) and Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973). The current rule which guides the courts of this state in making a determination on whether to conduct an evidentiary hearing on a motion to vacate a guilty plea was first set out in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), as follows: “. . .A 27.26 movant, in order to be entitled to an eviden-tiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.”

In his first point on appeal, movant contends that even though the court conducted an examination which substantially complied with the requirements of Rule 25.-04, he should have been granted a hearing on his motion because the four grounds raised in his motion were not refuted by the record made at the time. See Colbert v. State, 496 S.W.2d 12 (Mo. banc 1973) and 39 Mo.L.Rev. 68 (1974). The first and fourth grounds raised by movant were that his plea was involuntary because he was suffering from alcohol withdrawal symptoms and was under the influence of medication. Movant’s own testimony at the time of the plea refutes these contentions. The second and third grounds were that the trial court should have ordered a psychiatric examination and held a competency hearing because movant’s mental capacity was in doubt. As noted above, movant had been granted a psychiatric examination by the court prior to the time of his pleas. The findings of that report were introduced into evidence at the request of the court at the time of his pleas. The report established that mov-ant was competent to stand trial. Movant’s argument seems to be that his condition deteriorated between the time of the examination and the time of his pleas to such an extent that his pleas were rendered involuntarily. Our reading of the plea proceedings convinces us that movant understood the charges against him, and voluntarily entered his pleas. We find evidence neither that movant’s condition warranted a second examination or a competency hearing, nor that movant requested any such measures. “. . . The court is not required to conduct a competency hearing sua sponte in the absence of circumstances which render suspect the psychiatric opinion which has certified an accused fit to proceed. . .” Davis v. State, 517 S.W.2d 97 (Mo. 1974). We find that the contentions raised by mov-ant were refuted by the record and that the circuit court’s order was not, therefore, clearly erroneous in denying an evidentiary hearing.

Movant’s. second issue on appeal is that the circuit court erred by failing to sufficiently state its findings of fact and conclusions of law on all the issues before the court. We find no merit to this contention. The transcript contains more than four (4) pages of findings of fact and conclusions of law which adequately sets forth the grounds upon which the court based its decision to deny movant a hearing.

Accordingly, judgment is affirmed.

WEIER, P. J., and RENDLEN, J., concur.


source: Caselaw Access Project

author: McMILLIAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Samell THOMAS, Defendant-Appellant.
    No. 37593.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.
    Robert C. Babione, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a jury conviction for selling marijuana and a sentence of five (5) years imprisonment imposed by the court pursuant to the Second Offender Act, § 556.280 RSMo 1969.

Appellant’s three contentions, all centering on the issue of identity, are: 1) that the evidence was insufficient to support the jury verdict because of inadequacies in the identification evidence; 2) that the submitted verdict director was erroneous because it failed to specifically isolate identity as an issue; and 3) that the trial court should have given a separate cautionary identity instruction sua sponte. We affirm the conviction.

On the morning of February 11, 1975, Detective Patrick Dickens, an undercover narcotics officer, drove to 5943 Oakhurst with his partner. A light-complected black man in his mid-twenties answered the door. Detective Dickens described the man as having a medium-sized Afro, was between 5'7" and 5'8" in height and weighing between 150 and 155 pounds. Dickens also stated that although he did not include it in the police report the man had a mustache shorter than the one he had at the time of trial. The detective asked the man if he could purchase a “nickel bag of smoke.” Detective Dickens explained at the trial that a “nickel bag of smoke” was street jargon for a five dollar bag of marijuana. The man admitted him into the house and they had a brief conversation in the hallway. While Dickens waited downstairs, the man ascended the stairs and returned a minute later with a yellow manila envelope. Dickens took the envelope and gave five dollars to the man. After a brief conversation, the man told Dickens that his name was “Larry.” The entire transaction lasted about four minutes; Dickens was with the man for two or three of those minutes. Dickens testified that the only lights he remembered in the house were red, white and yellow Christmas decorating lights hanging from a wall in the living room and adjacent to the hallway.

The detective then left the house and returned to the police car. He and his partner examined the contents of the envelope and determined that it contained a “greenish vegetative type substance.” Subsequent laboratory tests revealed the substance to be marijuana.

On March 14, 1975, Dickens and other officers raided the residence at 5943 Oak-hurst and arrested several of the occupants. Dickens arrested appellant for the February 11, 1975, sale.

Appellant’s only witness, a friend of his, testified that he saw appellant on the weekend prior to February 11, 1975, and that appellant then had a beard. The witness saw appellant the next time on March 14, 1975, when he and appellant went to the house at 5943 Oakhurst to pick up a pair of shoes for the witness’ brother. The witness further testified that at the time of trial, appellant was about 5'9" tall and weighed about 170 pounds.

Appellant first challenges the sufficiency of the evidence contending that Dickens’ two or three minutes’ view of appellant, under apparently dim lighting conditions, on February 11, could not provide a sufficient basis for Dickens’ March 14, 1975, identification and apprehension of appellant. We do not agree that this is so as a matter of law. The testimony of a single witness, if believed, is sufficient to establish identification, State v. Tucker, 451 S.W.2d 91, 93 (Mo.1970); State v. Graham, 527 S.W.2d 936, 947 (Mo.App.1975). In the present case, Officer Dickens positively identified appellant at the time of the March 14 arrest and at the trial. Any inaccuracies in Dickens’ identification testimony as to the height and weight of the appellant were for the jury to consider, State v. DeLuca, 448 S.W.2d 869, 873 (Mo. 1970). This is especially so where, as here, the inaccuracies are very minimal, cf. People v. Brown, 73 Ill.App.2d 448, 220 N.E.2d 92 (1966). Similarly, any inadequacies in the lighting and length of viewing time in the out-of-court identification go to the weight of the identification testimony. That matter is for the jury, see e. g. State v. Blewett, 507 S.W.2d 56, 58 (Mo.App.1974) (defendant claimed identifying witness was nearsighted) and State v. Bibee, 496 S.W.2d 305, 316 (Mo.App.1973). There was sufficient identification evidence to support the jury verdict.

Appellant next takes issue with the court’s submission of a verdict director which did not isolate identity as a separate issue to be considered by the jury. Appellant contends that the verdict director effectively “assumed that the person who sold the marijuana is the defendant.” The verdict director used was based on MAI-CR 14.10. Implicit in the finding required by the submitted verdict director that “defendant sold” the drug is a finding on identity. The issue of identity does not appear to be a “special negative defense” which would require inclusion of a separate numbered paragraph in the verdict director, see MAI-CR 2.04, Notes on Use. Because there was an approved instruction applicable under the law to the facts, the trial court acted properly in utilizing it and we approve that action, Rule 20.02(c), V.A.M.R., cf. State v. Blockton, 526 S.W.2d 915, 918-19 (Mo.App. 1975); State v. Yeokum, 516 S.W.2d 535, 537 (Mo.App.1974). We feel that the submitted verdict director together with the standard instructions on the presumption of innocence and reasonable doubt adequately covered the issue of identity, cf. State v. Neal, 514 S.W.2d 544, 547 (Mo. banc 1974) and State v. Smith, 358 Mo. 1, 212 S.W.2d 787, 789 (Mo.1948).

Appellant finally contends that the trial court committed plain error in failing to give sua sponte a separate cautionary instruction on identification. On appeal, he suggests that the trial court should have given an identity instruction based on the model instruction discussed in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972). This argument has been advanced several times in Missouri cases, but the rule remains that the inclusion of a separate cautionary identity instruction is discretionary, State v. Collor, 502 S.W.2d 258, 259 (Mo.1973); State v. Taylor, 472 S.W.2d 395, 402 (Mo.1971) and State v. Letourneau, 515 S.W.2d 838 (Mo. App.1974). We find no abuse of discretion in the action of the trial court in the present case. There was sufficient, believable identification testimony. More importantly, the importance of the identity issue and the dangers of misidentification were clearly highlighted for the jury because most of the examination of the witnesses and the closing arguments of counsel centered on this issue, cf. United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975).

We, therefore, affirm the judgment of the trial court.

WEIER, P. J., and RENDLEN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Helen Patricia PRICE, Defendant-Appellant.
    No. 37126.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.
    Bell, Harris, Kriksey & Thomas, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant-appellant Helen Patricia Price appeals from a conviction in the circuit court of the City of St. Louis for stealing over $50 and a sentence imposed by the court, pursuant to the Second Offender Act, to a term of five (5) years imprisonment. We reverse the conviction and remand for a new trial.

At trial the state’s evidence was that on December 4, 1974, Ms. Joyce Jobe and Ms. Sally Parker, security officers in the downtown Famous-Barr Department Store, saw appellant take a red plastic shopping bag from her purse, place four handbags from a sales rack into the bag, and attempt to walk out of the store. Appellant was then detained by the two security officers and Mr. Joseph Gaal, a member of the St. Louis Police Department, who was employed on a part-time basis by the store. These three employees testified to having observed and detained appellant. An assistant buyer testified that the value of the items was in excess of $50.00.

Appellant testified and admitted to having been previously convicted of a shoplifting offense involving Famous-Barr and to several felony convictions. She claimed, however, that in the present case she was being framed. She testified that she was shopping on the second floor of the store with her sister and brother, when Officer Gaal told her to leave the store. A short time later Officer Gaal again saw her around the first floor entrance and a scuffle ensued. She was then taken to the store security office where Officer Gaal told Jobe and Parker to get some merchandise valued at over $50.00 and to bring it to the office so that appellant could be charged with a felony. Appellant also testified that she had had a prior hostile encounter with Ms. Jobe.

