author: PREWITT, Chief Judge.

text:
    Willard H. DEES, Plaintiff-Respondent, v. HOCKER OIL COMPANY, INC., Defendant-Appellant.
    No. 13616.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 20, 1985.

      Jon S. Hutcheson, Houston, for plaintiff-respondent.
    David L. Steelman, Steelman, Hearne & Hearne, Salem, for defendant-appellant.
   PREWITT, Chief Judge.

Plaintiff sought to recover damages from defendant, contending that defendant had not followed an agreement that it would reimburse plaintiff for a portion of utility charges. Following nonjury trial plaintiff received a judgment in accordance with his request. Defendant appeals.

Relying on State ex rel. M. J. Gorzik Corp. v. Mosman, 315 S.W.2d 209 (Mo. 1958), and Davidson v. Kubalek, 667 S.W.2d 449 (Mo.App.1984), defendant contends that under § 517.710, RSMo 1978, the judgment is void as it was entered by an associate circuit judge more than three days after the case was submitted for final decision. Section 517.710 states:

In cases where a plaintiff shall be non-suited, or withdraw his action, and where judgment shall be by consent or where a verdict shall be rendered, the judge shall forthwith render judgment and enter the same in his record; in all other cases he shall render judgment and enter the same in his record within three days after the cause shall have been submitted to him for his final decision.

Judge Becker is an associate circuit judge, and as the amount does not exceed $5,000.00, he would have jurisdiction to decide this matter under § 478.225.-2(1), RSMo 1978, without assignment. However, here, as provided in § 517.010.2, RSMo 1978, the presiding judge of the circuit specifically directed that the practice and procedure applicable before circuit judges should apply to the hearing on the matter. See also § 478.240.2, RSMo 1978, § 478.250.2, RSMo 1978, § 517.520.2, RSMo 1978 and Rule 41.01. As the judge was not proceeding under chapter 517 at the trial, but under the procedures applicable to circuit judges, he was not required to follow § 517.710. This point is denied.

Defendant has two remaining points, both of which we deny. The record establishes that the judgment is supported by substantial evidence and is not against the weight of the evidence and that no error of law appears. A discussion of those points and any further opinion would have no precedential value.

The judgment is affirmed in compliance with Rule 84.16(b).

HOGAN, P.J., and MAUS and CROW, JJ., concur.


source: Caselaw Access Project

author: MAUS, Judge.

license: Public Domain

text:
    Ralph RITTER and Barbara Ritter, Plaintiffs-Appellants, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Respondent.
    No. 13604.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 21, 1985.
    Gene G. Gulinson, Hart & Himelrick, Phoenix, Ariz., for plaintiffs-appellants.
    Dan L. Birdsong, Thomas, Birdsong, Clayton & Haslag, Rolla, for defendant-respondent.
   MAUS, Judge.

This is an action to recover on a fire insurance contract. On the defendant’s motion, the circuit court ordered the petition dismissed without prejudice for failure to prosecute. Appellants’ motion to reinstate was overruled. Their appeal has been taken from the order dismissing the petition without prejudice.

Appellants’ sole point on appeal is that the trial court erred in granting the motion to dismiss because plaintiffs did not receive adequate notice in compliance with Rule 44.01(d). However, consideration of this point is obviated by the jurisdictional issue.

Before considering the merits of an appeal, this court must determine if it has jurisdiction, whether or not this question is raised by the parties. Steinmetz v. Missouri Hwy. & Transp. Com’n, 645 S.W.2d 36 (Mo.App.1982). In granting leave to file a late Notice of Appeal, this court specifically ordered that the question of whether or not the order dismissing the petition without prejudice was an appealable order would be taken with the case. Nonetheless, the parties did not choose to brief this question.

With exceptions not here applicable, this court has jurisdiction only of appeals from final judgments. § 512.020, RSMo 1978. A final judgment is one which disposes of all parties and all issues and leaves nothing for further determination. Rule 74.01; § 511.020, RSMo 1978; Elliot v. Harris, 423 S.W.2d 831 (Mo. banc 1968); Estate of Livingston, 627 S.W.2d 673 (Mo. App.1982). The jurisdictional question is whether the dismissal of appellants’ petition without prejudice for failure to prosecute is a final judgment as measured by that standard.

A trial court on the motion of a defendant or on its own motion may dismiss an action for failure to prosecute. Rule 67.02. Such is an involuntary dismissal. Rule 67.03 states:

A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred.... [A]ny involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify.

A dismissal with prejudice operates as an adjudication on the merits barring any further assertion of the cause of action by the plaintiff. Id. See also § 510.150, RSMo 1978.

