author: GREENE, Judge.

text:
    Nelda Jo POEPPELMEYER, (formerly known as Nelda Jo Baker), Plaintiff-Appellant, v. SHELTER LIFE INSURANCE COMPANY, an insurance corporation, and Judy A. Smith, Defendants-Respondents.
    No. 13881.
    Missouri Court of Appeals, Southern District, Division Three.
    March 19, 1985.
    Donald Rhodes, Bloomfield, for plaintiff-appellant.
    David E. Blanton, Sikeston, for defendants-respondents.
   GREENE, Judge.

Plaintiff, Nelda Jo Poeppelmeyer, formerly Nelda Jo Baker, sued defendants, Shelter Life Insurance Company and Judy A. Smith, alleging breach by defendants of an oral contract to provide her with health insurance. During jury trial, and at the close of plaintiff’s evidence, the trial court sustained defendants’ motion for directed verdict, and entered judgment for defendants, for the reason that plaintiff had not made a submissible case. This appeal followed.

In her sole point relied on here, Nelda contends that she offered sufficient evidence at trial to prove the five elements necessary to show an oral contract of insurance: subject matter, risk insured against, amount of coverage, duration of risk and premium, citing Chailland v. MFA Mutual Insurance Co., 375 S.W.2d 78, 81 (Mo.1964). Defendants argue that even if it were conceded that Nelda had offered sufficient proof on the five elements referred to in Chailland, she did not offer proof that Lee Hester, an employee of defendant Judy Smith, whom Nelda says entered into the contract with her, had the authority to do so.

On appeal from the trial court’s granting of defendants’ motion for directed verdict, in determining whether Nelda met her burden of presenting a submissible case, we must review all evidence, and the reasonable inferences therefrom, in the light most favorable to Nelda. Mercer v. Thornton, 646 S.W.2d 375, 376 (Mo.App.1983).

Viewed in this light, the evidence introduced at trial was that Nelda Jo Baker was pregnant by Billy Poeppelmeyer Jr., to whom she was engaged. Billy was carrying other insurance with Shelter, and told Lee Hester, a salesman for the Judy A. Smith Insurance Agency, that Nelda was pregnant and needed health insurance. Judy Smith was an insurance broker, and agent for Shelter. Hester allegedly told Nelda and Billy that her normal child delivery expenses would not be covered, but that if she had any complications that required medical care, they would come under policy coverage and would be paid.

Nelda, fearing problems because of a prior tubal ligation, wanted health insurance on that basis, and signed an application for health insurance. The application, dated September 30, 1983, was for a “Shield Series” policy with Shelter. The policy requested excluded maternity benefits and the premium was $49.39 a month. In the application, Nelda stated that she was pregnant, and had previously had a tubal ligation. Above Nelda’s signature on the application, the following language appears:

The owner declares to the best of his or her knowledge and belief that the answers recorded in this application are complete and true, and agree as follows: _ (5) Only the SHELTER Life Insurance Company at its Home Office can make or modify contracts or waive any SHELTER Life Insurance Company’s rights or requirements, and then only in writing. No agent of SHELTER Life Insurance Company nor any Medical Examiner is authorized to accept or pass upon insurability.”

At the time Nelda signed the application, Billy paid the first month’s policy premium, and later paid for an additional month. Billy and Nelda were married in October of 1983. On October 31, Nelda began having problems with her pregnancy, and suffered a miscarriage on November 8. Her medical expenses resulting from those problems totalled $2,836.12.

On November 18, 1983, Shelter issued health insurance policy R-85448 insuring Nelda, with an effective date of October 1, 1983. The policy contained an exception endorsement stating the policy was modified so that “it shall not cover any loss caused or contributed by: current pregnancy, including complications thereof.” The policy was delivered to the office of Judy Smith. Nelda refused to sign the exception endorsement and Shelter refused to deliver the policy to her. Nelda’s claim for her expenses was denied by Shelter, and the two months’ premium on the policy, total-ling $98.78, was returned to Nelda.

The policy, which is standard, provides that charges for services, supplies or treatment for a pre-existing condition would not be covered if incurred during the first two years of coverage. Pre-existing condition is defined in the policy as any sickness or condition of a covered person arising or present during the two-year period immediately preceding the effective date of the policy for which the covered person received medical advice or treatment or which caused symptoms which would have caused an ordinarily prudent person to seek medical advice within 12 months prior to the effective date.

General provision (1.) of the contract reads “ENTIRE CONTRACT: CHANGES: Your Policy, the application and attached papers are the entire contract between you and us. No change in your Policy will be effective until approved by one of our officers. This approval must be noted on or attached to your Policy. No agent may change your Policy or waive any of its provisions.”

In support of her appeal, counsel for Nelda argues that Hester, as an agent for Judy Smith and Shelter, had apparent authority to make an oral contract with Nelda binding Shelter to pay expenses incurred for treatment of complications (miscarriage) from her pregnancy. He contends that the apparent authority amounted in law to real authority and, therefore, Shelter and Judy Smith were bound by Hester’s representations, even though they were contrary to private limitations placed on his authority by Shelter, citing Baker v. St. Paul Fire & Marine Insurance Co., 427 S.W.2d 281, 286 (Mo.App.1968). Counsel’s representations here as to the holding of Baker are correct as far as they go, but he conveniently omits the exception to the general rule as stated in that case as follows:

“But an insurance company is bound by the acts of an agent acting within the scope of his apparent authority, or within the powers which it held out the agent as possessing, unless the limitations upon the agent’s powers are known by or brought to the notice of the insured. ” (Emphasis ours.)

Baker v. St. Paul Fire & Marine Insurance Co., supra, at 286.

The application for insurance that Nelda signed gave her clear and plain notice that Hester had no power to make or modify a contract with her, or to waive any of Shelter’s rights or requirements, or to pass upon Nelda’s insurability. By reason of such notice, Nelda had no right to rely on any representations Hester may have made to her regarding coverage for complications arising from a pre-existing condition. Distassio v. American United Life Insurance Co., 238 Mo.App. 279, 283, 179 S.W.2d 610, 612-613 (1944). See also Hutchinson v. Metropolitan Insurance Co., 293 S.W.2d 307, 312-313 (Mo.1956), and Hallbrook v. Atlas Life Insurance Co., 234 S.W.2d 628, 638 (Mo.App.1950).

Since Nelda had no right to rely on anything Hester may have told her regarding policy coverage and her insurability, and since she produced no proof of any contract with Shelter containing coverage for complications arising from her pregnancy, she failed to make a submissible case. The trial court did not err in sustaining defendants’ motion for directed verdict.

Judgment affirmed.

CROW, P.J., and TITUS and FLANI-GAN, JJ., concur.


source: Caselaw Access Project

author: PRITCHARD, Presiding Judge.

license: Public Domain

text:
    In re the Marriage of Norman M. SANDIN, Respondent, v. Joyce U. SANDIN, Appellant.
    No. WD 35936.
    Missouri Court of Appeals, Western District.
    March 19, 1985.

      James A. Rahm, Carrollton, for appellant; Rahm, Rahm & Crawford, Carrollton, of counsel.
    Robert H. Ravenhill, Marshall, for respondent; Rasse & Ravenhill, Marshall, of counsel.
    Before PRITCHARD, P.J., and SHAN-GLER and DIXON, JJ.
   PRITCHARD, Presiding Judge.

In this dissolution of marriage case, the parties were married on August 17, 1964, and the decree of dissolution terminated the marriage on April 5, 1984, with a final decree regarding matters of child custody and division of property being entered on April 26, 1984.

Appellant wife contends error in: (1) the division of marital property; (2) the trial court’s failure to award her maintenance; (3) the grant of joint custody to the parties of their nineteen year old son, a college student; and (4) the overruling of her motion for sanctions against the husband for his walking out of a deposition nine days before trial, and the refusal of a request for continuance in order further to depose the husband.

At the time of trial, the wife, a nurse, earned $24,300 annually. The husband’s base salary, as an industrial engineer, was $29,400, but his gross income in 1983 was about $31,000. After separation in September, 1983, the wife has lived in the marital home with the parties’ 19 year old son when he was not attending college, and the husband lived in a mini-motor home in a trailer court.

The trial court valued and gave to the wife certain described property of a total equity value of $60,550. Included in that figure was the family home valued at $60,000 (according to the husband’s testimony which the trial court was entitled to accept), subject to a mortgage of $20,000, and property described as belonging to the son (an automobile, motorcycle and life insurance), valued at $5,400. To the husband was given property of a total value of $24,902.35, to which was added $12,500 ordered to be paid by the wife to equalize the property division (total, $37,402.35). The wife’s grant of property netted her $48,050, and even deducting $5,400 set off to her, said to be the son’s property, would give her $42,650. Each party was to pay off indebtedness on property allotted to them. It thus appears that the wife received about $5,000 more in property values than the husband, but the division is otherwise approximately equal, and such was clearly within the sound discretion of the trial court. In re Marriage of Brown, 664 S.W.2d 268[1] (Mo.App.1984), and case cited.

Although in the earlier years of the marriage the wife, as a nurse, had a greater income than the husband, the earnings of both, as acquired by each, went into the marital property under § 452.330 2., RSMo 1978. There was also a $10,000 profit from the sale of an Omaha, Nebraska, residence which went into the marital home in Missouri. Since 1973, after he obtained a college degree, the husband’s income has exceeded the wife. The contributions by earnings of each spouse to the acquisition of marital property do not seem so disparate as to convict the trial court of an abuse of discretion in not according to the wife a greater share of marital property based upon any superior earnings contributions she might have made. This particular provision of § 452.330 has not received any definitive judicial construction. But suppose that all of the contributions to marital property had been made from the husband’s earnings, the wife being a homemaker. In that situation it could not be successfully contended that the husband would be entitled to all of the marital property.