Ms. Jobe and Ms. Parker testified that appellant had been accompanied by someone when they first observed her but that they had lost track of that person in the process of following Ms. Price. Appellant’s attorney, Mr. Charles Kirksey, Jr., first notified the prosecutor of his intention to call appellant’s sister and brother on the day the trial commenced. During a conference in the judge’s chambers held the following morning, the court found that appellant had failed to comply with the discovery request for witnesses made by the state under Rule 25.34(2). Therefore, at the request of the state, the court then applied Rule 25.45 to prohibit the appellant from calling either her brother or sister as a witness.

In his closing argument the prosecutor, Mr. Raymond Bruntrager, Jr., commented on the appellant’s failure to present any evidence to corroborate her story. Appellant’s counsel objected and was overruled.

Appellant raises two points on appeal: that the trial court erred by excluding appellant’s witnesses from testifying resulting in a deprivation of her constitutional rights; and that the trial court erred in not sustaining appellant’s objection to the prejudicial argument of the prosecutor.

We pass to consideration of the second point. Generally, the granting or withholding of a new trial for improper argument is a matter for the trial court’s discretion and an appellate court will not interfere without a showing that the trial court abused its discretion to the prejudice of the appellant. State v. Turley, 518 S.W.2d 207, 211 (Mo.App.1975) and State v. Connell, 523 S.W.2d 132 (Mo.App.1975). Such a statement must have been plainly unwarranted and clearly injurious. State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970).

It is an established rule in our state that it is improper for a prosecutor, or defense attorney, to argue matters that the court has excluded. State v. White, 440 S.W.2d 457, 460 (Mo.1969) and State v. Williams, 376 S.W.2d 133, 136 (Mo.1964).

In his closing argument the prosecutor made the following statement: “Helen Price takes the stand . . . Okay. She tells you, ‘well, this happened. That person was with me. And that person was with me.’ Do you see any of this now? You don’t see any of it now. All you see is her telling you_”

We find this to be a clear reference to the failure of Ms. Price to call as witnesses her brother and sister. The prosecutor himself had requested the court to exclude these witnesses. Any comment on their failure to testify was, therefore, within the rule which prohibits comment on excluded testimony and was improper. While the courts of our state allow comment on the failure of a party to call a witness who would be expected to testify favorably to their case, State v. Williams, 532 S.W.2d 826, 830 (Mo.App.1975), the reason for allowing this comment is that there are logical inferences that can be drawn from this failure to call a witness. Among these inferences is the fact that the testimony would not have been favorable, or that the party has fabricated the presence of a witness to try to bolster their testimony. No such inference can be drawn from appellant’s inability to call her witnesses in the present case. The trial court erred in failing to sustain the timely objection of appellant’s attorney to this line of argument.

In determining whether an improper comment was so clearly injurious that a new trial should be required, we consider three factors: whether the trial court gave a cautionary instruction, MAI-CR 2.68 to the jury, State v. Connell, 523 S.W.2d 132, 138 (Mo.App.1975); whether the trial court gave a curative type instruction to disregard the improper comment, State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970); and the strength of the state’s case, State v. Connell, supra, 523 S.W.2d at 138.

In the present case the trial court gave the cautionary instruction. As noted earlier, the court improperly overruled appellant’s objection and therefore did not give the jury any curative-type instruction to disregard the prosecutor’s statement. The overruling of the appellant’s objection had the effect of giving the court’s sanction to the prosecutor’s argument and would naturally serve to discredit the testimony of appellant. While the state’s case at trial was strong, we find that a good deal of its strength was a result of the prosecutor’s ability to discredit the appellant through cross-examination and in his closing argument. The improper portion of the argument was a significant factor in this process.

We, therefore, find that the appellant was clearly injured by the failure of the court to sustain her objection.

We need not now consider appellant’s first issue concerning the propriety of the extreme sanction taken by the trial court in excluding her witnesses. We do note, however, that by remanding for a new trial, appellant will now be in a position to call these witnesses and the fact-finding process should be aided as a result.

This cause is reversed and remanded for a new trial.

WEIER, P. J., and RENDLEN, J., concur.


text:
    Russell Leroy MAINORD, Appellant, v. STATE of Missouri, Respondent.
    No. 37462.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.

      O. J. Gibson, Jr., Downs, Johnson & Gibson, Cape Girardeau, for appellant.
    John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   McMILLIAN, Judge.

This is an appeal from a denial by the circuit court of Cape Girardeau County of an evidentiary hearing on a Rule 27.26 motion to vacate, correct or set aside a sentence.

At the guilty plea proceedings the trial judge extensively questioned the appellant as to his understanding of the nature of the charges against him, the range of punishment for such charges and the fact that by pleading guilty he was waiving certain constitutional rights. Appellant unequivocally asserted understanding these items.

Appellant testified that neither he nor his attorney engaged in any plea bargaining and that no promises of a lesser sentence or probation had been promised to him by anyone. The defense attorney and the prosecutor also denied the occurrence of any plea bargaining. Upon further questioning, this statement was clarified to indicate that a deputy prosecutor had indicated an intention to make a recommendation to the prosecutor but that the prosecutor had decided not to make a recommendation to the judge.

Finally, appellant submitted a signed petition to enter a plea of guilty which included the movant’s statement that he understood any promises made to him by the prosecutor or his attorney were not binding on the sentencing judge. The trial judge had orally informed appellant of this fact at the plea proceedings. After acceptance of the plea, appellant was sentenced to terms of eight (8) and five (5) years to run concurrently.

Appellant’s motion to vacate his guilty plea was premised on his allegation that the plea was induced by a promise that he would receive a five year sentence. Appellant asserts that he was instructed by his attorney to tell the court that no such deal was made. The trial court’s findings of fact and conclusions of law held that mov-ant’s allegations were refuted by facts disclosed by the record of the plea proceedings. We affirm.

To justify the grant of an eviden-tiary hearing, the appellant must—

“. . . plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.”

Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974). In the present case, the fact pleaded is that appellant was told by his attorney to lie when asked if any promises had been made. In our judgment this fact, even if proven, would not entitle appellant to relief. Essentially, the allegation is that the plea was entered in reliance upon plea bargaining that occurred before the guilty plea proceedings. The transcript of the plea proceedings, however, reveals that both the prosecutor and the defense attorney expressly denied the occurrence of any plea bargaining. More importantly, the trial court twice alerted the appellant to the fact that any promises which might have been made were not in any way binding on the court. Even if backroom promises had been made to the appellant, we are convinced that the questioning and statements by the trial judge thoroughly advised the appellant that all deals were no longer éf-fective. Nevertheless, the appellant expressly rejected two opportunities to withdraw his plea. On the record before us, the appellant having been made fully aware of the consequences of his plea, we cannot label as clearly erroneous, the finding that the plea was voluntary.

Appellant’s brief places great reliance on the decision in Burgin v. State, 522 S.W.2d 159 (Mo.App.1975). In Burgin, the movant pleaded that he had been told by his attorney to lie to the trial judge when asked if any promises had been made. The appellate court ordered an evidentiary hearing on the basis that this allegation “if true, would taint the voluntary nature of the plea,” Id. at 160. The decision, however, seems distinguishable from the present ease. In Burgin, the court noted:

“ . . . The question by the trial court relating to a ‘promise’ is intended to determine that the plea is not ‘involuntary’ in the sense that a ‘promise’ by anyone other than the judge is not binding on the court and that the defendant is not misled by a ‘promise’ of a certain sentence not within the power of the promissor to perform. . . . ” (Id. at 160)

This language suggests that the trial judge did not clearly inform the defendant that any promises made were not binding on the trial court. In the present case, the trial court painstakingly informed the appellant of this fact.

The finding of the trial court is not clearly erroneous; therefore, we affirm.

WEIER, P. J. and RENDLEN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl A. ZIEGLER, Defendant-Appellant.
    No. 37687.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.

      Mary Louise Moran, Asst. Public Defender, St. Louis, for defendant-appellant.
    Thomas W. Shannon, Pros. Atty., Lawrence E. Manion, Jr., Asst. Pros. Atty., St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a conviction of common assault, and a fine of $100.00 plus costs assessed by the court.

The jury having been waived, the case was tried to the court. Briefly stated, the evidence was as follows: The victim, Barbara Wainscott, testified that the defendant, defendant’s brother and her estranged husband Randall, came to her house at 12:15 A.M. Although she asked them to leave, the defendant placed his foot in the door and threatened to harm her. She ran into her apartment but defendant kicked the door open. When she ran outside, defendant tackled her and slammed her head on the sidewalk.

The first defense witness, Randall Wain-scott, testified that he saw appellant and the victim on the ground but that he did not see appellant hit or injure the victim.

After Mr. Wainscott’s testimony, defense counsel said he would call the defendant. The court stated that defendant would be found guilty and defense counsel repeated his request to call defendant. Defendant was then allowed to testify. He admitted that he had grabbed the victim and wrestled with her on the ground allegedly to restrain her hysterics. He denied hitting the victim’s head. At the close of this testimony, the trial judge apologized to the defense counsel for the statement before the defendant testified. The trial judge explained that he had misunderstood defense counsel to say that defendant would not be called to testify and that defendant’s case was, therefore, over.