While a dismissal with prejudice is an adjudication on the merits, generally, the converse is also true—a dismissal without prejudice is not an adjudication on the merits. Long v. Long, 141 Mo. 352, 44 S.W. 341 (banc 1897). See Fenton v. Thompson, 352 Mo. 199, 176 S.W.2d 456 (1943). The general rule has been stated: “Dismissals of actions without prejudice ordinarily indicate that such judgments of dismissal affect no right or remedy of the parties and that there has been no decision of the case on the merits.” 27 C.J.S. Dismissal & Nonsuit § 73 (1974).

However, there are exceptions to the general rule that such dismissals are not appealable. A dismissal without prejudice has been held to be appealable, at least to review a limited issue, when it operates as an adjudication on the merits or will be res adjudicata upon the basis for dismissal. In those instances, an appeal is necessary to prevent a loss of rights. Such was the case when a trial court determined it did not have jurisdiction of an action because the maintenance of such action would constitute an impermissible burden on interstate commerce. Healy v. Atchison, Topeka & Santa Fe Railroad Co., 287 S.W.2d 813 (Mo.1956). Also see Douglas v. Thompson, 286 S.W.2d 833 (Mo.1956), involving a dismissal without prejudice for failure to observe a local rule. The same result has been reached where the trial court has designated a dismissal final for purposes of appeal. Hill v. General Motors Corp., 637 S.W.2d 382 (Mo.App.1982). Another example is a dismissal without prejudice for failure to state a claim upon which relief can be granted, when a party elects not to plead further. In such event the dismissal is tantamount to a determination a plaintiff has no cause of action. Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962). If, upon such a dismissal, the pleader is granted a time for amendment and within that time does nothing, “final judgment of dismissal with prejudice shall be entered on motion_” Rule 67.06. See State ex rel. Graves v. House, 649 S.W.2d 498 (Mo.App.1983).

The dismissal of appellants’ petition for failure to prosecute was an involuntary dismissal. Rule 67.02. It is not one of the four specific exceptions to the general rule set forth in Rule 67.03. Had the order of dismissal not declared otherwise, the dismissal would have been with prejudice. Rule 67.03. Such a dismissal would be appealable. Levee District #4 of Dunklin County v. Small, 281 S.W.2d 614 (Mo.App. 1955); Hannibal v. St. Louis Public Service Co., 200 S.W.2d 568 (Mo.App.1947).

However, the order in question specified the dismissal was without prejudice. No basis has been established to cause an exception to the general rule to be applicable. Such a dismissal without prejudice is a non suit within the meaning of § 516.230. Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84 (banc 1930). It is not necessary to decide if the purported time limitations upon suit contained in the policy alter the character of the dismissal. See § 431.030; Karnes v. American Fire Ins. Co. of Philadelphia, 144 Mo. 413, 46 S.W. 166 (banc 1898). Plaintiffs could refile their petition within one year of such dismissal. § 516.-230. The dismissal of appellants’ petition for failure to prosecute is not appealable. The logic of Nicholson v. Nicholson, 685 S.W.2d 588 (Mo.App.1985), a factually similar case, reaches the same result. The appeal is dismissed.

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


author: TITUS, Presiding Judge.

text:
    CITIZENS STATE BANK OF MARSHFIELD, a Missouri corporation, Plaintiff-Respondent, v. FRIENDLY FORD, INC., a Missouri corporation, Defendant-Appellant.
    No. 13487.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 21, 1985.

      Charles B. Cowherd, Taylor, Stafford & Woody, Springfield, for plaintiff-respondent.
    Christopher J. Stark, Springfield, for defendant-appellant.
   TITUS, Presiding Judge.

Plaintiff bank sued defendant motor sales company for conversion of a 1974 Lincoln automobile. Following a trial to the court, a judgment was entered in favor of plaintiff and against defendant in the sum of $2,519.65 and in favor of plaintiff and against defendant on all counts of defendant’s counterclaim. Defendant appealed.

On May 2, 1979, Jim Robinson executed and delivered to plaintiff his $2,760.05 promissory note and a security agreement which provided plaintiff with a security interest in a 1974 Lincoln automobile which Robinson had that date purchased. Plaintiff perfected its security interest in the car by complying with the provisions of § 301.-600. Robinson made only two payments on the note — a $62.60 interest payment made July 30, 1979, and a $300 payment made November 19, 1979.