The economic circumstances of the parties, considering their incomes, do not reveal that either would be unable to support themselves adequately.

The wife charges that the husband was guilty of misconduct. He did not deny that on occasion, he drank beer and played cards, and was absent from the family without explanation for periods of time. There was no evidence that he was engaged in any meretricious relation with any member of his opposite sex. Even considering that the husband was engaged in some misconduct, that is no basis to award him an inadequate share of the marital property. Rising v. Rising, 608 S.W.2d 510, 512 (Mo.App.1980), a case holding, in effect, that misconduct of one party must impose additional burdens or hardship on the other, to entitle the latter to receive a greater proportion of marital assets. No such factors are here present.

The trial court is not required to make an equal division of marital property, but only one which is just. In this connection, it had the power to award property (here essentially the family home) to the wife and complete the division by directing the cash payment to the other. In re Marriage of Kueber, 599 S.W.2d 259, 261[1] (Mo.App. 1980), and cases cited; cf. In re Marriage of Goodding, 677 S.W.2d 332, 339 (Mo.App. 1984). No abuse of discretion here appears, nor is the division of the property against the weight of the evidence or the factors required to be considered under § 452.330.

The wife next contends that the trial court erred in not granting her maintenance. She was 48 years of age at the time of trial. She presented no evidence that her income of $24,300 annually was insufficient to meet her needs. She testified that she did have hypertension for a number of years which she had not been able to control very well. In October, 1983, she had surgical removal of a malignant melanoma from her back. She presented no medical evidence as to the probability that the malignancy would reoccur or would metastasize. She testified that if the malignancy did reoccur there was a possibility that she could not then work, but that is mere supposition. The wife’s physical condition does not rise to that established by medical evidence in McBane v. McBane, 553 S.W.2d 521 (Mo.App.1977), which held at page 524[1, 2], that where evidence showed a physical condition to exist at the time of dissolution which had substantial potentiality for disabling the wife- from remaining self-supportive, the concept of fairness required that allowances be made to provide for her future support. Note also Abney v. Abney, 575 S.W.2d 842 (Mo.App.1978), where although the wife had a brain tumor removed which left her with partial paralysis of her face, a spasmodic blinking eye, and a hearing loss in one ear, no medical evidence was introduced as to her present condition or prognosis, and she continued her employment in spite of her afflictions. The court reversed an award of maintenance saying, p. 844, that the McBane rule applies only when the potential for future inability to work is “established by evidence exceeding mere guesswork or speculation. Mere suppositions of future inability to work are not adequate.” That is the situation here and the trial court did not err in declining to award the wife maintenance.

The wife contends that the court erred in awarding joint custody of the son, born April 10, 1965, to the parties. There is no evidence that either party was unwilling actively to perform their functions as mother and father for the needs of the child. Indeed, the evidence shows that the son stays with the mother on frequent weekends while he is in college, and the husband is paying for his education costs, and testified that he would continue to do so. This does not seem to be the normal case where joint custody should be awarded under § 452.375.2(6), since the son has nearly attained his majority, and probably could decide on his own with which parent he desired to be in contact. The trial court’s order is no more than innocuous, and need not be further noticed under the circumstances.

Nine days before the trial was reset for hearing, the husband’s deposition was scheduled to be taken. He and his attorney then walked out of the deposition. The wife filed motions for sanctions and for continuance, which were overruled. The wife demonstrates no prejudice to her, i.e. that she was deprived of evidence, in the denial of the continuance. The sanctions sought are within the trial court’s discretion, as is the matter of a continuance. The wife’s last point is overruled.

The judgment is affirmed.

All concur.


author: DIXON, Judge.

text:
    Lloyd D. WEIR and Mary M. Weir, Appellants, v. Bernard J. WILMES and Cecelia E. Wilmes, Respondents.
    No. WD36015.
    Missouri Court of Appeals, Western District.
    March 19, 1985.

      James W. Whan, Maryville, for appellants.
    Dan Hale, St. Joseph, for respondents.
    Before KENNEDY, J., Presiding, and DIXON and CLARK, JJ.
   DIXON, Judge.

The plaintiffs Weir appeal from the jury’s verdict in favor of the defendants Wilmes in this surface water case. The sole issue is a claim of instructional error.

The parties filed a stipulation. From that stipulation and the pleadings, the facts appear to be as follows. Defendants, the upper landowners, installed drainage tile in a portion of their farmland, thus enabling the surface water on their land to flow into a pre-existing natural drainage ditch, a waterway. The plaintiffs’ and defendants’ farms are separated by a gravel road but the waterway leads onto the plaintiffs’ farm. After the defendants tiled their land, the water flow in the drainage ditch increased. There is no evidence the capacity of the waterway was exceeded.

The plaintiffs submitted the following verdict-directing instruction:

Instruction No. 6 .
Your verdict must be for plaintiffs if you believe:
First, defendants owned real estate as described in the evidence, and Second, the normal flow of surface water was collected and directed or permitted to be collected and directed on plaintiffs’ real estate by the tiling of defendants’ real estate, and
Third, the defendants permitted the discharge of water onto plaintiffs’ real estate in concentrated and destructive quantities, and
Fourth, such use by defendants of their real estate was unreasonable, and Fifth, as a direct result of such conduct of defendants, the plaintiffs sustained damages.

The defendants, in turn, offered the following instruction:

Instruction No. 7
Your verdict must be for defendants, if you believe that:
First, the defendants’ tiling did not collect surface water from its normal flow and did not direct or permit it to be collected and directed on the plaintiffs’ real estate, and
Second, the defendants did not discharge water onto the plaintiffs’ real estate in concentrated and destructive quantities, and
Third, the defendants are making reasonable use of their land.

The court refused the defendants’ Instruction A, a not-in-MAI instruction, which read:

Your verdict must be for defendant, if you believe that:
First, defendants’ tiling did not change the direction of the flow of natural drainage, and
Second, the tiling emptied into a natural drain-way on the defendants’ land, and Third, the emission of drainage from the tiling did not exceed the capacity of the natural drainage of the land, and Fourth, defendants were making reasonable use of their land.

The jury returned a verdict for defendants and plaintiffs appeal, asserting defendants’ affirmative converse instruction was erroneously submitted to the jury as it did not hypothesize an issue distinct from that raised by plaintiffs’ verdict director and thus tended to confuse and mislead the jury.

Instruction No. 7 is a third-method or affirmative converse instruction. MAI 33.05. In generally approving the use of such a converse instruction, the Missouri Supreme Court has stated, “Although it is undisputed that ‘[a] defendant has the option to submit its theory of the case by way of a converse instruction, without being required to directly negative the plaintiff’s theory of the case,’ Bollman v. Kark Rendering Plant, 418 S.W.2d 39 (Mo.1967), a third-method converse must submit an ‘hypothesized ultimate issue which if true would defeat plaintiff’s claim.’ ” Morse v. Johnson, 594 S.W.2d 610, 613-14 (Mo. banc 1980), citing, Oliver v. Bi-State Development Agency, 494 S.W.2d 49 (Mo.1973). “There is authority that it is error to use the affirmative converse instruction to submit the same issue that is submitted in plaintiff’s verdict director on the theory that this can only be done with a true converse instruction.” E.L. Thomas, Converse Instructions Under MAI, 42 Mo.L. Rev. 175, 203 (1977); See, Stover v. Patrick, 459 S.W.2d 393 (Mo. banc 1970); Wilson v. Checker Cab Co., 431 S.W.2d 122 (Mo.1968); Oliver v. Bi-State Development Agency, 494 S.W.2d 49 (Mo.1973); See also, Morse v. Johnson, 594 S.W.2d 610 (Mo. banc 1980); Associated Underwriters v. Mercantile Trust Co., 576 S.W.2d 343 (Mo. App.1978); Lawrie v. Continental Casualty Co., 555 S.W.2d 347 (Mo.App.1977). Because the defendants’ affirmative converse instruction submitted exactly the same issues, albeit in different language, as did ° the plaintiffs’ verdict director, and did not submit an additional or different issue, it was erroneous under the authority cited.

Plaintiffs’ verdict-director, Instruction No. 6, was based on a misapprehension of surface water law in Missouri. Instruction No. 6 was the same as the instruction approved in Looney v. Hindman, 649 S.W.2d 207 (Mo. banc 1983). In Looney, the court noted three types of surface water situations that are generally actionable:

(1) the collection of surface water into an artificial channel or volume and discharge of it in increased and destructive quantities upon the servient estate to its damage, (2) the draining off of surface waters in such a manner as to exceed the natural capacity of the drainways and (3) the discharging of surface waters onto adjacent lands to which it would not naturally drain.

Id. at 211, citing Borgmann v. Florissant Development Co., 515 S.W.2d 189, 194-95 (Mo.App.1974). The Looney instruction was approved in a fact situation of the first type. There is nothing in Looney to suggest that the instruction approved there should be utilized in all three types of surface water cases. The concurrence by Higgins, J., joined by Welliver, J., was upon the basis that only the first type of claim was involved. If Looney were read as plaintiffs here contend, the distinctions developed in the case law of this state as to various rules relating to surface water would be meaningless. The plaintiffs’ instruction modeled on the Looney instruction was improper here, where a natural waterway is involved.