On appeal, defendant contends that the statement by the trial judge that defendant would be found guilty deprived the defendant of the presumption of innocence and shifted the burden of proof.

From our review of the entire record, we cannot detect any realistic denial of the presumption of innocence or any shift of the burden of proof. As explained by the trial judge on the record, his misstatement was simply a product of misunderstanding. There was no jury present to be prejudiced by the statement. The evidence of defendant’s guilt was overwhelming. Even defendant’s own testimony that he grabbed the victim and wrestled with her on the ground was sufficient to convict him of common assault, State v. Parker, 378 S.W.2d 274, 282 (Mo.App.1964). We, therefore, affirm.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Edward SANDERS, Defendant-Appellant.
    No. 37355.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 21, 1976.

      Paskal, Edwards & Olian, Lawrence J. Permuter, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant Edward Sanders appeals from a jury conviction of second degree burglary, § 560.045, RSMo 1969. He was sentenced by the court under the Second Offender Act, § 556.280, RSMo 1969, to a term of five (5) years imprisonment. Appellant alleges error with reference to a comment made by the prosecutor during closing argument in the refusal of the court to give a proffered converse instruction and in the court’s decision to sentence under the Second Offender Act. We affirm.

Appellant does not challenge the sufficiency of the evidence. From the evidence the jury could find that appellant rode to 2017 Bredell Avenue, scene of the burglary, with three other people. Appellant and one Singleton approached and entered the house via the side porch. The resident of 2019 Bredell Avenue, the house next door on the porch side, saw the two men enter the house and had her mother call the police. Several policemen responded to the call within a few minutes. While some of the policemen watched the house exits, Officers Heberer and Clark, having noticed a missing pane of glass and marks near the lock on the door, entered the house. The appellant and Singleton were found hiding in a back bedroom of the house and arrested. Appellant was taken to the police station in the back seat of Officer Heberer’s car. The following morning a check in the name of the resident of the burglarized house was found in the back seat of the police car.

Appellant presented a totally different version of the facts. Appellant claimed that he believed that they had gone to the house to pick up some clothes from Singleton’s relatives and that he was arrested on the side porch when he left the car and went to see what was delaying Singleton. One of the other occupants of the car supported appellant’s story.

Appellant’s first allegation of error stems from the following statement made by the prosecutor during closing argument:

“There is an instruction that says the state has the burden of proving the defendant’s guilt beyond a reasonable doubt. That’s just what that means, beyond a reasonable doubt. It doesn’t say beyond any doubt. There aren’t many things in this world that can be proved beyond any doubt, and that certainly isn’t the state’s burden in a criminal case. . . ."

Although the alleged error was neither objected to at trial nor included in the motion for a new trial, appellant urges that we review this point as plain error under Rule 27.20(c), Y.A.M.R. The court may consider statements made in closing argument as plain error, State v. Brown, 528 S.W.2d 503, 505 (Mo.App.1975); State v. McClure, 504 S.W.2d 664, 670 (Mo.App.1974). But to warrant relief the erroneous admission of the statements must have resulted in an injustice or a miscarriage of justice. State v. Carpenter, 436 S.W.2d.748, 751 (Mo.1969); State v. Garrett, 518 S.W.2d 97, 99 (Mo.App. 1974).

An instructive case on this issue of prose-cutorial arguments attempting to define reasonable doubt is State v. Belleville, 530 S.W.2d 392 (Mo.App.1975). We agree with the Belleville court that the prohibition found in the Notes on Use under MAI-CR 2.20 against a court’s efforts to define “reasonable doubt” suggests that the prosecutor should be similarly prohibited, id. at 395. Assuming that the prosecutor’s statement in the present case was improper, we, however, must further concur with the Belle-ville court that:

“ . . .we cannot say here as a matter of law that a jury of reasonably intelligent men and women were confused and misled by the reasonable doubt definition in returning their verdict against this defendant.”

As in Belleville, the prosecutor did not dwell on his interpretation of reasonable doubt and the evidence against the appellant was very strong. We do not find plain error in the admission of the prosecutor’s statement.

Appellant’s second contention is that the trial court proceeded improperly in assessing his punishment under § 556.280 RSMo 1969, because the record does not indicate that he was assisted by counsel in his prior felony convictions. The contention is frivolous. State’s Exhibit 1(b) offered and admitted into evidence, was certified records of appellant’s three prior felony convictions. The record of proceedings of each prior conviction expressly names the attorney that appeared with appellant in each instance. The case of State v. Alberts, 519 S.W.2d 562 (Mo.App.1975) relied upon by appellant is distinguishable. In Alberts, a prior conviction was held void for the purpose of establishing a conviction under the Second Offender Act because the space provided for the name of defendant’s counsel in the record of his prior conviction was blank, id. at 564-565. In the present case, the court properly assessed punishment pursuant to § 556.280, RSMo 1969.

The appellant’s final contention is that the trial court erred in refusing to read to the jury a converse instruction tendered by the appellant. The state had submitted a principal instruction patterned after MAI-CR 2.14 and 7.22. The court submitted its own converse instruction patterned after MAI-CR 3.06 which specifically negatived the state’s principal instruction. The instruction tendered by the appellant read as follows:

“If you do not find and believe from the evidence beyond a reasonable doubt each and all of the following:
“First, that on May 30,1974, defendant did wilfully, unlawfully, feloniously, acting with another, and burglariously, fore-ibly break and enter a dwelling house located at 2017 Bredell, Maplewood, Missouri, the property of Kevin Smith, and
“Second, that on May 30, 1974, defendant did have the felonious and burglarious intent to steal, take and carry away certain goods, wares, merchandise or personal property of Kevin Smith, then and there kept or deposited at 2017 Bredell,
“then you must find the defendant not guilty of burglary second degree.”

While the court must generally give a requested converse instruction, MAI-CR 3.02, Notes on Use, the court need only do so if the converse is proper in form, State v. Smith, 515 S.W.2d 761 (Mo.App.1974); State v. Drake, 512 S.W.2d 166, 173 (Mo. App.1974); State v. Robinson, 507 S.W.2d 61, 65 (Mo.App.1974). In the present case, the appellant’s converse was not proper because inclusion of the adverbs “wilfully, unlawfully, feloniously” and “burglariously, forcibly” violated the directive of MAI-CR 3.02 to drafters of converse instructions to “insert the single, essential element to be negatived.” The inclusion of these words also added elements to the offense as defined in §§ 560.040, 560.045, RSMo 1969, which were not a part of the state’s principal instruction, of. State v. Drake, supra, at 172-173. We also feel that the court fulfilled its duty to the appellant by submitting its own converse instruction to the jury which conformed to MAI-CR 3.06 and covered the defendant’s theory, cf. State v. Jewell, 473 S.W.2d 734, 740 (Mo.1971). Refusal to submit appellant’s converse instructions was therefore not prejudicially erroneous.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: HARBISON, Justice.

text:
    Perry A. CHAPDELAINE, Appellant, v. TENNESSEE STATE BOARD OF EXAMINERS FOR LAND SURVEYORS et al., Appellees.
    Supreme Court of Tennessee.
    Aug. 23, 1976.
    For Dissenting Opinion, see 543 S.W.2d 60.
    Perry A. Chapdelaine, pro se.
    R. A. Ashley, Jr., Atty. Gen., Nashville, C. Hayes Cooney, Chief Deputy Atty. Gen., Nashville, for appellees.
   OPINION

HARBISON, Justice.

In this Court, the sole issue presented is the constitutionality of Chapter 207 of the Public Acts of 1969. This act creates the Board of Examiners for Land Surveyors and requires the licensure and annual registration of persons engaged in the business of land surveying. The statute has now been codified as T.C.A. §§ 62-1801 et seq., and as T.C.A. § 64-2418 (the latter requiring the seal and signature of a registered land surveyor or of a registered engineer upon maps, plats, surveys or other documents “within the definition of land surveying” in order to qualify for public recordation).

The principal thrust of the single assignment of error made by appellant is that land surveying is such a common occupation or business as to fall outside the scope of licensure or regulation by the State under its general police power. Great reliance is placed upon the decision of this Court in the case of Livesay v. Tennessee Board of Examiners in Watchmaking, 204 Tenn. 500, 322 S.W.2d 209 (1959). It is true that in that case this Court stated that the police power of the State is not without limitation, and that ordinary callings and business pursuits which do not affect the general welfare or involve the public morals, health or safety, may not be subjected to licensing requirements. See also Campbell v. McIntyre, 165 Tenn. 47, 52 S.W.2d 162 (1932), dealing with certain aspects of accounting.

In the later case of Ford Motor Co. v. Pace, 206 Tenn. 559, 335 S.W.2d 360 (1960), however, this Court upheld a statute regulating the business of distributing and selling motor vehicles, including provisions that automobile dealers and automobile salesmen be licensed. In the course of its opinion, the Court said:

“In considering the question, whether or not the Legislature has the right to enact such a statute under the police power, we must take into consideration and look at things in the light of the social and economic conditions existing at the present time rather than at the time our Constitution was adopted. Legislative power is not static and helpless but arises to adjust and face new conditions as they appear to affect the people of the State. Of course, the Legislature of the State cannot prohibit an ordinary business but it may, however, regulate the business to promote the health, safety, morals or general welfare of the public. The guarantees of the Constitution imply the absence of arbitrary restraint, but not immunity from reasonable regulations and prohibitions imposed in the interest of the people of the State.” 206 Tenn. at 564, 335 S.W.2d at 362.