Robinson on September 1, 1979, talked to defendant’s salesman and used car manager about trading the Lincoln for a more economical vehicle. As a result Robinson made an even trade of the Lincoln (albeit plaintiff bank had the title thereto) for a 1975 Ford Granada between September 1 and 7, 1979. On the latter date defendant’s employee mailed the Granada title to plaintiff bank together with the lienholder’s copy of the title application. An officer of plaintiff bank acknowledged receiving the papers on the Granada sometime after September 10, 1979, unaccompanied by any letter or note explaining why the bank was being sent such documents. Contrary to this, an employee of defendant said the documents were accompanied by a note asking for return of the papers relating to the Lincoln. Of course, resolution by the trial court of conflicting evidence such as this and other testimony in a court-tried case, must be accorded due deference by this tribunal as the court nisi, as trier of the facts, has leave to believe all, part or none of the testimony of any witness. McComas v. Umlauf, 641 S.W.2d 809, 812[4] (Mo.App.1982). Also, we may assume the trial court believed the evidence and testimony which is consistent with its findings and judgment. State ex rel. Hillhouse v. Hunter Raffety Elevator, Inc., 636 S.W.2d 400, 402 (Mo.App.1982).

Shortly after receiving the Granada papers, a bank official contacted Robinson for an explanation of the matter. When advised of the trade, the official told Robinson that before plaintiff bank would go along with the switch Robinson would have to pay the bank $800 on his arrearages. Such payment was never made but as seen, supra, Robinson sent the bank $300 in November 1979. Sometime in late October or early November a bank officer received a call from a Joplin car dealer wanting the title to the Lincoln as he had bought the vehicle from defendant and sold it to a customer. A bank official telephoned defendant regarding the situation and was later advised that Robinson had been contacted and had assured defendant’s employee he would make up the difference which was owed. Plaintiff bank’s officer testified he did not want to exchange the Lincoln for the Granada as he considered the Lincoln to be better collateral and that he had not talked to anyone at defendant’s establishment about an exchange of collateral until after receiving the call from the Joplin car dealer. In April 1980 plaintiff secured possession of the Granada from Robinson and sold it for $900 and credited that amount on the Robinson loan.

Defendant’s used car sales manager was defendant’s sole witness. He recounted his September 1, 1979, meeting with Robinson when an agreement was reached on an even swapping of the Lincoln for the Granada. The witness stated he had Robinson telephone plaintiff bank “about doing the financing on it.” Albeit the manager said the conversation on plaintiff’s part “wasn’t a yes or it wasn’t a no at that time,” the court sustained plaintiff’s hearsay objection to the testimony. The sales manager claimed he had personally talked to the bank employee in question on September 1, 1979, but was unable to recall the substance of the conversation. Defendant’s sales manager said he again talked with bank personnel on September 7, 1979, who said the bank would exchange car titles if Robinson paid what he then owed the bank, which the manager then understood to be “like $300 or $400.” Defendant then sent the Granada papers to the bank. When plaintiff asked for the return of the Lincoln in November l979, it was told by defendant the vehicle had “been wholesaled to another dealer.” The sales manager for defendant acknowledged that when defendant sent the Granada papers to plaintiff bank, it was not known whether the money wanted by the bank from Robinson had, in fact, been paid. Defendant’s manager also admitted he had never inquired if it would be agreeable with plaintiff if defendant sold the Lincoln.

In addition to its answer, defendant filed a four count counterclaim claiming damages for alleged fraud, abuse of process and breach of an averred oral contract on the part of plaintiff. As already noted, the trial court entered judgment against defendant on each of its claims.

Our review in this court-tried case is governed by Rule 73.01 as set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), and we do not disturb the judgment of the court nisi unless it is against the weight of the evidence, is not supported by substantial evidence, or erroneously applies or declares the law. Ere we may conclude a judgment in a court-tried case is against the weight of the evidence we must entertain a firm belief the judgment is wrong. We are bound to give due regard to the opportunity of the trial court, as trier of the facts, to have adjudged the credibility of the witnesses and to accord due deference to that court’s resolution of conflicting evidence. Commerce Bank of Poplar Bluff v. Bulger, 614 S.W.2d 768, 769[1-3] (Mo.App.1981).

We, as the foregoing attests, have reviewed the transcripts, counsels’ briefs, the legal file and all other matters submitted. It is our considered conclusion that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. We also determine that no error of law appears and that an extended opinion would have no prece-dential value. The judgment nisi is affirmed in compliance with Rule 84.16(b).

FLANIGAN and GREENE, JJ., concur.

      . Statutory and rule references are to V.A.M.S. and V.A.M.R.


author: TODD, Presiding Judge,

text:
    Angelia Nicholson DUNCAN, Plaintiff-Appellant, v. Joseph Frank DUNCAN, Defendant-Appellee, and Security Alarms & Services, Inc., Additional Defendant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Oct. 30, 1984.
    Application for Permission to Appeal Denied by Supreme Court Feb. 25, 1985.