The instant case is controlled by Roberts v. Hocker, 610 S.W.2d 321 (Mo. App.1980), which dealt with a natural waterway situation. There, the court stated that an owner may “use artificial water channels to carry off surface water in concentrated flow provided the discharge emits into a ‘ “natural surface-water channel” located on his property’ even though the method of riddance accelerates and increases the flow of surface water, provided further that the owner acts without negligence apd does not exceed the natural capacity of the natural drainway to the damage of the neighbor.” Id. at 327, citing Haferkamp v. City of Rock Hill, 316 S.W.2d 620, 625 (Mo.1958). It is apparent that the defendants’ refused Instruction A, supra, correctly stated the law for this type of surface water case and would have been an appropriate affirmative converse under MAI 33.05, even if plaintiffs had proceeded on Instruction No. 6. Smile v. Lawson, 506 S.W.2d 400 (Mo.1974); E.L. Thomas, Converse Instructions Under MAI, 42 Mo.L.Rev. 175, 191 (1977).

Because of the error in plaintiffs’ verdict director, a true converse would not present the defendants’ theory of the case. The defendants could only present one converse instruction and by offering Instruction A, attempted to present their theory of the case. The instruction actually given was an attempt to force the affirmative converse of the defendant into conformity with the plaintiffs’ erroneous verdict director. This resulted from an erroneous view of Looney, which plaintiffs continue to assert on appeal, that all surface water claims may be presented under the instruction approved in Looney.

The error thus caused should not result in a reversal when the defendants offered a proper instruction, which was refused. Whatever impelled the error, it would not have occurred if defendants’ Instruction A had been given. The trial court denied a new trial, finding there was no prejudicial error; and the trial court judgment should be and is affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Ronnie TUCKER, Appellant.
    No. WD 36268.
    Missouri Court of Appeals, Western District.
    March 19, 1985.
    David M. Strauss, Public Defender, Columbia, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and NU-GENT and BERREY, JJ.
   ORDER

PER CURIAM.

This is an appeal involving assessment of special prosecutor’s fee for the trial of defendant. Appeal dismissed. Rule 30.25(b).


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. W.T. McLAURIN, Defendant-Appellant.
    No. 48799.
    Missouri Court of Appeals, Eastern District, Division Three.
    March 19, 1985.

      Debra Buie Arnold, St. Louis, for defendant-appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

A jury found defendant W.T. McLaurin guilty of first degree burglary. The trial court sentenced him as a persistent offender to 30 years in prison. We affirm.

The only issue is whether the court abused its discretion in limiting defendant’s cross-examination of police officer Ray. Defense counsel had sought to show an officer had kicked defendant after he had been arrested.

Evidence on the issue: First to arrive at the burglary scene was police officer Allen who later arrested defendant when he came out the back door. Just before this, officer Ray had been guarding the front door when defendant had tried to escape there but gave up when he saw officer Ray there. At trial defense counsel sought to cross-examine officer Ray, who had testified he had not seen defendant since the arrest at the burglary scene. This was about the alleged post-arrest kicking of defendant and defense counsel made this proffer:

“I’m not certain if this is, in fact, the police officer [of] which my client informs me. I think it is, but I’m not certain. I feel it would be my duty to ask the question if allowed to do so because I think it would have some bearing on his credibility. If he should, in fact, deny it, then I would allowed to call — impeach the witness.”

The trial court sustained the prosecutor’s objection, ruling: “I am still concerned about the materiality of that evidence. I don’t see how it proves or disproves any element of the case.” With that we agree.

As ruled in State v. Daniels, 649 S.W.2d 568 [3-4] (Mo.App.1983):

“The extent of cross-examination on collateral matters for the purpose of impeachment is largely within the trial court’s discretion.... Absent a clear showing of any abuse of discretion by the trial court in restricting cross-examination, its ruling will not be disturbed.”

See also State v. Couvion, 655 S.W.2d 80 [6-8] (Mo.App.1983).

Defense counsel had admitted she was unsure if this officer was the one who allegedly struck defendant. This alleged incident was irrelevant. As ruled in State v. Hines, 583 S.W.2d 204[1] (Mo.App.1979): “[F]ishing expeditions by counsel in collateral matters must have an end, and it must be left up to the trial court when a particular line of inquiry may or may not be pursued further.”

These cases control our decision here.

CRIST, P.J., and CRANDALL, J., concur.


author: MAUS, Judge.

text:
    Herbert CHASTAIN a/k/a Rodnie Stewart, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13790.
    Missouri Court of Appeals, Southern District, Division Two.
    March 21, 1985.
    Larry Maples, Asst. Public Defender, Joplin, for movant-appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
   MAUS, Judge.

Movant was jury convicted of burglary in the second degree. He was sentenced to imprisonment for seven years. He filed a Notice of Appeal to this court. Six months later the appeal was dismissed because nothing had been done to preserve or perfect the appeal. In this proceeding he seeks relief by his amended motion under Rule 27.26.

That claim for relief is based upon allegations of ineffective assistance of appointed counsel contrary to the Sixth Amendment. The ineffective assistance pleaded included his counsel’s failure to perfect and present the appeal that had been requested by the movant. Following a hearing, upon notice to and argument of counsel, the trial court denied the amended motion without an evidentiary hearing. In so doing, the motion court entered extensive findings of fact and conclusions of law as a basis for denial of the motion.

Movant’s first claim of error is that the motion court did not notify him his amended motion did not state a factual basis for relief and afford him an opportunity to further amend the motion. To support that proposition, he cites Lang v. State, 596 S.W.2d 739 (Mo.App.1980). That case incorporates language from Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977). Neither of these cases supports his position. In this case “[t]he trial court did precisely what was required by Wheatley in that, after appointing counsel for mov-ant and before dismissing the 27.26 motion by sustaining the state’s motion to dismiss, the trial court afforded movant’s counsel the opportunity to be heard on the matter by giving notice and setting the same for a hearing.” Seales v. State, 580 S.W.2d 733, 734 (Mo. banc 1979). “There is nothing in Rule 27.26 requiring the trial court to advise in advance of its intended ruling on the motion or to permit ad infinitum amendments to a motion it finds lacking in entitlement for relief.” Ross v. State, 601 S.W.2d 672, 677 (Mo.App.1980). The appropriate procedure for determining the sufficiency of a motion under Rule 27.26 is succinctly and decisively reviewed in Riley v. State, 680 S.W.2d 956 (Mo.App.1984) and Ray v. State, 644 S.W.2d 663 (Mo.App.1982). The point is denied.

Movant’s second point is that his allegation his appointed counsel failed to perfect and present his requested appeal stated a basis for relief. Contrary to the state’s contention, the issue of whether or not movant’s counsel abandoned him on appeal was cognizable in the trial court. Moms v. State, 603 S.W.2d 938 (Mo. banc 1980). It is before this court on appeal.

In passing upon this allegation, the trial court considered the record of a guilty plea in a contemporaneous, but separate, case against the defendant in the same court. In the plea proceedings, the prosecuting attorney corrected and refuted defense counsel’s statement that a plea bargain included the dismissal of the appeal from the burglary conviction. In summarizing the circumstances of the plea, the plea court said: “You still have the right to proceed with your appeal. You apparently are going to dismiss it, and you can do it if you want but that is not a part of the bargain with the State. Do you think your client understands this. THE DEFENDANT: Yes, I understand this.” The motion court found this record established the movant dismissed the appeal and no hearing was required upon the allegation.

Rule 27.26(e) provides: “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, a prompt hearing thereon shall be held.” (Emphasis added). Movant contends the motion court’s consideration of the record in another case is contrary to this rule. It is not necessary to decide that issue. The record in question may be interpreted to mean that the movant understood he could, if he wanted to, but was not bound to dismiss his appeal. His allegation that he requested the appeal is not conclusively refuted by this record.

To support this basic allegation, the motion also recited that the movant was denied appellate review in five general areas. The motion contained no factual allegation even tending to establish the merits of any possible point on appeal. In fact, there was an absence of any allegation the dismissed appeal was arguably meritorious.

Upon this basis, it could be argued the motion is insufficient because it does not allege a factual basis to show counsel’s deficiency prejudiced the movant as required by the two-component test for ineffective assistance enunciated by such cases as Strickland v. Washington, — U.S.—, 104 S.Ct. 2052, 80 L.Ed.2d 674 (.1984) and Burton v. State, 641 S.W.2d 95 (Mo. banc 1982). This is a forceful argument founded in logic. It is consistent with the many decisions that hold appellate counsel is not ineffective because of failure to ad-vanee and brief points devoid of merit. Harshaw v. United, States, 542 F.2d 455 (8th Cir.1976); Cole v. State, 553 S.W.2d 877 (Mo.App.1977); Boyer v. State, 527 S.W.2d 432 (Mo.App.1975).

However, a distinction has been recognized between ineffective assistance of counsel established by the inadequate presentation of an appeal and established by failure to take or perfect an appeal. The distinction is clearly analyzed and discussed in Galloway v. Stephenson, 510 F.Supp. 840 (D.C.N.C.1981).

The Supreme Court of the United States has held a refusal of appointed counsel to appeal, and the refusal of the court to appoint other counsel to perfect an appeal of right under state law to be a denial of Due Process. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). A denial of counsel for an indigent defendant for the perfection of an appeal of right under federal law has also been condemned as discriminatory. Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). In a recent case before that court, neither party challenged a district court’s determination that counsel’s failure to comply with a simple rule of appellate procedure resulting in dismissal constituted ineffective assistance. Under these circumstances, the court held the dismissal of the appeal of right under state law was a denial of Due Process. Evitts v. Lucey, — U.S. -, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In so holding, the court commented, “We therefore need not decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Cf. Strickland v. Washington, 466 U.S. -, [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984); United States v. Cronic, 466 U.S.-[104 S.Ct. 2039, 80 L.Ed.2d at 657] (1984).” Evitts v. Lucey, supra, 105 S.Ct. at p. 833. No decision of the United States Supreme Court has been found holding the failure to take or perfect an appeal of right is per se ineffective assistance of counsel prohibited by the Sixth Amendment. However, in Ev-itts, in a footnote, the court observed:

In a situation like that here, counsel’s failure was particularly egregious in that it essentially waived respondent’s opportunity to make a case on the merits; in this sense, it is difficult to distinguish respondent’s situation from that of someone who had no counsel at all. Cf. Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967); Entsminger v. Iowa, 386 U.S. 748 [87 S.Ct. 1402,18 L.Ed.2d 501] (1967).