In enacting the statute now under consideration, the General Assembly stated:

“In order to safeguard the life, health or property of the public, the practice of land surveying in this state is hereby declared to be subject to regulation in the public interest.” T.C.A. § 62-1801.

The activities sought to be regulated and subjected to licensure under the subject statutes are described as the “practice of land surveying”, and defined as:

“. . . the establishment or reestablishment of corners, boundaries, and locations of lots, parcels, tracts, or divisions of land, including distances, directions, and acreage, or fractional parts thereof: and also including but not limited to, the correct determination and description of the same for the purpose of furnishing a legal description of any land surveyed to be used in deeds or other instruments of conveyances for the purpose of conveying title to the area surveyed.” T.C.A. § 62-1802(c).

The statute, by its terms, does not apply to “the practice of surveying for other purposes.” Ibid.

It is true, as contended by appellant and as recognized in the cases cited above, that a legislative determination of the need for regulation is not conclusive upon the courts. Nevertheless, as stated by the Court in the Ford Motor Co. case, supra:

“It makes no difference what our personal views may be as to the necessity of such legislation as that herein, the fact remains that the Legislature of the State concluded that a reasonable basis existed for its enactment, and, there being some foundation in fact to justify this legislative action, the Court is powerless and it wouldn't be right on our part for us to substitute our judgment for that of the Legislature even if we cared to do so.” 206 Tenn. at 567-568, 335 S.W.2d at 363.

In the present case appellant was offered an opportunity to introduce evidence in support of his contention that the practice of land surveying, as defined in the statute, is such a common pursuit or calling as to be beyond the police power of the legislature and of its power to require registration and licensure. Appellant offered no such proof, so that, purely from an eviden-tiary standpoint, he has failed to carry the burden of proof resting upon him to establish his factual assertions. In his brief, appellant insists that the practice of land surveying has remained unchanged since the days of George Washington, that it is an ancient art, and that it can be mastered simply by persons with little or no formal education or training. It is sufficient to state that appellant offered no testimony whatever in support of these assertions, and his claims are certainly not matters of such widespread and general knowledge that this Court can take judicial notice thereof. To the contrary, the Court judicially knows that a substantial amount of litigation has been engendered in the past because of inaccurate and improper surveys, and the Court continues to receive regularly disputes over boundaries, plats and surveys affecting very substantial property rights of the citizens of the state. It seems to us that if the regulation of automobile dealers and automobile salesmen is within the police power of the state, then a fortiori, activities affecting the establishment of land corners and boundaries, and plats and subdivisions of real property, are also embraced within that power.

It is true that in the Ford Motor Co. case, supra, the Court used some unfortunate language in dictum. In sustaining the statutes regulating automobile sales and distribution, the Court said:

“The Act in question does not involve watch repairers or makers, house painters, paper hangers, land surveyors, morticians, dancing schools, horse shoers, dry cleaners, layers of drain tile and things of that kind, which have been correctly held beyond the police power of the Legislature for the very apt and fine reasons as set forth in the Livesay ease, supra.” 206 Tenn. at 567, 335 S.W.2d at 363. (emphasis added).

While appellant understandably seizes upon this dictum, we do not find it to be either persuasive or controlling here. The practice of land surveying which is here under consideration does not include every aspect or facet of the activities in which a surveyor might engage, but only that defined and set forth in the statute, and we are of the opinion that the legislative power does extend to the activities sought to be regulated by the present statute.

The State of Colorado, among many other states, has detailed statutes requiring registration of land surveyors. Colo.Rev.Stats. §§ 12-25-202 et seq: (1973). The Supreme Court of that state, in commenting upon these statutes, said:

“Surveyors are licensed to protect the public from unqualified work. Section 12 — 25—202. The required seal certifies expertise. Section 12-25-209. It also acknowledges the surveyor’s responsibility to protect the public for any mistake or negligence in the survey which bears the seal. Section 12-25-211.” South Park Land and Livestock Co., Inc. v. Hamilton Enterprises, Ltd., 538 P.2d 444, 445 (Colo. 1975).

Appellant originally applied to the Board of Examiners for Land Surveyors for a license, and at one point in these proceedings the Board was directed to afford him a hearing as to his qualifications. Appellant declined to accept this opportunity, however, and withdrew his application for a hearing. Accordingly, we do not find persuasive many of his arguments as to possible impropriety of conduct by the Board or its members, none of these things being demonstrated in evidence in the present case. Appellant has contented himself with a general attack upon the constitutionality of the statute, rather than proving the actual practices followed by the Board in its examining and licensing procedures.

Appellant argues that the statute in question contains arbitrary and impermissible classifications, in that it does not require licensure of registered engineers. These persons are subject to examination and licensing under separate statutory provisions. T.C.A. §§ 62-201 et seq. Those statutes require registered engineers to meet more stringent educational qualifications than land surveyors. Also there is testimony in the record indicating that engineers are subject to high standards of professional ethics in addition to the statutory qualifications for licensing.

Appellant also contends that exemptions contained in the act for land surveyors employed by governmental agencies and certain public utilities are unconstitutionally discriminatory. The statutes exempt these persons only while “acting solely” for railroad systems and for federal agencies. Activities engaged in by them in other capacities are not exempt, so long as such activities fall within the statutory definition of the “practice of land surveying”. There is no evidence that railroads or governmental agencies engage in the regulated activities to any substantial degree, and their use of surveyors in other types of work is not subject to the statute, by definition. These entities usually possess the power of eminent domain in connection with their acquisition of property rights, and of course they are required to respond with just compensation to landowners in that regard. Facially, we cannot say that the exemption of land surveyors acting solely for these bodies is palpably discriminatory, and we do not have the benefit of any evidence tending to substantiate the contentions of appellant.

It is our opinion that the practice of land surveying, as defined in this statute, does affect the public interest and is an activity which may validly be regulated by the General Assembly. We have carefully considered all of the contentions of appellant, and find them to be without merit. On the contrary, we agree with the Chancellor that the statutes in question are not shown by this record to be vulnerable to the constitutional attacks made upon them by appellant.

The judgment of the Chancellor is affirmed at the cost of appellant.

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

FONES, J., dissents.

      . That rights of third parties, and not just the rights of the immediate contracting parties, may be affected by an inaccurate or improper survey, see Tartera v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780 (1970). For abuse by surveyors of their relationship to their own clients, see McCarthy v. Holt, 5 Tenn.App. 447 (1927).

      . Appellant relies heavily upon the case of Doe v. Jones, 327 Ill. 387, 158 N.E. 703 (1927), in which an Illinois licensing act for surveyors was stricken. Since 1939, however, legislation in that state has required licensure, apparently without challenge. Smith-Hurd Ill.Ann.Stats. ch. 133, §§ 34 et seq. (See Supp.1976 for current provisions).

      . T.C.A. § 62-1820(7).

      . T.C.A. § 62-1820(5).

      .The statutes exempted employees of the state and local governments initially, but “only until the expiration of the existing term of office of such employees.” T.C.A. § 62-1820(6).


author: BROCK, Justice.

text:
    Paul J. CORBY, Appellant, v. E. N. MATTHEWS, Jr., d/b/a Matthews Construction Company and Aetna Life & Casualty Insurance Company, Appellees.
    Supreme Court of Tennessee.
    Oct. 4, 1976.

      John D. Goodin, Johnson City, for appellant.
    Donald D. Oakley, Morristown, for appel-lees.
   OPINION

BROCK, Justice.

This is a workmen’s compensation dispute.

On February 3, 1975, the Chancery Court for Greene County entered a decree approving and adopting a lump sum compromise settlement agreement entered into between the employee, Paul J. Corby, and his employer, E. N. Matthews, Jr., and the employer’s insurer, Aetna Life & Casualty Insurance Company. Thereafter, on July 7, 1975, the employee, Corby, filed a complaint seeking to have the decree set aside upon the alleged ground that the court lacked jurisdiction to render the same; and, in the alternative, praying that said decree be reopened and that he be allowed additional benefits under the Workmen’s Compensation Act.

Without filing an answer, affidavits or any other documents, the defendant-employer filed a motion for summary judgment in which it asserted that the defendant was entitled to judgment as a matter of law because the consent decree sought to be set aside was valid and had been entered more than 30 days before the employee filed his application to have it set aside. The Chancellor granted the motion for summary judgment and dismissed the complaint. This appeal is presented on the technical record without aid of a bill of exceptions.