      John W. Nolan, III, Philip Duer, William R. Willis, Jr., Nashville, for plaintiff-appellant.
    Charles H. Warfield, James G. Martin, III, Farris, Warfield & Kanaday, Nashville, for defendant-appellee.
   OPINION

TODD, Presiding Judge,

Middle Section.

The plaintiff, Angelia Nicholson Duncan, has appealed from the judgment of the Trial Court which granted her an absolute divorce and alimony in solido, but no periodic alimony or attorneys fees.

As issues, appellant cites seven alleged errors of the Trial Judge as follows:

1. Failing to find defendant guilty of adultery.
2. Failing to properly analyze the assets of the parties....
3. Failing to award punitive alimony.
4. Failing to award alimony in futuro.
5. Failing to award more alimony in sol-ido.
6. Failing to award attorneys fees.
7. Granting to defendant certain personal property.

As to the first alleged error, the judgment of the Trial Court found the defendant guilty of cruel and inhuman treatment, but not of adultery. Appellant insists that she has a right to a judicial determination of defendants adultery because he admitted it and she needs such an adjudication because of her regligious beliefs. No authority is cited to support this insistence and none has been found.

As important as a person’s religious beliefs may be, there is no provision in our law or system of justice which entitles a citizen to a judicial declaration of fact to establish a religious right. Such rights are determined by ecclesiastical bodies which must make their own findings of fact for purposes of their decisions.

The primary ultimate issue in this case was whether plaintiff was entitled to an absolute divorce. Two subordinate evi-dentiary issues were whether defendant was guilty of adultery and/or cruel and inhuman treatment. The Trial Judge decided the second evidentiary issue in favor of plaintiff. She did not decide the first evi-dentiary issue (adultery). She was not specially requested to make a finding as to adultery; and, if such request had been made, there is no showing of any prejudice from its denial, since the ultimate decision was favorable to plaintiff. TRAP Rule 36(b).

The first alleged error of the Trial Court, if error, does not require reversal.

The second alleged error of the Trial Judge is worded by appellant as follows:

The Trial Court erred in failing to properly analyze the assets of the parties by inflating Mrs. Duncan’s assets and substantially devaluing Mr. Duncan’s assets in contradiction of the evidence adduced at trial.

Although the foregoing complaint appears in capital letters at the beginning of section II of plaintiff’s argument, no reference is found in plaintiffs argument to the valuation of Mrs. Duncan’s assets. The argument discusses only the valuation of Mr. Duncan’s interest in his business. This opinion will discuss only those matters discussed in the argument.

Mr. Duncan was shown to be the owner of 5,000 shares (47.2%) of the stock of Security Alarms and Services, Inc.

The Trial Judge filed a Memorandum Opinion containing extensive findings of fact, including the following:

The Court finds that with respect to the stock of Security Alarms and Services that it was accumulated through the joint efforts of the parties. The Court further finds that an equitable division of this asset would be ¼ to Mrs. Duncan and s/iths to Mr. Duncan. The total value of the asset is $400,000.00. However, since the stock of Security Alarms is closely held, the value of Mrs. Duncan’s interest will be taken from the other jointly owned property.
... [Ojther jointly owned piece of property is the Williamson County farm, having a value of $105,000. Mr. Duncan’s interest in the farm should be awarded to Mrs. Duncan as partial compensation for her interest in Security Alarms and Services. In addition, Mr. Duncan should pay to Mrs. Duncan the sum of $47,-500.00 in cash to complete the payment for her interest in Security Alarms and Services. Upon the payment of said amount Mrs. Duncan’s interest in Security Alarms shall be divested out of her and vested in Mr. Duncan.

It is seen from the above that the Trial Judge awarded to plaintiff a one-half interest in a $105,000 farm which amounted to $52,500, and required payment to plaintiff of $47,500 cash, making a total of $100,-000.00 awarded to plaintiff in lieu of ¼ of defendant’s 47.2% interest in the business.

The finding of the Trial Judge, above, that “the total value of this asset is $400,-000” is interpreted to mean the total value of defendant’s interest in the business, i.e. 47.2%.

Appellant relies upon the testimony of her expert witness, Mr. Garrett, who testified that Mr. Duncan’s interest in the corporation was worth $1,250,000.00.

Appellee relies upon the testimony of his two experts, Blankenship and Kraft, that Mr. Duncan’s stock was worth “between $300,000 and $400,000” and “$350,000”. Thus the Trial Judge rejected the testimony of appellant’s witness and adopted the highest estimate of appellee’s witnesses.

On appeal, both parties argue at length the qualifications of the experts and the bases of their appraisals. Without detailing the many considerations entering into the valuation of stock of a private closely held corporation, this Court is satisfied that the Trial Judge reached the correct result. The decision of the Trial Judge is to be reviewed by this Court de novo with a presumption of correctness unless the evidence preponderates otherwise. The evidence does not preponderate otherwise.