Evitts v. Lucey, supra, 105 S.Ct. at p. 835.

It has been so held in several decisions in the United States Courts of Appeal. “[I]t is not appropriate for the district court to consider the merits of the petitioner’s appeal under the circumstances of this case. In situations where ineffective assistance of counsel deprives a defendant of his right to appeal, courts have not required a showing of prejudice or of likely success on appeal.” Robinson v. Wyrick, 635 F.2d 757, 758 (8th Cir.1981). Followed in Hollis v. United States, 687 F.2d 257 (8th Cir. 1982), cert. denied, — U.S.—, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). Also see Lumpkin v. Smith, 439 F.2d 1084 (5th Cir.1971).

At one time, a contrary result was reached in this state in State v. Maness, 408 S.W.2d 15 (Mo.1966). However, “[t]he requirement of Maness that a defendant denied counsel to assist in the filing of an appeal must demonstrate that there was error on the trial was held inconsistent with the federally protected right of an indigent defendant to counsel at all critical stages of a criminal proceeding in Maness v. Swenson, 8th Cir., 385 F.2d 943.” Ball v. State, 479 S.W.2d 486, 488 (Mo.1972).

Further, after State v. Maness, supra, the Supreme Court of this state announced a different rule: “Furthermore, in this jurisdiction, if the defendant desires to appeal his conviction and his court-appointed counsel, without explanation, fails to take the proper and necessary steps to perfect the appeal ‘such extraordinary inattention to client’s interests (as to) amounts to ineffective assistance of counsel cognizable on motion to vacate.’ ” Green v. State, 451 S.W.2d 82, 85 (Mo.1970). For similar cases dealing with retained counsel see Johnson v. State, 458 S.W.2d 713 (Mo. 1970); State v. Jones, 446 S.W.2d 796 (Mo. 1969). This rule was recently applied in Morris v. State, supra.

The rule, however, should not be construed to require counsel to pursue every possible course of action or press every point on appeal even though the same is demanded by a defendant. Suggested guidelines and procedure for counsel are found in Anders v. California, supra; Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Also see Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585,15 A.L.R. 4th 566 (1981); Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); ABA Standards for Criminal Justice, 2d Ed., Standard 21-3.2.

It is not every failure by counsel to appeal or perfect an appeal that establishes ineffective assistance. Brown v. State, 512 S.W.2d 404 (Mo.App.1974); Burns v. State, 601 S.W.2d 633 (Mo.App.1980). In speaking of the dismissal of an appeal, “[i]t is only where the defendant in a criminal case wishes to appeal and his attorney either refuses or negligently fails to pursue the appeal that the question of ineffective assistance of counsel arises.” Stevens v. State, 560 S.W.2d 599, 600 (Mo.App.1978).

Whether or not movant effectively determined to dismiss his appeal is a question of fact. Goff v. State, 612 S.W.2d 900 (Mo.App.1981). The judgment is reversed and the cause is remanded for an evidentia-ry hearing upon that issue of fact. If that issue is determined in favor of the movant, the motion court should vacate the sentence and resentence the defendant. The time for appeal will then run from the date of the resentencing. Hollis v. United States, supra, and Green v. State, supra. If that issue is determined adversely to the movant, the motion court may enter a judgment denying the motion.

PREWITT, C.J., HOGAN, P.J., and CROW, J., concur.


author: PREWITT, Chief Judge.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Respondent, v. Bob BATTEN, Defendant-Appellant.
    No. 13715.
    Missouri Court of Appeals, Southern District, Division Three.
    March 22, 1985.

      Dale E. Nunnery, Hyde, Purcell, Wilhoit, Spain, Edmundson & Merrell, Poplar Bluff, for plaintiff-respondent.
    Mark A. Kennedy, Mark A. Kennedy & Associates, Poplar Bluff, for defendant-appellant.
   PREWITT, Chief Judge.

Plaintiff’s petition sought damages in two counts, alleging that on the same day defendant negligently severed plaintiff’s underground cable twice, twenty-one feet apart. Following nonjury trial, the trial court entered judgment in plaintiff’s favor for the amounts sought, $137.80 on Count I, and $421.05 on Count II. No findings of fact were requested or made. Defendant appeals.

Defendant’s first three points are directed at the portion of the judgment entered on Count I. These points with citations omitted are set out below.* Each of these points is premised on defendant’s contention that he gave notice to plaintiff that he was going to begin an excavation as provided in § 319.025, RSMo 1978. That section is a part of the “Underground Facility Safety and Damage Prevention Act”. §§ 319.010 — 319.050, RSMo 1978.

Whether defendant gave the notice was a matter in dispute. Plaintiff presented evidence indicating that he had not done so. The trial court could have found that notification was not given, and we must presume that it so found. In our review we are to consider the fact issues on which no findings are made as having been found in accordance with the result reached, Rule 73.01(a)(2), and to give due regard to the opportunity of the trial judge to determine the credibility of witnesses. Rule 73.-01(c)(2); Dambach v. James, 587 S.W.2d 640, 643 (Mo.App.1979); Rollins v. Schwyhart, 587 S.W.2d 364, 367-368 (Mo.App. 1979). Considering that the notice required by § 319.025 was not given, these three points must be denied.

Defendant has two points directed at the court’s findings on Count II. His first point contends that the trial court erred in finding that he was negligent. This contention is answered by § 319.040, RSMo 1978, if we consider, as we must, that he did not give the notice required by § 319.025. Section 319.040 states: “If any underground facility is damaged by any person by reason of his failure to comply with the provisions of sections 319.010 through 319.050, the same shall be a rebut-table presumption of negligence on his part.”

This section provides a rebuttable presumption of negligence on defendant’s part which the trial court may have felt had not been overcome by his evidence. This point is denied.

Defendant’s remaining point contends that the trial court erred in its finding on Count II because the judgment failed to reflect the negligence of plaintiff in two particulars. Whether a party is guilty of negligence is ordinarily for the trier of fact. Jenkins v. Jordan, 593 S.W.2d 236, 239 (Mo.App.1979). Whether plaintiff was negligent was for the trial judge to determine. His finding that plaintiff was not negligent was supported by the evidence.

The judgment is affirmed.

HOGAN and TITUS, JJ., concur.

CROW, P.J., and FLANIGAN and MAUS, JJ., recused.


author: COOPER, Chief Justice.

text:
    Billy Todd ALLEN, Appellee, v. CONSOLIDATED ALUMINUM CORPORATION, Appellant.
    Supreme Court of Tennessee, at Jackson.
    March 25, 1985.

      Wildman, Harrold, Allen, Dixson & McDonnell, Glen G. Reid, Thomas J. Walsh, Jr., Memphis, for appellant.
    Hill, Boren & Associates, P.C., Gayden Drew IV, Jackson, for appellee.
   OPINION

COOPER, Chief Justice.

This is an appeal by an employer from an award of worker’s compensation benefits predicated on a finding by the trial judge that the employee is totally and permanently disabled from an occupational disease. Appellant insists there is no evidence to support the trial judge’s finding that notice of the occupational disease was given “within the proper time,” or his finding that appellee “sustained, a permanently disabling disease [chronic obstructive pulmonary disease] as the result of exposure to pulmonary irritants in the course and scope of his employment with [appellant].” Appellant also insists the trial judge erred in failing to set-off against appellee’s recovery “payments of disability benefits and medical expenses” by the employer under a disability plan fully funded by the employer and which expressly provides for such set-off.

Appellee was employed by appellant in 1957. Prior to beginning work, appellee was given a physical examination by a company designated physician and was found to be in good health. Appellee was assigned to and did work in various areas of the plant until 1980. At trial, appellee presented evidence that certain chemical substances were present in appellant’s plant in varying amounts over the years. There was evidence that the environment was smoky, dusty, and contained abrasive particles, solvent vapors, and an oil mist. When tested, however, levels of contamination of air in the plant did not exceed limits prescribed by the Tennessee Occupational Safety and Health Act (TOSHA). However, a former operator of one of the major furnaces in the plant testified that the air in the plant was cleaner on the days a representative from TOSHA was expected as he and others in his work area were instructed by appellant to burn only hard, clean scrap on those days.

Appellee first began experiencing a problem with his breathing in the mid-1970s. His condition was first diagnosed as bronchitis. However, medical records from the office of Dr. William C. Story, who regularly examined and treated employees of appellant, indicate that he diagnosed appel-lee’s condition as chronic obstructive pulmonary disease in early 1976. Appellee testified that Dr. Story did not tell him that he had chronic obstructive pulmonary disease but told him he had bronchitis and that it “could go into lung problems.” Ap-pellee was advised to and did stop smoking in 1978. As the result his breathing improved, indicating that his lung condition was not irreversible at that time.

In 1980-81, appellee was hospitalized several times for treatment for shortness of breath and congestion in the lungs. He was released to return to work in May, 1981. Before letting appellee return, however, appellant required that appellee be examined by Dr. Story.