I

We consider first the assertion of the employee that the consent decree approving the lump sum settlement is void for lack of jurisdiction of the court. As we understand the employee’s argument, it is that the Chancery Court of Greene County lacked jurisdiction to entertain the joint petition seeking approval of the lump sum settlement because the plaintiff’s residence, the defendant’s principal place of business, and the occurrence of the accident were all in Washington County. However, the authorities cited by the employee for his position, Chambers v. Sanford & Treadway, 154 Tenn. 134, 289 S.W. 533 (1926); Redman v. DuPont Rayon Company, 165 Tenn. 585, 56 S.W.2d 737 (1933); Insurance Company of North America v. Lane, 215 Tenn. 376, 386 S.W.2d 513 (1965), do not support him. Each of these cases deals with venue of contested workmen’s compensation proceedings. In this case, the proceeding was by joint petition filed by the employee, the employer and the insurer. A plain-Iff, by filing suit, waives any right to dispute venue. Thus, all three parties necessarily waived any privilege to assert that venue was in any county other than the one in which they filed the joint petition. Venue in transitory actions, as distinguished from purely local actions, amounts to nothing more than a privilege of the defendant to be sued in a particular county or counties, as designated by statute, a privilege which the defendant must assert at the outset by a motion to dismiss or be held to have waived it. T.C.A. § 20-406. It is axiomatic that workmen’s compensation proceedings are transitory in nature and that the chancery courts of this State have jurisdiction to entertain the same. Accordingly, the assertion that the Chancery Court for Greene County was without jurisdiction to entertain the joint petition for approval of the lump sum settlement is without merit and is overruled.

II

We next consider the merits of the plaintiff’s claim that he is entitled to have the consent degree approving the lump sum settlement agreement set aside and additional benefits awarded to him.

The plaintiff was injured on March 27, 1974, in an accident arising out of and in the course of his employment when he sustained an injury to his right shoulder as he was hauling concrete mix in a heavy truck which reared up and turned over. He received medical treatment and surgery by Dr. John H. Bell, an orthopedic surgeon provided by the defendant. Dr. Bell found the plaintiff to have sustained a “fracture of the tuberosity, right shoulder, and a dislocating biceps tendon from groove in upper humerus, right.” Dr. Bell performed a bici-pital tendon transfer from the glenoid attachment to the humeral head, right shoulder, on August 27, 1974.

The joint petition alleged that it was the opinion of Dr. Bell that plaintiff sustained a 10% permanent impairment to the right arm as a result of the injury. It also alleged that “although the said employee has reached his maximum improvement, it is anticipated that he may require further medical care because of the nature of his injury, and the said Aetna Life & Casualty Company, in addition to the other benefits, agrees to pay for any medical expenses because of said injury, administered or authorized by the said Dr. John H. Bell, through January 31, 1976.” The joint petition recited that the employee had been paid benefits for temporary total disability amounting to $2,480.00, being $62.00 per week for a period of 40 weeks, and that the insurer of the employer had also paid medical benefits amounting to a total of $2,878.45. It further recited that the plaintiff-employee had agreed to accept and the employer and insurer had agreed to pay a lump sum of $2,480.00 representing compensation for a 20% permanent partial disability of the right arm or 40 weeks of compensation at the rate of $62.00 per week. It was also stated in said petition that “said lump sum payment is to be in full and final settlement of any and all claims the plaintiff, Paul J. Corby, may have against either E. N. Matthews, Jr., d/b/a E. N. Matthews Construction Company or Aetna Life & Casualty Company, for medical care, permanent partial disability, temporary total disability, or for any other benefits under the terms and provisions of the Workmen’s Compensation Law of the State of Tennessee, arising in and growing out of the accidental injury occurring on or about March 27, 1974.” The petition concluded with a prayer by all three parties, the employee, employer and insurer, that the court approve the settlement and enter a decree accordingly. Said petition was signed by Paul J. Corby, pro se, and by Donald B. Oakley, attorney for the employer and insurer.

The decree of the Chancery Court entered pursuant to said joint petition recited the stipulations contained in said petition and approved and ratified the lump sum settlement. It also contains a finding that the settlement “is a fair and reasonable settlement and in substantial compliance with the terms and provisions of the Workmen’s Compensation Law of the State of Tennessee, and the same is found by the court to be to the best interests of the said Paul J. Corby.”

The consent decree was entered on February 3,1975. Five months later, on July 7, 1975, the employee filed a complaint to have it set aside. This complaint alleges that:

III.
“Subsequently on the 3rd day of February, 1975, Donald B. Oakley, an attorney for the defendant, notified the plaintiff to be in Greeneville, at which time he was directed to sign a joint complaint which asked for approval of a 20% permanent partial disability to the right arm for 40 weeks at $62.00 per week and said lump sum being for $2,480.00. Your plaintiff has an approximate eighth grade education and had no benefit of counsel and did as he was directed. Said settlement provided that he was to receive medical service for one year after the entry of the judgment.
IV.
“He has been advised by Dr. Bell, since the date of the hearing, on May 16, 1975, that he would not be able to return to construction work, that an operation is necessary because of a condition which he found on examination, that the doctor does not know whether this operation will be successful, so that he is now advised that his disability is considerably more than it was told to the court and to him at the time of the settlement of this case.
* * * * * *
VI.
“Because of his ignorance of the law, and especially the workmen’s compensation act provisions, (which even attorneys and respectfully but nevertheless our Honorable Courts have a difficult time in keeping up with) his financial strain, lack of education, lack of benefit of legal advice, pressure of the insurance company’s adjuster, but especially his rating by the defendant insurance company’s doctor, which doctor knew or should have known at the time of the hearing on February 3, and as disclosed by his examination of May 16, 1975, that the award was inadequate, and if this court is determined to have jurisdiction, he is entitled to a new hearing.”

The complaint contains a tender into court of the sum of $2,480.00, which plaintiff had received under the lump sum settlement agreement, and concludes with a prayer that the decree be set aside and “he be granted a trial upon his disability and that he be awarded permanent partial disability benefits commensurate with his injury and the new facts ascertained since the judgment.” As already noted, the court, after hearing arguments, granted the motion of the defendants for a summary judgment and dismissed the complaint.

In considering whether or not the Chancery Court erred in entering the summary judgment, we assume to be true all facts alleged in the petition and the inferences which may fairly and legitimately be drawn therefrom, since the defendant filed no answer, affidavits, or other documents. Thus, the real question would appear to be whether or not the complaint states a claim upon which relief may be granted.

At the outset, it should be noted that according to the complaint, the employee received documents on March 24,1975, from the Division of Workmen’s Compensation acknowledging receipt of papers concerning the consent decree and informing him of his right to ask a reconsideration of the settlement within thirty days of receipt of such documents. Since the complaint herein was filed more than thirty days thereafter, it is clear that plaintiff has no right to a reconsideration as provided by T.C.A. § 50 — 1006. Reams v. Trostel Mechanical Industries, infra.

Although workmen’s compensation awards, which are payable periodically for more than six months, may be subsequently modified at the instance of either party in the event of an increase or decrease of incapacity due to the injury, decrees approving lump sum settlements are not subject to modification at the instance of either party although the disability of the employee may increase or decrease subsequent to the entry of such decree. Lump sum settlement decrees, except for the limited review permitted by T.C.A. § 50 — 1006, are final. T.C.A. § 50-1025; Reams v. Trostel Mechanical Industries, Tenn., 522 S.W.2d 170 (1975). The statute, T.C.A. § 50-1025, has the effect of rendering final all valid consent decrees approving lump sum settlements of workmen’s compensation claims. By entering into lump sum settlements, both parties run a risk of injury. The employee runs the risk that his disability may increase in the future and the employer runs the risk that the disability of the employee may decrease in the future, but both parties are bound and foreclosed by the entry of a valid decree approving a lump sum settlement.

But, a consent decree approving a lump sum settlement of a claim under the Workmen’s Compensation. Act, like any other judgment or decree, may be set aside if it is vitiated by mistake, fraud, or other defect specified in Rule 60.02, Tennessee Rules of Civil Procedure.

Although it is inartfully drafted, the instant complaint, in our opinion, alleges such a defect. This Court, in Central Franklin Process Company v. Gann, 175 Tenn. 267, 133 S.W.2d 503 (1939), held that a pleading alleging facts very similar to those presented in the instant case stated a cause of action for relief from a judgment approving a lump sum settlement of a claim under the Workmen’s Compensation Law upon the theory that said decree had been based upon a mistake of fact respecting the extent of the employee’s disability, which mistake was induced by statements of a physician employed by the employer to treat the employee’s injury. In that case, the petition, which sought to set aside the lump sum settlement decree, alleged that the employee was advised by the employer’s physician that an arthritic condition of her back and hip could not be attributed to the accident which she had suffered on the job and that the company was not liable for that condition. It was further alleged that, relying solely upon this statement of fact made to her and to the court by the company’s physician, she agreed to accept a lump sum payment for disability to her arm only, “being unequivocally advised that the condition in her back had no connection with the accident.” Said petition further alleged that “since the original order in this cause was entered she has gone to other medical authorities who have examined her and x-rayed her, and who now advise her positively that the condition of her back is due solely to the accident,” and that:

“Accordingly, petitioner alleges that she entered into the settlement agreement while under a mistake of facts, and into which she was led by defendant’s representatives, and the sum of $92.12 which she received as compensation for permanent partial disability of her arm is grossly inadequate to compensate her for her injury, which she now avers has resulted in her total and permanent disability.”

It was also alleged that the employee entered into said compromise settlement without the benefit of legal counsel.

In holding that the petition stated a cause of action, this Court said:

“No specific charge or fraud is made in the petition. . . . There can be no doubt that the Court, the defendant and the petitioner were misled by the erroneous report of Dr. Campbell. This was a mistake of fact. The only remedy available to the petitioner was a writ of error coram nobis. When her condition was discovered by Dr. Marchbanks thirty days after the order of July 16th, the court had lost control of the matter. No error of law had been committed. The order approving the settlement was an error based upon mistaken fact.
* * * * * *
“The Court correctly overruled the defendant’s demurrer. The petition as originally filed and as later amended states a cause of action.” Central Processing Company v. Gann, supra, at 508, 510.