The findings of the trial judge in a non-jury case are entitled to great weight where the trial judge saw and heard the witnesses and observed their manner and demeanor on the stand and was therefore in much better position than the appellate court to judge the weight and value of their testimony. Smith v. Hooper, 59 Tenn.App. 167, 438 S.W.2d 765 (1968).

This Court has considered the various circumstances urged by counsel as weakening the weight of the experts who testified, but is nevertheless satisfied to affirm the finding of the Trial Judge in respect to the value of defendant’s interest in the business.

Sections III, IV and V of appellant’s argument are devoted to the following complaints:

The Trial Court erred in finding that this was not a case where the assessment of punitive alimony against Mr. Duncan was proper.
The Trial Court erred by failing to grant Mrs. Duncan alimony in futuro. (For convenience and continuity, these issues will be discussed together.)
The Trial Court erred in failing to award Mrs. Duncan more alimony in soli-do.

It is true that some Tennessee authorities mention “relative or comparative responsibility of each spouse” as one of the considerations in allowing alimony or fixing the amount thereof, but no decision cited to or known by this Court has awarded alimony in excess of the needs of the aggrieved spouse solely for the purpose of punishing ill conduct.

Some Tennessee authorities refer to consideration of “fault” or “comparative responsibility”, but none suggests that alimony should be fixed in excess of the needs of the wronged spouse for the purpose of punishing the guilty spouse.

For example, in Fisher v. Fisher, Tenn. 1983, 648 S.W.2d 244, there was no issue as to amount of alimony; but the Supreme Court, in rejecting fault as a consideration for division of property, simply said:

There is no question that fault and need are to be considered in determining alimony in futuro. T.C.A. § 36-820. (648 S.W.2d at 247).

In Massey v. Massey, Tenn.1981, 621 S.W.2d 728, the Supreme Court considered a contention that the alimony awarded to the wife should be reduced because of her misconduct. The Court cited authority from other jurisdictions for reducing alimony for misconduct of the wronged spouse, declined to reduce alimony in that case, but said:

We conclude that “the nature of the case and the circumstances of the parties” allows the Court, in fixing alimony, “to consider the conduct of the parties with reference to the cause of the divorce and the relative or comparative responsibility of each spouse therefor”. (621 S.W.2d at 730)

This Court interprets the above to approve reduction of alimony for misconduct of the wronged spouse, but not the addition of unneeded alimony to punish the guilty spouse.

This Court rejects the proposed allowance of "punitive alimony” as such.

As to periodic alimony (which was not decreed), appellant cites McClung v. McClung, 29 Tenn.App. 580, 198 S.W.2d 820 (1946), in which this Court said:

In view of the facts of this case as herein detailed we feel that it is a proper case for alimony. The equity of the husband in the home should be given the wife as alimony in addition to the personal property awarded her. It was the duty of this man to support his wife. Alimony is to be allowed her as a consequence of this duty. In allowing alimony the courts do not do so as a penal measure but out of the common-law duty of the husband to the wife. Toncray v. Toncray, 123 Tenn. 476, 494, 131 S.W. 977, 34 L.R.A., N.S., 1106, Ann.Cas. 1912C, 284. The courts do and should consider the conduct of the husband in fixing alimony-it is his conduct that gives her the right to a divorce.
“The husband owes the duty to his wife of rendering to her suitable support without reference to her financial condition. He ought not to be allowed to escape the performance of that duty by affording his wife cause for separation and placing her in a financial situation worse than it was before his misconduct brought about a legal separation.” Williams v. Williams, 146 Tenn. 38, 44, 236 S.W. 938, 940.

The reference in the foregoing to “worse financial situation” does not refer to a worse situation of net worth or of income where, as in the present case the income and net worth are more than needed to provide for the spouse according to the standards of living established and maintained during the marriage. The intended meaning of “worse financial situation” is a financial situation which would not provide a continuation of the scale of living, or the comforts of life which the wronged spouse had enjoyed during the marriage and which were reasonably to be anticipated if the wrongful conduct of the guilty spouse had not terminated the marriage by misconduct.

Although income , and net worth are interconnected and, to some degree, interdependent, they deserve separate consideration in a divorce ease. The equitable division of joint property under TCA § 36-4-121 is designed to preserve the property rights (i.e. the net worth) of the wronged spouse.

TCA § 36-5-101 provides for “support of spouse”. Subsection (d) of § 36-5-101 provides the 11 criteria for determining the amount of support, among which are:

Standard of living established during the marriage.
Duration of the marriage.
The needs of the wronged spouse.