On May 26, 1981, Dr. Story advised appellant, with a copy of the letter being sent appellee, that appellee suffered from severe chronic obstructive disease and “should be employed only in'a work environment where he will not be exposed to significant concentrations of dust, toxic fumes, heavy cigarette smoke, or other pulmonary irritants, such as chlorine, etc.” There being no work station in appellant’s plant where one or more of the irritants was not present, appellant refused to permit appellee to return to work.

Appellant filed a worker’s compensation action on March 8, 1982, seeking to recover benefits for the disability resulting from the “chronic obstructive pulmonary disease,” an irreversible lung disease. The appellant defended primarily on the grounds of lack of notice and medical causation. Both issues were found by the trial judge in favor of the appellee.

On the issue of notice, the trial judge found that the appellee “did not receive notice of his lung disorder until 1981, and notice and suit were filed within the proper time.” The only significant event in 1981 was the May 26th letter to appellant from Dr. Story. The trial judge must have concluded that the letter was the first notification to the appellee of the diagnosis of his disease and that his lung condition was adversely affected by breáthing irritants present in his work area; and, that the letter, coming from a company designated physician, satisfied appellee’s duty to give notice to appellant of a possible claim under the Worker’s Compensation Act.

The trial judge’s finding that appel-lee was first informed in 1981 that he had chronic obstructive pulmonary disease is in accord with appellee’s testimony. Dr. Story did not testify. As to whether the letter from Dr. Story was sufficient to constitute notice to the defendant, we note that the letter is similar in import to the physician’s letter in Stratton-Warren v. Parker, 557 S.W.2d 494 (Tenn.1977), which was held to be sufficient notice to the employer of a possible worker’s compensation claim. Both letters state the employee’s diagnosis, and indicate that the employee should avoid the work environment. Appellant acted on the information in the letter and terminated appellee’s employment since one or more of the contaminants adversely affecting appel-lee’s health was present in the air at every work station in appellant’s plant.

On the issue of medical causation, Dr. William D. Crook testified that appel-lee’s exposure to pulmonary irritants during the 23 years he worked in appellant’s plant was a significant factor in the causation of appellee’s chronic obstructive pulmonary disease. He also testified that ap-pellee was totally and permanently disabled by the disease. This testimony is sufficient to support the trial judge’s finding on the issue of causation unless, as insisted by appellant, Dr. Crook’s testimony was incompetent and had no probative value. Appellant argues that the foundation of Dr. Crook’s testimony was inaccurate in that it was based in part on a summarization prepared by appellee’s attorney of the TOSHA reports and reports from a certified industrial hygienist, who conducted surveys at the plant. We find the summarization to be reasonably accurate, although it apparently misled Dr. Crook into thinking that several chemicals were present in appel-lee’s work environment in amounts in excess of TOSHA limits when, in fact, the reports did not so indicate. However, when this fact was called to Dr. Crook’s attention, he indicated that his medical opinion was not based on the concentration of pulmonary irritants in appellee’s work environment, but on the presence of the pulmonary irritants, whatever the concentration. Dr. Crook expressed the opinion that appellee was hypersensitive to the irritants and that a Jow exposure could make him ill. With this explanation, we agree with the trial judge that Dr. Crook’s testimony was competent and had probative value.

Appellant provides two disability plans for its employees, a short-term plan (accident and sickness) and a long-term disability plan. Both plans are funded one hundred percent by appellant. In addition to the funding of payments under the plan, appellant pays a fee to Provident Insurance Company solely to administer the plans. The terms of both disability plans expressly provide that benefits paid thereunder are to be offset against any worker’s compensation payments due appellant for the same disability and for the same period of time.

Appellee received payments, one hundred percent funded by the company, for disability resulting from appellee’s lung condition, the basis of the worker’s compensation award in this case. For the first fifty-two weeks of his disability, appellee was paid $195.00 per week under the short-term plan. Thereafter, until it was determined that appellee’s disability was compensable, appellee received $750.00 per month, less his Social Security benefits, under the long term disability plan. The net payment by appellant was $166.70 per month. Appel-lee’s medical bills also were paid under the company disability plans.

The trial judge, without comment, entered a judgment awarding appellee worker’s compensation benefits, without set-off, and ordered appellant to pay appel-lee “past medical bills in the aggregate amount of $13,137.88.” These medical bills had been paid under the company disability plans. In our opinion, the appellant was entitled to a set-off equal to the disability payments it made under the company disability plans and also credit for the medical expenses paid under the plans. The contract under which appellee was paid disability payments so provided. See Brown v. Western Electric Co., 646 S.W.2d 912 (1983); American Bridge Div., U.S. Steel Corp. v. McClung, 206 Tenn. 317, 333 S.W.2d 557 (1960). An employee cannot be allowed to claim benefits paid by his employer under a contract providing for health care and at the same time be allowed to disavow key provisions of the contract. If the employee were permitted to do so, the logical result would be for the employer to delay any and all disability payments until it could be judicially determined whether its liability to the employee was under the disability plan contract or under the Worker’s Compensation Act. There would be no other way for the employer to avoid the possibility of having to pay twice for the same disability. This procedure would result in a hardship to the employee, and thus defeat the purpose of both the Worker’s Compensation Act and the disability plan, as it would inevitably delay payments and thus deprive the employee of sustenance at the time of his greatest need.

The judgment of the trial court that ap-pellee is totally and permanently disabled as the result of an occupational disease and is entitled to recover worker’s compensation benefits is affirmed. The denial to the appellant of its contractual right of set-off of disability payments made and credit for medical expenses paid is reversed. The cause is remanded to the trial court for a determination of the set-off and for allowance of credit for medical expenses paid in behalf of appellee under the disability plan contract. Costs incident to the appeal will be paid one-half by appellant and one-half by appellee.

FONES, BROCK, HARBISON and DRO-WOTA, JJ., concur.


author: TODD, Presiding Judge, Middle Section.

text:
    W. & O. CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. IVS CORPORATION, Defendant, Commercial Technology, Inc., Intervenor-Appellee.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Sept. 28, 1984.
    Rehearing Denied Nov. 2, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 25, 1985.

      W. Keith Keisling, Livingston, for plaintiff-appellant.
    Bobby James Ellis, Gainesboro, for inter-venor-appellee.
   ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

(The original opinion has been abridged for publication.)

Plaintiff, W. & O. Construction Company, Inc., sued defendant IVS Corporation, a foreign corporation, seeking to enforce an unsecured debt by non resident attachment of real estate of defendant within this State. Commercial Technology, Inc., intervened, asserting that it had bought the property from IVS before this suit was filed. The Chancellor upheld the claim of the intervenor, and dissolved the attachment. Plaintiff appealed.

Five issues are presented on appeal, all of which relate to the central issue which is:

If a bona fide purchaser for value acquires real property by deed executed prior to the filing of a suit to attach said property but said deed is not recorded until after the filing of said suit and the recording of a notice of lis pendens, but said deed is recorded prior to the levy of attachment upon the property, which has prior rights in the property, the plaintiff in the attachment suit or the grantee named in the deed?

The appellee-intervenor insists that, at the time the notice of lis pendens was filed on February 10, 1983, appellee had already purchased the property in good faith and that its rights as purchaser were not destroyed by the recording of the lis pendens notice prior to the recording of appellee’s deed. Appellee relies upon Sharp v. Hunter, 47 Tenn. (7 Cold.) 389 (1870).

The cited case was a suit filed in Chancery Court on March 17, 1866, to collect a $779.00 debt from a non resident who had died leaving property in this State. An attachment was prayed for but not issued. Prior to his death and prior to the suit, on December 31, 1861, the deceased had sold the property to one Lowry, but the deed was not filed for registration until March 14, 1866. The proof of execution was found to be faulty, the fault was remedied and the deed was re-registered on May 2, 1866, after the filing of the attachment suit but before the levy of the attachment. The Supreme Court held the rights of the purchaser to be superior to the rights of the creditor and said:

This attachment proceeding is brought under section 3455, sub-section 7, of the Code, which provides that “Any person having a debt or demand due at the commencement of an action, ⅜ * * may sue out an attachment at law or in equity against the property of a debtor or defendant. * * * Where any person liable for any debt or demand residing out of the State, dies, leaving property in the State.”
The complainant claims that the deed made by Hunter to Lowry in 1861, not having been legally registered when the bill was filed, on the 17th of March, 1866, a lien was fixed upon the land at that time by the filing of the bill; that the deed was void as against the lien of the bill; and that no writ of attachment was necessary in order to render the attachment effectual.
By section 3507 it is declared that “any sale, transfer, or assignment, made after the filing of an attachment bill [394] in Chancery, or after the suing out of an attachment at law, of property mentioned in the bill or attachment, as against the plaintiff, shall be inoperative and void.”
The property sought to be attached is described in the bill in this cause; and there is no doubt that in such cases, if the writ is issued and levied with due diligence, any transfer made after the filing of the bill, and previous to the issuance or actual levy of the attachment, would be void: 3 Head, 392; 2 Cold., 498; 6 Cold., 348. But in this case the writ of attachment was not actually issued and levied until a year after the filing of the bill.
In the case of bills filed by judgment creditors to subject equitable assets, under sections 4283-6 of the Code, the statute expressly gives a lien from the filing of the bill; and it is to be presumed that the Legislature would have made similar provision in the present class of cases, if it had intended that the lien should exist. (Emphasis supplied.) 47 Tenn. at 393, 396.

The concluding expression of the foregoing quotation distinguishes Sharp v. Hunter from the present case. That is, at the time of Sharp v. Hunter, the Legislature had not “made similar provision in the present class of cases”; but, at the present time, the Legislature has “made similar provision in the present class of cases” evidencing its intent that the lien should exist where notice of lis pendens has been duly registered.