The holding of the Gann case has been reaffirmed in Lindsey v. Hunt, 215 Tenn. 406, 384 S.W.2d 441, 444, 446 (1964). See also Eller Brothers, Inc., et al. v. Perkins, 223 Tenn. 152, 443 S.W.2d 440 (1969), which, inferentially, at least, reaffirms the Gann holding.

The gist of the complaint in the instant case is that the employee, ignorant of his legal rights and unrepresented by counsel, was induced by the representation of Dr. Bell that his injury had reached maximum improvement and that his residual permanent disability amounted to only ten percent impairment of his right arm to enter into a lump sum settlement providing compensation for twenty percent permanent partial disability to the right arm and for such medical benefits as might be provided or approved by Dr. Bell through January 31, 1976, although said physician knew or should have known at the time said consent decree was entered on February 3, 1975, that his disability was much greater, in that, he would not be able to return to construction work and would have to undergo further surgery which might or might not be successful. In our view, the complaint here, as in the Gann ease, supra, states a claim for relief upon the ground that the consent decree was based upon a mistake of fact induced by the alleged erroneous statement of Dr. Bell respecting the extent of the employee’s injury and consequent disability.

It should be clearly understood, however, that we construe the complaint to allege a mistake respecting the facts existing at the time the consent decree was rendered; i. e., the extent of the employee’s then existing disability. A mistake in estimating the extent to which an employee’s disability may increase in the future can have no effect upon the validity of a consent decree approving a lump sum settlement agreement.

The summary judgment of the Chancery Court is reversed and the cause is remanded for a hearing on the merits.

Costs incurred in this Court are taxed against appellee and surety.

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


author: TODD, Judge.

text:
    Beulah JOHNSON, Individually and as Executrix of the Estate of Eulola Deathridge, Deceased, et al., Proponents-Appellees, v. Mrs. M. A. (Nora) STEELE, Contestant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 27, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      Maddux, Moore & Jones, Cookeville, W. Gary Blackburn, Ortale, Kelley, Herbert & Crawford, Nashville, for proponents-appel-lees.
    Mitchell & Mitchell, Sparta, for contestant-appellant.
   OPINION

TODD, Judge.

This is a will contest wherein the contestant Mrs. M. A. (Nora) Steele, has appealed from a directed verdict in favor of the will.

The executrix-appellee has moved to dismiss the appeal because the bill of exceptions is not complete and all of the assignments of error require a review of the evidence. The bill of exceptions, at page 56-63 recites:

“AT THIS TIME, THE DEPOSITION OP MRS. NORA STEELE WAS READ INTO THE RECORD. THE READING OF THE DEPOSITION PROCEEDED AS FOLLOWS:
(Mr. Moore began reading the direct examination and continued until the following objection was made.)”

Thereafter various objections and rulings are recorded. The contents of the deposition do not otherwise appear in the bill of exceptions.

Appellant insists that the motion to dismiss should be overruled because the bill of exceptions was filed in accordance with § 27 — 110, T.C.A., appellees were given ample opportunity to object to any omissions and failed to do so. The record does not support this insistence.

The bill of exceptions contains five volumes. At the conclusion of Volume I (page 90) is the following notation:

“THIS, TOGETHER WITH THE DEPOSITION OF MRS. NORA STEELE AND EXHIBITS 1 THROUGH 4, WHICH WERE FILED WITH THE CLERK AS PART OF THE EVIDENCE IN THIS CAUSE, WAS ALL OF THE EVIDENCE INTRODUCED AT THE FIRST DAY OF THE HEARING OF THIS CAUSE.”

Page 91 contains an undated certificate of the Trial Judge and a certificate of filing in the office of the Trial Clerk on June 16, 1975.

Page 92 contains a certificate of a notary public dated June 10, 1975.

Volumes II, III and IV contain no authentication whatsoever. Volume V concludes with the following notation on page 570-D:

“THE FOREGOING IS ALL THE PROOF ADDUCED UPON THE TRIAL OF THIS CAUSE.”

On page 571-D is a duplicate of the previously mentioned certificate of the Trial Judge and Clerk.

On page 572 — D is a certificate of a notary public dated June 16, 1975.

From the above, especially the absence of any date on the authentication of the Trial Judge, it is impossible to determine that, after the proposed bill of exceptions was lodged with the Clerk, a period of ten days elapsed before authentication by the Trial Judge during which period appel-lee had opportunity to object to omissions.

Moreover, the fact that the reading of the deposition of contestant was expressly recorded in the bill of exceptions left the reasonable impression that it (the deposition) would be appended to the bill of exceptions in proper manner. . Under these circumstances, appellees were not under a duty to object to an omission (of the deposition as an attachment) which did not actually occur until the completion of the authentication by the Trial Judge.

The insistence of appellant (that appellees waived the omission by failure to object) presents a serious question as to the relative duties of appellant and appellee in the preparation of a bill of exceptions. This Court does not conceive that § 27-110 T.C.A. alters the traditional and well established burden of the appellant to supply a proper record. Certainly, it does not authorize an appellant to lodge a patently incomplete bill of exceptions thereby to shift to appellee the burden and expense of furnishing the remainder. Generally, the objections contemplated by the statute relate to the accuracy and/or authenticity of the bill of exceptions. If, after opportunity for objection and failure to object, the Trial Judge authenticates a bill of exceptions which is complete on its face, then his authentication is final and neither party may thereafter complain of an omission.

Where a deposition or exhibit is not mentioned at all in the bill of exceptions, and the bill of exceptions is certified as complete, then the bill of exceptions will be accepted as complete on appeal.

If, however, with or without objection, the Trial Judge approves a bill of exceptions which shows on its face that it is incomplete, the bill of exceptions cannot be considered complete, regardless of a certificate of completeness by the Trial Judge. A recitation in a bill of exceptions that a deposition was read or exhibit introduced creates a requirement that the deposition or exhibit be properly transmitted with the record. A failure to properly transmit a deposition or exhibit mentioned in the bill of exceptions renders the bill of exceptions incomplete.

The appellee is justified in relying upon appellant and the Trial Judge to authenticate and include all depositions and exhibits mentioned in the bill of exceptions. Appellee does not have the burden of being present at the certification to make sure that all such mentioned depositions and exhibits are included.

To sustain the insistence of appellant would amount to allowing the appellant to designate favorable parts of the bill of exceptions and to exclude unfavorable parts unless demanded by appellee. The statute, §§ 27-328, 324, T.C.A., permits such designation of parts of the technical record, but not of the bill of exceptions. Kelly v. Cannon, 22 Tenn.App. 34, 117 S.W.2d 760 (1937).

The Rules of this Court permit abridgement of the bill of exceptions by stipulation, but not by designation and failure to object. Rule 5 of the Rules of this Court provides in part as follows:

“6. Bill of Exceptions — The bill of exceptions may be abridged by stipulation of counsel approved by the Trial Judge. If it is made to appear to this Court that any party has unreasonably refused to agree to a proper abridgment of the record, such party may be taxed with the part of the costs attributable to the preparation of that part of the record required by such refusal.
“7. Omitted Material — In all cases of abridgment of the bill of exceptions, the Trial Judge shall certify as to the general nature of the omitted matter and shall further certify that such omitted matter is immaterial to the issues on appeal.”

Appellant cites North American Capital Corporation v. McCants (Tenn.1974), 510 S.W.2d 901; however, the opinion in that case states,

“The case comes to this Court by an agreed stipulation of facts.” 510 S.W.2d, p. 902.

Appellant cites Norris v. Anderson, 60 Tenn.App. 261, 445 S.W.2d 927 (1969); however, that case involved the absence of a specific statement of completeness. The opinion states:

“[2] While we have numerous cases holding that the bill of exceptions must show on its face that it contains all the evidence considered by the Trial Court, our courts have held in several cases that the specific words, ‘This is all the evidence’, are not required in order that the bill be considered. See History of a Lawsuit, 8th Edition, Page 496, and Grider v. Fiske, 174 Tenn. 243, 124 S.W.2d 709.” 60 Tenn.App., p. 267, 445 S.W.2d, p. 929.

In State ex rel. Hanover v. Stewart, 46 Tenn.App. 75, 326 S.W.2d 688 (1959), this Court held that where a bill of exceptions recites that it contains all the evidence, but it affirmatively appears (from the bill of exceptions) that other evidence was introduced which was or might have been material at the trial and the consideration of such omitted evidence is material to issues on appeal, the recital of completeness will be ignored. In the same case it was held that an incomplete bill of exceptions would not be stricken where the omitted material could throw no light on the legal questions presented on appeal.

In Zanola v. Hall, 43 Tenn.App. 298, 307 S.W.2d 941 (1957), this Court overruled objections to an incomplete bill of exceptions where the Trial Judge certified, “This is all the evidence in the case material to the appeal.” The omitted testimony related only to the nature and extent of plaintiff’s injuries, whereas the issue on appeal was whether or not the defendant was at fault.

Appellant next points out that the deposition of the contestant was not “filed as an exhibit to the bill of exceptions during the trial.” This Court does not understand that a deposition must be “filed as an exhibit” during the trial. The statute, §§ 24 — 932, 933 provides that depositions shall be filed with and endorsed by the Clerk as soon as transcribed; but, when depositions or parts thereof are read in open court, the words read should be preserved as part of the evidence (bill of exceptions), or the deposition itself should be designated by the Trial Judge as a legitimate substitute therefor.