The ability of each spouse to provide those needs from property awarded under § 36-4-121.

Applied to the present ease, § 36-5-101 requires that an amount of income be ascertained which will provide for the wife to live in the manner to which she became accustomed during the marriage. From this amount should be subtracted her reasonably anticipated income from her own endeavors and from her property, including that awarded to her under § 36-4-121. The result of the subtraction will be the amount by which the husband is obligated to supplement the income of his wife to the extent of his ability (and his ability is adequate). Although § 36-5-101 was not in effect at the time of the decree in this case, its provisions noted above were the controlling law by the decisions of the Courts prior to the decree. See authorities annotated under § 36-5-101, section 12.

The only mention of alimony in the memorandum of the Trial Judge is as follows:

The Court now addresses the question of alimony in solido. This is not a ease where the Court deems that punishment is appropriate in an award of alimony. The law favors an in solido award of alimony where such is adequate. Brown v. Brown, 156 Tenn. 619, 626, 4 S.W.2d 345; Ligon v. Ligon, 556 S.W.2d 763 (Tenn.App.1977); Spalding v. Spalding, 597 S.W.2d 739 (Tenn.App.1980). The Court finds it appropriate to award the home to Mrs. Duncan as alimony in soli-do as well as Mr. Duncan’s interest in the furnishings in said home, with the exception of the articles sought by Mr. Duncan as shown on Exhibit 40. Those articles are awarded to Mr. Duncan. Hereafter Mrs. Duncan will be responsible for the debt against the home.

The house on Belton Drive was found by the Trial Judge to be worth $155,110. Although the Memorandum of the Trial Judge mentions a “debt against the home”, it does not indicate the amount of the debt. The briefs of both parties state that the $155,110 value was the “net value of the equity”. Appellee’s brief states that the debt was about $5,000.00, without citation to the record.

It thus appears that the Trial Court awarded one half of $155,110, or $77,555 as alimony in solido and no alimony in futuro.

Unfortunately, appellant's brief does not enlighten this Court as to the needs of appellant in respect to maintaining her standards of living. This Court is not obligated to search through 1098 pages of testimony for evidence of the cost of maintaining the appellant. Zang v. Leonard, Tenn.App.1982, 643 S.W.2d 657, Schoen v. J.C. Bradford & Co., Tenn.App.1982, 642 S.W.2d 420.

Evidence cited by appellee shows that, prior to the division of marital property and award of alimony in solido, appellant’s income was $69,484 per year or $5,790 per month. Appellant does not challenge these figures by reply brief. Assuming that the half interest in the home, awarded as alimony in solido, did not increase the income of appellant, the cash and one half interest in a $105,000 farm, received in lieu of stock, may reasonably be expected to produce some income.

Where the wronged spouse has income in excess of $5,000 per month, this Court cannot assume that her needs exceed this amount.

In this situation, there is no basis to consider the need of alimony in futuro or increase in alimony in solido.

Appellant next complains that:
The Trial Court erred in failing to assess payment of attorney’s fees to Mrs. Duncan’s attorneys from Mr. Duncan under the evidence presented at the trial.

Appellant cites “the certified record filed with (her) Rule 7 Motion” as evidence of her obligation to pay $20,000 in attorneys fees. The citation is to a transcript of testimony the pages of which are numbered 234, 235 and 319-353, a cursory examination of which does not disclose any evidence of obligation for attorney fees.

Appellants’ brief also cites “TR 28-37” which purports to be an affidavit of appellant’s counsel of 276.5 hours of service for which his charge is $41,475, of which $20,-000 has been paid by appellant.

The record shows that appellant is possessed of adequate property and income to pay for whatever legal services she has received in this case. There is therefore no occasion for awarding her additional alimony to enable her to compensate her attorneys. Ligon v. Ligon, Tenn.App.1977, 556 S.W.2d 763.

Appellant’s final complaint is:
The Trial Court erred in granting to Mr. Duncan items of personal property requested by Mr. Duncan scheduled on trial exhibit 30.

Appellant’s brief makes specific reference to only two groups of items.

The first is “Heirloom Jewelry” consisting of two rings worn by appellant’s father, one being his wedding ring and the other being a diamond ring, both of which were worn by appellant’s father during his lifetime and were inherited by appellant’s mother who permitted appellant to give these rings to appellee. Appellee does not seriously controvert the propriety of requiring the return of these rings, contending only that he did not demand the return of jewelry he gave appellant.

In view of the strong sentiment attached to these rings by appellant, this Court finds that they should be returned to appellant.