T.C.A. § 29-6-101 (formerly 1858 Code § 3455) provides for attachment of property of foreign corporations.

§ 29-6-111 (1858 Code § 3461) allows attachment suits in Chancery without first obtaining a judgment at law.

§ 29-6-135 is derived from 1858 Code § 3507, but the contents of § 3507 were changed in 1932. The wording of the 1838 statute was:

3507 — Transfer after attachment. — Any transfer, sale, or assignment, made after the filing of an attachment bill in chancery, or after the suing out of an attachment at law, of property mentioned in the attachment, as against the plaintiff, shall be inoperative and voidable.

In 1932, the words, “as elsewhere provided”, were added to the 1838 section in forming § 9458 of the 1932 Code which is worded the same in the present T.C.A. § 29-6-135.

Also, in the 1932 Code, there appeared for the first time, § 8053, which is the present T.C.A. § 20-3-101, as follows: Filing of abstract — Effect of not filing.—

(a) When any person, in any court of record, by declaration, petition, bill or cross bill, shall seek to fix a lien lis pendens on real estate, or any interest therein, situated in the county of suit, in furtherance of the setting aside of a fraudulent conveyance, of subjection of property under return of nulla bona, tracing a trust fund, enforcing an equitable vendor’s lien, or otherwise, he shall file for record in the register’s office of the county an abstract, certified by the clerk, containing the names of the parties to such suit, a description of the real estate affected, its ownership, and a brief statement of the nature and amount of the lien sought to be fixed.
(b) Until same is so filed, so far as concerns the rights of bona fide purchasers and encumbrancers, for value, of the realty, or any interest therein, they shall not be affected. [Code 1932, § 8053; T.C.A. (orig. ed.), § 20-301.] (Emphasis supplied.)

T.C.A. §§ 66-26-101 and 103 are with immaterial changes the same as 1858 Code §§ 2072 and 2075. § 66-24-101 provides a list of 21 types of instruments which may be recorded. Deeds are listed but notices of lis pendens are not so listed. § 66-26-103 provides:

Unregistered instruments void as to creditors and bona fide purchasers. — Any of said instruments not so proved, or acknowledged and registered, or noted for registration, shall be null and void as to existing or subsequent creditors of, or bona fide purchasers from, the makers without notice. [Code 1858, § 2075 (der-iv. Acts 1831, ch. 90, § 12; 1841-1842, ch. 12, § 2); Shan., § 3752; mod. Code 1932, § 7668; C.Supp.1950, § 7668; T.C.A. (orig. ed.), § 64-2603.]

Since the decision in Sharp v. Hunter, the Legislature has supplied what was noted as missing in Sharp v. Hunter, that is, statutory authority for registering an effective notice of lis pendens, and has related such registration to the rights of attaching creditors by adding the words “as elsewhere provided” to the former statute on transfer after attachment suit.

That is to say, TCA §§ 29-6-135 and 20-3-101 provide that transfers made after the filing of an attachment suit are void as to the claim of a creditor who has recorded notice of lis pendens before the transfer is recorded.

This change in the law gives full effect to the wording of TCA § 66-26-103, supra that unregistered deeds are void as to creditors (i.e. creditors who have recorded notice of lis pendens).

In Moore v. Walker, 178 Tenn. 218, 156 S.W.2d 439 (1941), A.E. Moore deeded real estate to Keel Moore on January 31, 1935, but the deed was not recorded until February 7, 1935. Meanwhile, on February 5, 1935 (before the deed was recorded) John T. Walker filed an attachment suit against A.E. Moore, describing the same property mentioned in the deed. The summons in Walker’s suit was not served upon A.E. Moore until February 9, 1935. Keel Moore sued to assert his rights as purchaser against the purchaser at the attachment sale. It was stipulated that the deed to Keel Moore was bona fide and for a valuable consideration. The Supreme Court affirmed a decree dismissing the suit of Keel Moore and, said:

... [U]ntil the deed witnessing this transaction had been recorded, A.E. Moore remained the owner of the land so far as Walker, his creditor, was concerned. The unrecorded deed was void and nonexistent as to Walker. Code, section 7668.
Section 9458 of the Code is in these words: “Any transfer, sale, or assignment, made after the filing of an attachment bill in chancery, or after the suing out of an attachment at law, of property mentioned in the bill or attachment, as against the plaintiff, shall be inoperative and voidable, as elsewhere provided.”
(5) Construing section 9458 above quoted, this court has held in two well-considered cases that the lien of the attachment on property mentioned or described in an attachment bill takes precedence over a deed to that property made before, but not registered until after, the levy of the attachment. Hervey v. Champion, 30 Tenn. (11 Humph.), 569; Sharp v. Hunter, 47 Tenn. (7 Cold.), 389. 178 Tenn. at 221, 222, 156 S.W.2d 439.

The law, both statutory and deci-sional, leaves room for argument; but this Court is satisfied that, under the statutes presently in effect, an attaching creditor who records a notice of lis pendens has priority over a bona fide conveyee whose deed is not recorded until after the registration of the lis pendens notice.

This disposes of the issue which has been presented by the briefs, but the judgment of the Chancellor, contains another matter which requires clarification, that is, the statement that:

... Commercial Technology, Inc., paid off a mortgage on the subject property ... and ... the mortgage payment equals the value of the property.

The doctrine of “equitable lien” follows closely the doctrine of “subrogation”. They both come under the maxim, “equality in equity”, and are applied in cases where the law fails to give relief and justice would suffer without them. Shipley v. Metropolitan Life Insurance Co. 25 Tenn. App. 452, 158 S.W.2d 739.

In Clark v. Cantwell, 40 Tenn. (3 Head) 202 (1859), the land of a decedent was sold under a trust deed and the widow redeemed it with her own money. It was held that the widow had an equitable lien upon the land for reimbursement and that, upon non payment by the heirs, the widow might subject their interest in the land to the satisfaction of her claim.

It appears that the Chancellor has recognized a valid claim and lien in favor of the intervenor, but this is not conclusive of the issue between the parties. The reasons for this are twofold:

1. The intervenor has rights of recourse, against its vendor, I.V.S. Corporation. The deed from I.V.S. to inter-venor makes no reference to an encumbrance or the payment of it by inter-venor, and it contains the usual warranty and covenant that the property is unencumbered. Therefore, before granting enforcement of such an equitable lien as that claimed by intervenor, a court of equity should and would require that the intervenor exhaust its remedies against I.V.S.
2. The grant of an equitable lien does not ipso facto confer title. A lien is enforced by subjecting the property to satisfaction of the claim secured. This is accomplished in equity by sale of the property, applying the proceeds to satisfaction of the claim and delivering any excess of proceeds over claim to the owner of the next senior claim against the property. In the present case, this would mean selling the property, paying intervenor out of the proceeds and holding any surplus subject to the attachment of plaintiff. The finding of the Chancellor that intervenor’s payment of the mortgage exceeded the value of the property cannot substitute for the conclusive procedure of sale and distribution of proceeds according to priority.

The judgment of the Chancellor vacating and dissolving the attachment is reversed. Costs of this appeal are taxed against the intervenor-appellee. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CANTRELL and KOCH, JJ„ concur.


author: FRANKS, Judge.

text:
    James E. MARTIN, et al., Plaintiffs-Appellants, v. Billy Joe LEWIS, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 18, 1984.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.
    Ward Huddleston, Jr., and Gregory W. Francisco, Kingsport, for plaintiffs-appellants.
    D. Bruce Shine, Kingsport, for defendants-appellees.
   OPINION

FRANKS, Judge.

In this dispute between incorporators or directors of Pinebrook Independent Holiness Church of the Lord Jesus Christ, Incorporated, the chancellor voided an election of members, ordered four directors removed from office when they refused to approve proposed members in a subsequent election ordered by the court, and declared the slate of proposed members as members of the corporate body.

We reverse the trial court’s judgment and dismiss the action on principles of the First Amendment to the Constitution of the United States.

The Pinebrook Holiness Church was organized as an unincorporated association in the early 1960’s and, in 1981, members of the association voted to incorporate the church as a not for profit corporation. The proposed charter was prepared and issued by the Secretary of State of Tennessee on December 9, 1981, and recorded in the Register’s Office of Sullivan County in June, 1982. Apparently, no other organizational steps were taken until four of the incorpo-rators gave notice of a “first meeting of incorporators” to the remaining three in-corporators for a meeting on October 17, 1982, for the sole purpose of electing members of the church. In this connection, the corporate charter provides the corporation would have one class of members and:

Any individual ... may become a member of this nonprofit corporation when they are approved by the Board of Directors of this corporation and provided the applicant meets all other requirements prescribed by the constitution and by-laws of this corporation and each member shall be allowed to vote in the election of directors, officers, or other members or upon other matters of policy or upon matters as provided by law.

Appended to the notice was a list of 28 people proposed for membership in the church. On October 17, four of the incor-porators or directors voted to elect the 28 people to membership in the church and three incorporators voted against. Thereafter, one of the four directors who had voted for the members joined the three directors who had voted against and filed this action seeking an injunction against the remaining directors from “attempting to interfere with the lawful business of said church” and for other relief. The defendants filed a counter-action seeking “in-junctive relief” against plaintiffs from interfering with the operation of the church.