Appellee has exhibited to the motion to dismiss a purported photostatic copy of the omitted deposition. Examination of said exhibit discloses the notation in script, “filed 10-30-74.” This notation, unaccompanied by any certificate of the Trial Clerk is insufficient to authenticate the instrument for formal consideration by this Court. Had the deposition been duly filed with the Trial Clerk and had it been duly transmitted in the technical record, it could hardly be considered because the bill of exceptions shows that parts, but not what parts of the deposition were read.

Appellant next insists that there is no showing that this Court would benefit from the inclusion of the deposition in the record, citing Anderson v. Carter, (Tenn.App.1974), 512 S.W.2d 297; however, in that opinion it is stated,

“Counsel . . . conceded that the transcript . . . was correct and complete except . . . [for] argument of counsel and comments of the Chancellor . . 512 S.W.2d 300,
and
“Nevertheless, since it appears that ap-pellee does not question the correctness of the record from the Board and does not assert that any benefit would be derived by this Court from the argument and comments which were omitted from the bill of exceptions, no useful purpose would be served by such a remand for further proceedings.” 512 S.W.2d, p. 301.

Appellant next insists that the omitted evidence was not material to the disposition of this appeal, citing Draper v. Great American Insurance Company, 224 Tenn. 552,458 S.W.2d 428 (1970). In that opinion, it was stated, “ . . . we do not consider the (omitted) exhibits to be material [to] . this appeal.” 224 Tenn., p. 555, 458 S.W.2d, p. 429. In the present case, the omitted evidence is considered material to the appeal.

Appellant insists that, since the appeal is from a directed verdict against the contestant, the issue is whether there is any evidence to support a verdict against the will. It is insisted that the incomplete bill of exceptions contains some evidence to support a verdict against the will and that, therefore, the directed verdict should be reversed regardless of other, omitted evidence.

It should be remembered that the deponent was the sole contestant in this case.

Sworn testimony of a party to a case is a conclusive admission, binding upon him in the disposition of the case, unless there is credible evidence of other facts which would negative the effect of the fact admitted by the party. Osborne v. Hartford Acc. & Indemn. Co., 63 Tenn.App. 518, 476 S.W.2d 256 (1972).

An interested party is bound by his testimony which contains a material statement of fact negating his right of action or defense if no more favorable testimony appears on the same subject. Harvey v. Wheeler, 57 Tenn.App. 642, 423 S.W.2d 283 (1967).

See also Wagner v. Nivin, 46 Tenn.App. 581, 332 S.W.2d 511 (1959), wherein it was held that, where plaintiff on oath disclaimed each and every charge in her declaration, she was estopped to complain of a directed verdict against her.

Therefore, it cannot be said that the sworn testimony of the sole contestant in a will case could not reasonably be material to the issue of the correctness of a directed verdict against said contestant. This being true, the omission of the parts of the deposition read to the court renders the bill of exceptions incomplete, and the motion to strike the bill of exceptions must be sustained.

On appeal, a directed verdict must be affirmed where the bill of exceptions does not contain all of the evidence. Stockstill v. Life & Casualty Ins. Co., 16 Tenn.App. 538, 65 S.W.2d 243 (1934).

The judgment of the Trial Court is affirmed. Costs of this appeal are adjudged against the appellant.

Affirmed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: MATHERNE, Judge.

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, Appellee, v. Tom M. SCHRIVER, Appellant.
    Court of Appeals of Tennessee, Western Section.
    May 27, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Frank B. Bird, Bird, Navratil & Bird, Maryville, for appellant.
    Robert R. Campbell, Hodges, Doughty & Carson, Knoxville, for appellee.
   MATHERNE, Judge.

The issue at bar is whether, under Tennessee law, a futures contract made through the Chicago Mercantile Exchange constitutes an illegal gaming transaction.

I.

The defendant Schriver, through the plaintiff Merrill Lynch, Pierce, Fenner & Smith, Incorporated, entered into certain sell order agreements for 42 carloads (contracts of 36,000 pounds each) of February, 1975 pork bellies, which transactions began on September 23, 1974 and were concluded September 26, 1974. As a result of these contracts and the action of the market in the commodity, the defendant allegedly lost $40,620. The defendant executed a promissory note in favor of the plaintiff in the face amount of $28,572 as settlement of the amount due under these transactions. The note became in default, and the plaintiff sues to collect the balance due of $23,572, plus interest. The defendant, by answer, claims that the note is void because it constitutes payment for a gaming transaction as contemplated by T.C.A. § 39-2020.

The defendant filed a counter-claim to recover the $40,620 he allegedly lost in the transactions. The plaintiff answered the counter-claim, alleging that the transactions did not violate T.C.A. § 39 — 2020, and that the transactions are legal and enforceable pursuant to the provisions of T.C.A. § 39-2028.

The plaintiff filed a motion for summary judgment and attached thereto the affidavit of the manager of the plaintiff’s Knoxville, Tennessee office. This affidavit was to the effect that the transactions for the defendant were executed on the Chicago Mercantile Exchange, a legitimate produce and commodity exchange; that the transactions were accomplished in full conformity with the rules, regulations, customs and usages of that exchange and the regulations of the Secretary of Agriculture; that the transactions for the defendant were handled in accordance with a Commodity Account Agreement which defendant had entered into with the plaintiff (copy attached); that the transactions were evidenced by confirmation documents (representative copy attached); and, that the plaintiff, at the time of the execution of the transactions, contemplated delivery as and when delivery became due.

The defendant filed his counter-affidavit to the effect that he began buying and selling commodities for future delivery in 1973. At no time did he accept or deliver in specie; he was never asked by the plaintiff if he intended to deliver or accept the commodity in specie; at the time he placed the order to sell the frozen pork bellies, he did not intend to deliver the same in specie, and he is of the opinion that the representative of the plaintiff with whom he dealt did not expect or intend that the commodity be delivered in specie; that at all times it was his intention to deal simply for the margin or the prospective fall in the price of pork bellies and to buy and offset as soon as a satisfactory decrease in price was realized, or, alternatively, in the event of a rise in price, to sell as soon as possible to minimize the loss; that it is his understanding, which he proposes to prove at the trial, that at any given time there are approximately 10 times more pork bellies contracted for than are in existence; and, that the Chicago Mercantile Exchange does not unconditionally require both the buyer to accept and the seller to make actual delivery on all transactions entered into upon that exchange, as is required by law to constitute a “legitimate exchange” under T.C.A. § 89-2028.

By supplementary affidavit, the defendant alleges, and attaches supporting exhibits, that the offsetting which takes place on the Chicago Mercantile Exchange is far more than a mere substitution of parties as allowed by T.C.A. § 39-2028. The defendant claims that during the month of March 1973, the number of open commitments was for 2,693 carloads of pork bellies, and these commitments were, during that month, reduced to zero; but, of those commitments, only 409 were discharged by actual delivery. The defendant argues that these figures reflect the procedure by which offset is practiced on that exchange so as to effect a “wash-out” of about 80% or more of the contracts, thus enabling the gambling sellers and the gambling buyers to settle their wagers.

The trial judge sustained the motion for summary judgment and entered a judgment in favor of the plaintiff for $23,572, plus interest at 10%. The defendant appeals from that decision.

The parties agree that the issues presented in this lawsuit are identical to those considered by Judge Robert L. Taylor, United States District Court for the Eastern District of Tennessee, Northern Division, in the lawsuits of Paine, Webber, Jackson & Curtis v. Lambert and Merrill Lynch, Pierce, Fenner & Smith v. Lambert, 389 F.Supp. 417, opinion filed on January 27, 1975.

The trial judge adopted the reasoning and result reached in Lambert as the law of this state relative to the issue at bar.

II.

We first agree with Judge Taylor that the application of Chapter 251, Public Acts 1883 must be kept distinct and separate from Chapter 94, Public Acts 1919.

The 1883 Act, codified as T.C.A. § 39-2020, heretofore copied, declares as gaming any contract for future delivery where either of the parties, buyer or seller, is dealing simply for a margin, or on the prospective rise or fall in the price of the thing sold, and where either of the contracting parties has no intention or purpose of making actual delivery or receiving the property or thing in specie.

According to this record, the defendant was dealing simply for a margin, and he had no intent to make actual delivery of the pork bellies he contracted to sell. Under Section 39 — 2020 the contract was a gaming transaction, and the loss suffered by the plaintiff would be unenforceable as against the defendant.

The plaintiff, however, counters with the argument that the transactions are legal under the provisions of Chapter 94, Public Acts 1919, codified as T.C.A. §§ 39-2023 through 39-2029. The statute defines a “bucket shop” and declares that transactions which fall within that definition are illegal and unlawful. The definition of a “bucket shop” as set out in the 1919 Act is codified at T.C.A. § 39-2023, as follows:

[That] a bucket shop within the meaning of [This Act] is defined to be an office, store or other place wherein the proprietor or keeper thereof, or other person or agent either in his or its behalf, or as an agent or correspondent of any other person, [corporation, association, or copart-nership] ^within or without the state, conducts the business of making or offering to make contracts, agreements, trades or transactions respecting the purchase or sale or purchase and sale of any stocks, grains, provisions or other commodity or personal property wherein both parties thereto, or said proprietor or keeper contemplated or intended that the contracts, agreements, trades or transactions shall be or may be closed, adjusted, or settled according to or on the basis of the market quotations or price made on any board of trade or exchange upon which the commodities or securities referred to in such contracts, agreements, trades or transactions are dealt in and without a bona fide transaction on such board of trade or exchange, and the maintenance of any such office, store or other place of business, and the making of such contracts or agreements shall be and the same are declared illegal and unlawful.