The other items requested by appellant are photographs of the children which are identified as “item 5 in Trial Exhibit 30”. Said item reads as follows:

One-half of photographs and portraits of immediate family members and negatives for remaining photographs; all photographs of Mr. Duncan’s mother and father, including the framed photograph of Mr. Duncan’s father and mother hanging in the basement and all photographs of other members of members of his family; framed enlarged photograph or portrait of Joe Duncan, Jr. in CMA uniform; framed enlarged photograph or portrait of Georgia Duncan in green dress and similar photograph or portrait of Becky Duncan if such exists.

The foregoing description is too nebulous and uncertain to form the basis of a court order.

However, appellee’s brief states:

Insofar as the family photographs are concerned, Mr. Duncan has always wanted and intended that she receive copies of pictures. After all, he and Mrs. Duncan participated equally in the care and nurture of the children.

It hardly seems necessary to pronounce a court order to obtain performance of the declared intentions of appellee. However, for the record, this Court will endeavor to do so.

The decree of the Trial Court is modified to require that appellee return to appellant the two rings which formerly belonged to appellant’s father and to deliver to appellant copies of pictures as offered on page 26 of appellee’s brief. As modified, the decree of the Trial Court is affirmed.

In its discretion, this Court taxes one half of the costs of this appeal against each party.

Appellant’s “Rule 7 Motion” (for alimony pending appeal) is overruled.

The cause is remanded for any further necessary proceedings.

Modified and Remanded.

LEWIS and KOCH, JJ., concur.


author: TODD, Presiding Judge.

text:
    Reba D. Tarpley PINNEY, Plaintiff-Appellee, v. Bobby V. TARPLEY, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 7, 1984.
    Application for Permission to Appeal Denied by Supreme Court Feb. 25, 1985.

      James C. Cope, Murfreesboro, for plaintiff-appellee.
    Larry D. Brandon, Murfreesboro, for defendant-appellant.
   ABRIDGED OPINION

TODD, Presiding Judge.

(With concurrence of participating judges, the original opinion has been abridged for publication.)

This appeal involves proceedings to enforce the provisions of a property settlement agreement embodied in a divorce decree. From a decree favorable to the plaintiff, the defendant has appealed.

The parties were divorced on May 19, 1980. The decree approved and included a property settlement executed on March 17, 1980 which provided that defendant would pay and hold plaintiff harmless from a second mortgage of $80,000 on property received by plaintiff. Defendant failed to pay said second mortgage, foreclosure was threatened, and plaintiff was required to refinance both first and second mortgages to avoid foreclosure. Plaintiff filed a “Petition for Contempt and Enforcement of Lien” seeking judgment for $125,000 and a lien upon defendant’s property.

Defendant answered the petition admitting his obligation in respect to the second mortgage, but asserting an affirmative defense that the obligation had been discharged by conveying certain property to the plaintiff. Defendant also counterclaimed for damages for breach of an alleged option agreement whereby plaintiff agreed to convey to defendant all of the property received by her in the divorce decree for an agreed price.

The Chancellor awarded plaintiff judgment against defendant for $90,249.23 and dismissed the counterclaim.

Appellant’s first issue complains of the finding of the Chancellor that plaintiffs claim was not extinguished by accord and satisfaction.

The property settlement and decree required that defendant pay and hold plaintiff harmless from a mortgage debt upon 5 duplexes which were awarded to plaintiff. The debt was $80,000 at the time of the divorce. Interest was payable quarterly and $10,000 principal was due semiannually. Defendant paid one installment of $10,-000 and thereafter defaulted.

Defendant told plaintiff that he was unable to honor his obligation and requested that she “take over” payment of the mortgage. Plaintiff proposed that defendant convey a sufficient amount of property in exchange for a release of defendant from his obligation to pay the mortgage. Defendant proposed that he convey 2 properties, 1446 Bradyville and 1202 Lakeshore. Plaintiff declined, stating that the properties were not worth the 70,000 due on the mortgage. Plaintiff did offer to accept the property plus $10,000 cash.

Thereafter plaintiff met with defendant’s attorney who delivered to her two executed deeds to the two properties together with a proposed written settlement agreement. The $10,000 was not tendered. Plaintiff informed defendant’s counsel that she would not sign the agreement because “we are not in agreement”. She did accept the two deeds and title papers, but left the agreement unsigned with the attorney. She and her husband were obliged to obtain a loan to pay off the mortgage the following day. She placed the deeds in her safety deposit box “so my estate wouldn’t be cheated in case something happened”, as she was about to leave on a trip. Upon her return she and defendant’s attorney resumed negotiations. Defendant’s attorney offered $10,000 cash in addition to the property, but plaintiff refused it because of the additional expense of obtaining the new loan to pay off the mortgage. No agreement was ever reached as to the terms of settlement, and the deeds were ultimately returned after the beginning of this suit. She never had the keys to the two properties and never exercised any dominion over them.