The chancellor conducted an evidentiary hearing and made findings of fact relative to the election held on October 17, 1982. He concluded the incorporators could properly vote on the members; however, he concluded the election was “not conducted according to Pinebrook Church law”, and “it was arbitrary”. On this basis he declared the election “null and void”. The court then ordered another election authorizing the directors to only elect:

[additional members who meet the criteria of the By-Laws existing on October 17, 1982. I find those criteria to be: A. That that person had attended a minimum of six worship services of Pine-brook Church within sixty days of October 17, 1982; B. Had supported the Church through tithing or offerings if they had any income within sixty days of October 17, 1982; and were filled with the Holy Ghost... ,

The election ordered by the chancellor was held on July 1, 1983, at which time four of the incorporators voted against all 15 individuals who had applied for membership. Whereupon, the chancellor held the four directors had “willfully violated the Order of the Court and willfully violated their duties as Trustees and Incorporators” of the church and ordered them removed from their positions. He then declared the 15 applicants that the majority of directors had rejected to be “lawful members of the Church Corporation”.

The, threshold issue on this appeal is whether the facts of this case fall within the doctrine of “marginal civil court review” of ecclesiastical decisions. The scope of such review was delineated in Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 50 S.Ct. 5, 74 L.Ed. 131 (1929), where the court stated:

In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. 280 U.S., at 16, 50 S.Ct. at 7.

The chancellor’s decision, based upon arbitrariness, could fall within the doctrine; however, this doctrine was severely restricted in Serbian Eastern Orthodox Diocese, Etc. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); rehearing denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 (1976). The Supreme Court, after quoting the following from one of its earlier decisions:

All who unite themselves to such a body [church] do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. [Watson v. Jones] 13 Wall. [679], at 728-729, 20 L.Ed. 666. 96 S.Ct., at 2381,

observed that civil courts may not inquire into whether a church has followed its own laws and procedures to establish a basis for arbitrariness. The court concluded:

We have concluded that whether or not there is room for “marginal civil court review” under the narrow rubrics of “fraud” or “collusion” when church tribunals act in bad faith for secular purposes, no “arbitrariness” exception ... is consistent with the constitutional mandate that civil courts are bound to accept the decisions ... on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense “arbitrary” must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. 96 S.Ct., at 2382.

The church’s charter in the instant case provides that authority to approve membership rests with the directors, yet after that body elected members on October 17, the trial court invalidated the election on the grounds the election was arbitrary and did not follow church law and established qualifications for membership by court decree. As the Serbian court notes, “this the First and Fourteenth Amendments forbid”. Accordingly, we reverse so much of the trial court’s judgment that invalidates the election of October 17, 1983, the removal of certain trustees and the designation of corporate members.

The cause is remanded to the trial court for entry of a judgment consistent with this opinion with costs of appeal assessed to appellants.

PARROTT, P.J., and GODDARD, J., concur.

      . The by-laws referred to were adopted before the church was incorporated and provide:
      (6) To be eligible to vote in the church business, one must be a regular attender of this church. And support this church as found in I Corinthians 16:1-2. Verse 2: Upon the first day of the week let every one of you lay by him in store, as God has prospered him, that there be no gatherings when I come. Have participated in the church activities for 60 days or more. And be filled with Holy Ghost or seeking for the Holy Ghost.


author: LEWIS, Judge.

text:
    Sally R. KENNEDY (Morris), Plaintiff-Appellee-Appellant, v. Henry L. PERRY, Defendant-Appellee, and Metropolitan Government of Nashville and Davidson County, Tennessee, Defendant-Appellant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Nov. 21, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 25, 1985.

      David M. Pack, Nashville, for plaintiff-appellee-appellant.
    James L. Charles, Nashville, for defendant-appellant-appellee.
   OPINION

LEWIS, Judge.

Plaintiff brought suit pursuant to the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq., against defendants, Henry L. Perry and the Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), seeking damages for injuries to her person and property as the result of an automobile accident.

At the conclusion of a bench trial, the Trial Court found that plaintiff had sustained damages in the amount of $13,-019.55 but that her negligence contributed forty percent to the accident. Judgment was entered in plaintiff’s favor for $7,811.73 amounting to sixty percent of the damages sustained.

Thereafter, on motion of defendants, the judgment was amended and entered against Metro only because of defendant Perry’s immunity from liability under Tenn.Code Ann. § 29-20-310(b).

The facts out of which this controversy arose are as follows:

At approximately 2:00 A.M. on Friday, February 23, 1980, plaintiff, traveling east in the 2400 block on West End Avenue in Nashville, sought to make a left turn into the Krystal restaurant located on the north side of West End Avenue and collided with a blood-alcohol testing van owned by Metro and driven by defendant Perry in the course and scope of his employment. Perry was traveling west on West End Avenue.

At the point where the accident occurred, West End Avenue is well lighted and consists of seven lanes, three lanes for east bound traffic, three lanes for west bound traffic, and a turn lane in the center.

Plaintiff had taught her classes at the Junior High School in Blytheville, Arkansas, on February 22nd. She left Blythe-ville at approximately 3:30 or 4:00 P.M. and drove to Nashville, arriving at approximately 8:00 or 8:30 P.M. Upon arriving in Nashville, she met with a friend, Mrs. Smith, at a doughnut shop on West End Avenue. Mrs. Smith left her automobile at the doughnut shop, and she and plaintiff proceeded in plaintiffs automobile to the Ruby Tuesday restaurant on West End Avenue, where they had dinner with wine. After dinner, they drove to the Anchor Motel on West End Avenue where plaintiff had reserved a room. On the way to the motel they stopped and bought beer. Plaintiff and Mrs. Smith spent the remainder of the evening in plaintiffs motel room, talking over old times, drinking beer, and talking to a friend on the telephone.

In the early morning hours, plaintiff drove Mrs. Smith back to the doughnut shop so Mrs. Smith could pick up her automobile. Plaintiff then followed Mrs. Smith to her home to learn where Mrs. Smith lived, since plaintiff was to pick up Mrs. Smith on Saturday, the 23rd.

After learning where Mrs. Smith lived, plaintiff headed back east on West End Avenue toward the Anchor motel. She was traveling in the outside, or curb, lane of traffic when she decided to get something to eat. There was a Steak and Egg restaurant located on the south side of West End Avenue, but it appeared to have a capacity crowd. Plaintiff then decided to go to the Krystal restaurant, one and a half blocks east of the Steak and Egg and located on the north side of West End Avenue, where she could drive through and get a hamburger to take back to her motel room.

Plaintiff testified that she proceeded from the curb lane across the other two east bound lanes and drove into the turn lane where she came to a complete stop. She did not see the white police van driven by defendant Perry until he sounded his horn. When plaintiff heard the horn, the van was also in the turn lane headed directly toward her. The head lights on the van were not on, and when she realized the van was coming directly toward her, she turned from the turning lane into the outer west bound lane, i.e., the west bound lane nearest the turn lane. Plaintiff testified that when she turned her automobile from the turn lane into the outer west bound lane, the front of the van driven by defendant Perry collided with the right side of her automobile.

The photographs of plaintiffs automobile show that the van collided broadside with the right side of plaintiffs Pontiac automobile. No part of the front of plaintiffs automobile collided with the van. The accident occurred totally in the outer west bound lane.

Harold Prince, a witness to the accident, testified on behalf of plaintiff that he was in the turn lane behind plaintiff and that he was able to see the van. In answer to questions from the Trial Judge, Mr. Prince stated that the van was in the outer west bound lane of traffic and not in the turn lane when he saw it. He also testified that the van did not have any lights on and seemed to be traveling between forty and fifty miles per hour.

Defendant Perry admitted that he was traveling forty-two miles per hour but also testified that he did not realize he was in a thirty-mile-per-hour zone. He testified that he did have his head lights on.

It is without question that defendant Perry was traveling at an excessive rate of speed and that under the facts the Trial Judge correctly found that he did not have head lights working on the van. We think it is without question that he was guilty of negligence.

Plaintiffs testimony shows that it would have been necessary for her car to have made a square turn from its stopped position in the turn lane in order for it to have been headed in a northerly direction in the outer west bound lane. This Court knows of no vehicle made for travel over the highways capable of making square turns.

The defendant presents three issues which are as follows:

I Whether the preponderance of the evidence supports the Trial Court’s finding that the plaintiff was contributorily negligent?
II Whether the Trial Court, in a non-jury case, may distinguish remote contributory negligence from proximate contributory negligence by selecting the contributory negligence least at fault for the injury to be remote contributory negligence?
III Whether the preponderance of the evidence proves that the plaintiff’s contributory negligence was a proximate cause of her injuries?

We discuss these issues together.

In his oral findings at the conclusion of all the evidence, the Trial Court stated:

This is a case where I could not consider the case without trying to determine whether the negligence of [plaintiff] was remote or proximate and the only way that makes sense to me on that is by percentages.
The Supreme Court has never said that the tryer of fact in a nonjury case can use that and if they ever do say so, I wish they would explain what we can use.
So, based upon the unsatisfactory nature of the evidence in this case, the testimony of two people that are saying the van was not only going at an excessive speed, but without lights or with no lights at all, I will assign 60 percent of the fault to the driver of the van [defendant Perry] and 40 percent to [plaintiff].

The order entered by the Trial Court found that plaintiff “was guilty of remote .contributory negligence.’.’

We are of the opinion that the record fully supports a finding that the plaintiff was guilty of contributory negligence. We are also of the opinion that the Trial Judge’s oral findings that plaintiff’s negligence contributed forty percent to the accident is supported by the record. However, we hold that the conclusion reached by the Trial Judge that plaintiff’s negligence was “remote” was error.

The Trial Judge, in finding that plaintiff was entitled to judgment, compared negligence. This, he cannot do. Remote contributory negligence has to do with causation, not with comparing relative degrees of fault among the parties. Arnold v. Hayslett, 655 S.W.2d 941, 946 (Tenn.1983).

The Court, in Arnold v. Hayslett, had this to say regarding remote contributory negligence.