We agree with Judge Taylor that Section 39-2023 sets up a two-fold test to determine the illegality of a particular transaction, namely, that the parties to the contract intended simply to settle on the margin and to do so without effecting a bona fide buy and sell transaction on a board of trade or exchange. It requires the presence of both elements to render the transaction illegal as a bucket shop transaction. The intent of the parties to make or receive delivery is immaterial under T.C.A. § 39-2023.

We hold that the two-fold test of illegality as set forth in Section 39-2023 is not present under the facts of the lawsuit at bar because the parties admit that there was a bona fide transaction on a board of trade. The defendant complains that the board of trade does not constitute a “legitimate exchange or board of trade” as required by T.C.A. § 39-2028; however, there is no denial that the transactions were made on the Chicago Mercantile Exchange and that the loss suffered by the plaintiff resulted from those transactions made by the plaintiff on behalf of the defendant.

Where the indicia of illegality as set out in Section 39-2023 are not established and where, as here, the contract was made on a board of trade, another part of the 1919 Act, codified as T.C.A. § 39-2028, becomes controlling. That section provides that contracts to buy and sell for immediate or future delivery any property or commodity as set out in Sections 39-2023 through 39-2029, where the orders to buy or sell were made on and in accordance with the rules of a legitimate board of trade, are lawful:

. where the rules or regulations thereof (board of trade) forbid the practice or mode of trading hereinbefore declared to be unlawful (bucket shops as covered by Section 39-2023 through 39-2027), and where said rules or regulations require both the buyer to accept and the seller to make delivery upon all transactions entered into upon said exchange, or board of trade, . . . and provided further, that no such contract for the purchase or sale as aforesaid, shall be deemed unlawful as lacking the essential elements of actual delivery thereon, for the reason that said contract has been subsequently offset or settled between the members of such exchange or board of trade with or through whom any such contract or contracts were made or executed, where the only effect of said offset or settlement has been to substitute other parties, either as buyers or sellers, for those with or through whom the transaction was originally made . (Parentheses added)

It is thus apparent that the transaction in question is lawful under T.C.A. § 39-2028: (1) if the rules and regulations of the Chicago Mercantile Exchange forbid the practice or mode of trading declared to be unlawful under Section 39-2023, (2) if those same rules and regulations require both the buyer to accept and the seller to make delivery upon all transactions not settled by offset or settled between the members of the exchange, and (3) if any offset or settlement has the effect of merely substituting other parties for those with whom the transaction were originally made.

The defendant’s argument that there was no intention on his part, nor on the part of the plaintiff’s representative with whom he dealt, to make and receive actual delivery of the pork bellies is without merit. T.C.A. § 39-2023 makes no reference to delivery or the intent to deliver; T.C.A. § 39-2028 does not require actual delivery. We hold that the delivery contemplated by T.C.A. § 39— 2028 may be accomplished by offset. In Palmer v. Love (1934) 18 Tenn.App. 579, 80 S.W.2d 100, this Court, in considering the 1919 Act, held as follows:

A “set-off” is a method by which a contract to purchase is set off against a contract to sell without the formality of an exchange of warehouse receipts or other actual delivery and, in legal effect, is a delivery.- (Emphasis added)

We agree with Judge Taylor that the rules and regulations of the Chicago Mercantile Exchange meet the requirements of T.C.A. § 39-2028, and it is, therefore, a legitimate exchange as contemplated by statute. See Chapters 7, 9 and 11, Rules of the Chicago Mercantile Exchange. [Filed and authenticated by the trial judge as being before him on consideration of the motion for summary judgment; Rule 14(8), Supreme Court of Tennessee.]

We also note the expressed purpose for the enactment of T.C.A, § 39-2028. That section provides in part as follows:

The plain intent of this section is while declaring unlawful all the transactions conducted in and through a bucket shop as described and defined in §§ 39-2023— 39-2029 to make lawful and enforceable and to withdraw from the provisions of the gaming and wagering laws, all transactions executed upon and in accordance with the rules and regulations of a legitimate produce, stock, or cotton exchange or board of trade, and §§ 39-2023 — 39-2029 shall be liberally construed at all times so as to effectuate this object. (Emphasis added)

It is thus apparent that T.C.A. § 39-2020, a gaming statute, is not applicable to a factual situation which falls within the provisions of T.C.A. § 39-2028. It is this failure to recognize the different purposes of the two statutes which has apparently caused the defendant to misinterpret the opinion of this Court in Easterly v. Myers (1940) 24 Tenn.App. 688, 148 S.W.2d 640.

In Easterly, the plaintiff was a farmer and livestock dealer, and the defendant was a speculator in stocks and commodities. The parties entered into an agreement to engage in the buying and selling of grain through futures contracts to be executed through a broker in Knoxville, Tennessee. The plaintiff advanced $14,000 cash for the purpose of carrying out the agreement between the parties. The defendant advanced no money for the endeavor, except one-half of a $1,000 loan which the parties had made for the purposes of the undertaking. The venture rather promptly failed, and the plaintiff sued the defendant for one-half the amount which the plaintiff had advanced for the purpose of the common enterprise. This Court, speaking through Judge McAmis, found that the parties in their agreement never anticipated that delivery would be made of the various commodities bought or sold, and that they entered into their agreement with the express intention of gambling on the futures market. The court held the agreement between the parties to be a gaming contract under T.C.A. § 89-2020 and dismissed the plaintiff’s lawsuit. There was no question made nor claim asserted based upon any transaction on an exchange or board of trade. In Easterly, the contract between the parties, upon which the plaintiff sued, was not subject to, nor tested by, any provision of the 1919 Act; Easterly does not conflict with the 1919 Act nor any decision interpreting that statute. The decision in Easterly was, and it so remains to this day, a proper application of T.C.A. § 39-2020.

Section 39 — 2020 remains a gaming statute of Tennessee, and the “intent to make actual delivery test” is applicable to all transactions which fall within the provisions of that statute. An expressed intent of the 1919 Act is . “to withdraw from the provisions of the gaming and wagering laws, all transactions executed upon and in accordance with the rules of a legitimate . . . board of trade . . .” If the transaction in question complies with T.C.A. § 2028, it is declared to be legal and enforceable even though it might offend the statute relied upon by the defendant, namely, T.C.A. § 39-2020, a gaming statute.

III.

The courts of Tennessee have consistently held that transactions within the purview of T.C.A. § 39-2028 are enforceable. Shepard & Gluck v. Thomas (1922) 147 Tenn. 338, 246 S.W. 836; Palmer v. Love, supra; Cloud Cotton Company v. White (1961) 51 Tenn.App. 212, 366 S.W.2d 144.

And, the burden of proving a transaction to be gaming rests upon the party who makes that assertion. Palmer v. Love, supra; Cloud Cotton Company v. White, supra.

The defendant’s only assignment of error in this Court is as follows:

The trial judge erred in entering judgment against Schriver without a hearing to resolve the genuine issues as to material facts raised by the affidavits — namely, the bona fide intentions of Merrill Lynch and Schriver as to actual delivery in specie and the bona fide requirements of the Chicago Mercantile Exchange as to actual delivery on all transactions made on said Exchange.

As hereinbefore pointed out, the transaction, upon which the plaintiff sues, falls within the provision of T.C.A. § 39-2028, and this statute does not require an intent of actual delivery nor delivery in specie in order for a contract to be enforceable; the delivery contemplated by T.C.A. § 39 — 2028 may be actual delivery or delivery of offset; and, the rules and regulations of the Chicago Mercantile Exchange meet the requirements of T.C.A. § 39-2028.

There is no dispute as to any material fact, and the plaintiff is entitled to judgment as a matter of law. The defendant’s assignment of error is accordingly overruled; and, on the grounds as herein stated, the judgment of the trial court is affirmed. The cost of this appeal is adjudged against the defendant-appellant for which execution may issue. This cause is remanded to the trial court for the enforcement of its judgment.

CARNEY, P. J., and NEARN, J., concur.

      . Future contracts without contemplating actual delivery declared gaming contracts. — Any sale, contract, or agreement for the sale of bonds, stocks, grain, cotton, or other produce, property, commodity, article, or thing, for future delivery, where either of the contracting parties, buyer or seller, is dealing simply for the margin, or on the prospective rise or fall in the price of the article or thing sold, and where either of the said contracting parties has no intention or purpose of making actual delivery or receiving the property or thing in specie, shall be deemed and declared gaming. [Acts 1883, ch. 251, § 1; Shan., § 3166; Code 1932, § 7819.]

      . On appeal, the United States Court of Appeals for the Sixth Circuit filed the following order on October 6, 1975: The appeal from the district court’s grant of summary judgment for plaintiffs having come on to be heard, and the court having considered the briefs and record on appeal and the argument of counsel, upon consideration, it is ORDERED that the judgment be, and it hereby is AFFIRMED for the reasons set forth in the opinion of the district court.