“We define it as that negligence which is too far removed as to time or place, or causative force, to be a direct or proximate cause of the accident. We suggest that an appropriate charge would state the foregoing definition and add: ‘If you find the plaintiff guilty of such remote contributory negligence, you must reduce the recovery which you would otherwise award, in proportion to plaintiff’s contribution to the injury.’ ”

Id. at 945 (quoting Street v. Calvert, 541 S.W.2d 576, 585 (Tenn.1976)).

Under the law as it is presently constituted in the State of Tennessee, it is not permissible for the trier of fact to compare relative degrees of fault among the parties. In other words, comparative negligence is not the law of Tennessee. If comparative negligence is to be adopted in this state, then it must be adopted by either the Supreme Court of Tennessee or the General Assembly of Tennessee. It cannot be adopted by this Court or by the trial courts of this state, either directly or by subterfuge.

Plaintiff, while denying that she is guilty of any degree of negligence, argues that even if she were contributorily negligent, the defendant was guilty of gross negligence.

Tennessee courts have never allowed contributory negligence as a defense to conduct amounting to gross negligence, or to conduct which is culpable regardless of the care exercised by the defendant. Generally, a plaintiff whose ordinary negligence proximately causes the injury cannot recover from an ordinarily negligent defendant. However, ordinary negligence on the part of the plaintiff is not a defense to the gross negligence of the defendant. In general, recovery is not barred whenever the defendant’s negligence is of a “higher degree” than that of the plaintiff. The impropriety of the defense is even clearer in cases in which the conduct of the defendant is so wilful that it is no longer based upon negligence....

Ellithorpe v. Ford Motor Company, 503 S.W.2d 516, 521-522 (Tenn.1973) (citations omitted).

Here, defendant Perry admitted that he was driving at a speed of forty-two miles per hour. While the Trial Court found that he did not have his head lights on, he testified that he was of the opinion that he did so. It is uncontroverted that in the 2400 block of West End Avenue the area was well lighted with street lights.

Gross negligence is not characterized by inadvertence. It is a negligent act done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.

Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn.App.1972) (citations omitted)

Under the circumstances here, we do not believe the record shows that Perry’s acts were done with “utter unconcern for the safety of others” or done “with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.”

We are of the opinion that the record in this case supports a finding that the accident was caused not only by the negligence of defendant Perry but also by the proximate contributory negligence of plaintiff in her failure to keep a lookout ahead and in making a left turn in front of the van. The evidence is that the area was well lighted, that the van was white, that plaintiff’s witness, who was traveling behind plaintiff, was able to see the van, and that defendant Perry was able to see the plaintiff’s vehicle. The evidence is that if plaintiff had been keeping a proper lookout ahead, she would have seen the van and would not have turned in front of it. Plaintiff was guilty of proximate contributory negligence.

The judgment of the Trial Court is reversed and the cause dismissed. Costs are assessed against plaintiff and the cause remanded to the Trial Court for the collection of costs and any further necessary proceedings.

TODD, P.J., M.S., and CANTRELL, J., concur.


author: TOMLIN, Judge.

text:
    Anthony G. HARRIS, Receiver of Mobile Insurance Company, Plaintiff/Appellee, v. Marvin POOLE, Individually and d/b/a Mobile Housing Insurance Agency, Inc., and alternatively Mobile Housing Insurance Agency, Inc., Defendants/ Appellants.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Dec. 3, 1984.
    Application for Permission to Appeal Denied by Supreme Court April 1, 1985.

      Maurice J. McGehee, Memphis, for plaintiff-appellee.
    Henry V. Sutton and Mark W. Garrett, of Sutton, Wilson & Garrett, Memphis, for defendant-appellant Marvin Poole.
   TOMLIN, Judge.

This appeal arises from a suit by a Texas resident seeking to enforce in Tennessee a Texas judgment obtained against a non-resident, pursuant to the Texas “long-arm” statute. The action was brought prior to the adoption of the Uniform Enforcement of Foreign Judgments Act. Plaintiff, the receiver of a Texas insurance company, (“Company”) sued defendant, a resident of Shelby County, Tennessee, in Texas. Service of process was had on defendant through the Texas “long-arm” statute. Defendant unsuccessfully challenged the jurisdiction of the Texas court by a special appearance. After obtaining a judgment on the merits, which was not contested in Texas, plaintiff filed suit in Tennessee to enforce it. Following an evidentiary hearing on the question of jurisdiction, the Circuit Court of Shelby County entered judgment against defendant on the Texas judgment. The sole issue presented by this appeal is whether or not the Texas court had obtained personal jurisdiction over defendant so as to require Tennessee to give full faith and credit to the Texas judgment. We affirm the judgment of the trial court.

While we reach the same result as the trial court, we do so for different reasons and by a different method. Inasmuch as we are of the opinion that the trial judge was in error in the procedure that he followed, we feel constrained to address it here. As noted, after having been sued in Texas and served through the Texas “long-arm” statute, defendant made a special appearance in the Texas court to challenge the in personam jurisdiction of that court. After an evidentiary hearing in Texas, the Texas court found that it had personal jurisdiction over the defendant. Defendant chose not to appeal the Texas trial court’s ruling as to jurisdiction and made no further effort to defend the case on the merits. Following the filing of suit by the Texas plaintiff to enforce his Texas judgment in Tennessee, defendant again raised the question whether Texas had in person-am jurisdiction. Our single fault with the action of the trial court lies not with the conclusion that he reached, but with the holding of an evidentiary hearing below on the question of in personam jurisdiction in Texas.

Article IV § 1 of the United States Constitution requires that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The application of this constitutional provision to the interwork-ings of the judicial systems of our fifty states is amply stated in 47 Am.Jur.2d, Judgments, § 1226 (1969):

The effect of the full faith and credit clause of the United States Constitution, and of the Act of Congress implementing it, is to make the local common-law doctrine of res judicata a part of the national jurisprudence and operating throughout the federal system, by requiring that the doctrine of res judicata be applied in one state to a judgment rendered in another state to the same extent as it is applied in the state of its rendition. Hence, the doctrine of res judicata may be applied to a judgment rendered in one state where the action in the second state involves the same subject matter and cause of action, or the same issues determined in the former action. In the former case, the judgment rendered in the one state operates to bar further prosecution of the same cause of action in another state; in the latter case, it operates to bar a second determination of the same issues in another state. In the latter respect, it has been specifically held that the collateral estoppel division of res judicata is included within the full faith and credit mandate.

In the case at bar, the parties concede that defendant made a special appearance in Texas to contest the jurisdiction of the Texas court. A certified copy of the order of the Texas trial court dealing with defendant’s special appearance was entered in the record in this cause. This order reads in part as follows:

[T]he Plaintiff herein having appeared by and through his attorney of record and Defendant Marvin Poole having appeared by and through his attorney of record, the court proceeded to hear such matter and after reviewing the case file, considering the evidence and arguments presented by counsel for Plaintiff and Defendant and after considering the applicable law the court finds ... that the assumption bf jurisdiction by this court over the person of Defendant Marvin Poole does not offend traditional notions of due process and the court is therefore of the opinion that the court has in per-sonam jurisdiction over said Defendant Marvin Poole....

The application of the doctrine of res judicata to questions of jurisdiction over

the person was clearly established in Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931). In Baldwin it was held that a federal court in Iowa was required to give binding effect to a judgment of a Missouri federal court, notwithstanding the claim that the original court did not have jurisdiction over the person of the defendant, once it was established in the Iowa court that that question had been fully litigated in Missouri. Said the court:

Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.

Id. at 525-26, 51 S.Ct. at 518.

In Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938), the rationale for this doctrine of jurisdictional finality was stated in this way:

We see no reason why a court in the absence of an allegation of fraud in obtaining the judgment, should examine again the question whether the court making the earlier determination on an actual contest over jurisdiction between the parties, did have jurisdiction of the subject matter of the litigation.
Courts to determine the rights of parties are an integral part of our system of government. It is just as important that there should be a place to end as that there should be a place to begin litigation. After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first.

Id. at 172, 59 S.Ct. at 138.

In Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963), after reviewing the relevant authorities, the court stated the rule as to the applicability of the full faith and credit doctrine as follows:

However, while it is established that a court in one State, when asked to give effect to the judgment of a court in another State, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modern decisions of this Court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges a general rule that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

Id. at 111, 84 S.Ct. at 245.

The rule laid down in Durfee has already been cited with approval by the Eastern Section of this Court in the case of Atchley v. Atchley, 585 S.W.2d 614 (Tenn.Ct.App. 1978), cert. denied (1979). Applying the law to the case sub judice, we are of the opinion that the Texas judgment entered March 21,1979, which found that the Texas courts had in personam jurisdiction over the defendant, is entitled to full faith and credit in Tennessee.

The defendant made a special appearance in the Texas court for the specific purpose of litigating the question of jurisdiction over his person. If he had chosen not to appear at all in Texas, which was his privilege, and the Texas court had rendered a default judgment, defendant could have raised the issue of in personam jurisdiction in our courts as the issue would not have been previously litigated. Having elected to contest the jurisdiction question in Texas, defendant had the right to appeal the adverse ruling to the appellate courts of that state, which he also chose not to do. Under the circumstances, it is too late for the defendant now to seek relief from the courts of this state on the question of jurisdiction. Our hands are tied. The same can be said about this defendant as about a famous son of Tennessee, Davie Crockett — “He shouldn’t have gone to Texas”!

For the reasons stated herein, the judgment of the circuit court is affirmed. Costs in this cause are taxed to the defendant, for which execution may issue, if necessary.

NEARN, P.J. (W.S.), and JOE G. RILEY, Jr., Special Judge, concur.