In support of his first issue, defendant argues that there was an accord and satisfaction because plaintiff indicated initially what was required to satisfy her, but later changed her mind. The Trial Court found no such enforceable meeting of the minds, and this Court agrees.

Defendant cites Lytle v. Clopton, 149 Tenn. 655, 665, 261 S.W. 664, 1923. This was an action to collect the fee of an associate attorney retained by consent of the client who pled accord and satisfaction which consisted of sending the attorney a note of a third party for $612.00 which the client considered adequate pay. The attorney accepted and collected the note as part payment but insisted upon more. The Supreme Court approved a $10,000 fee for the lawyer and said:

“An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute, and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to; and a satisfaction is the execution of such agreement.”
“To constitute a valid accord and satisfaction it is also essential that what is given or agreed to be performed shall be offered as a satisfaction and extinction of the original demand; that the debtor shall intend it as a satisfaction of such obligation, and that such intention shall be made known to the creditor in some unmistakable manner. It is equally essential that the creditor shall have accepted it with the intention that it should operate as a satisfaction. Both the giving and the acceptance in satisfaction are essential elements, and if they be lacking there can be no accord and satisfaction. The intention of the parties, which is of course controlling, must be determined from all the circumstances attending the transaction.”

This record does not show that plaintiff accepted the two deeds in settlement. On the contrary, she specifically refused to sign a release and kept the deeds for “security” in the evident hope that defendant would supplement the deeds with an acceptable amount of cash. This is similar to the action of the lawyer in Lytle v. Clopton. He accepted the note but advised the client that it was not in settlement.

Defendant also cites Cole v. Henderson, 61 Tenn.App. 390, 454 S.W.2d 374 (1970). In that case, the debtor sent a check marked “commission in full”, and the check was accepted and cashed by the creditor. Based upon TCA 47-15-103 (written contracts prima facie evidence of consideration) and cited authorities, this Court held:

The cheek sent to this plaintiff was an offer. At first he did not accept it, but he did not reject it, for he kept the offer (check) and the means of accepting the offer (endorsement and cashing) within his power and control. Therefore, the initial offer was a continuing offer, so long as plaintiff had the check. When he elected to endorse the check, he accepted the offer; and the accord was complete. The cashing of the check completed the satisfaction of the accord and the debt affected thereby.

In the present case, there was no such written release; indeed, the plaintiff specifically refused to sign the release.

Moreover, the acceptance of possession of the deeds was not under the circumstances such an act of acquiescence as would bind the plaintiff. The deeds were never recorded; therefore, the defendant remained free to convey the property otherwise. There was no delivery of keys or other indicia of possession or control and, so far as this record shows, the defendant continued to collect rents from the property. In short, the present case is distinguishable from Cole v. Henderson by the failure of plaintiff to register the deeds which would have been equivalent to the cashing of the check in Cole v. Henderson.

In order to establish accord and satisfaction, it must be shown that the creditor accepted a payment with the intention that it should operate as a satisfaction. Willis v. Unicoi County, 166 Tenn. 639, 64 S.W.2d 200, 202 (1933).

The party asserting the defense of accord and satisfaction has the burden of showing by a preponderance of the evidence that the parties intended to effect a satisfaction. Rhea v. Marko Construction Company, Tenn.1983, 652 S.W.2d 332.

Defendant has not carried that burden. Defendant’s first issue is without merit.

Defendants second issue complains of the allowance of costs of refinancing as an element of damage.

The property settlement agreement contains the following language:

5. The Wife agrees to assume the first mortgage indebtedness which is secured by the property set forth in Schedule B, and the Husband agrees to assume all other indebtednesses of the parties; and each party agrees to hold the other harmless from any action arising out of their failure to pay said indebtedness. (Emphasis supplied.)

Schedule B includes the property received by plaintiff. There was a first mortgage on that property which the plaintiff assumed in the above quoted portion of the settlement agreement. However, there was also a second mortgage on the same property on which both parties were obligated, and this second mortgage was included in the “all other indebtedness of the parties” which defendant agreed to assume and “hold the other (wife) harmless” from his failure to do so. The use of the words “any action” are not deemed to restrict the obligation to damages resulting from a suit. The threat of foreclosure by the mortgage is deemed to be included in the words, “any action”.

An agreement to “hold harmless” is a covenant to assume all of the expenses of the stated peril. Winchester Repeating Arms Co. v. U.S., 51 Ct.Cl. 118.

“Hold harmless” means to fully compensate the indemnitee for all loss or expense. First National Bank v. Bankers’ Trust Co., 151 Mise. 233, 271 N.Y.S. 191, 197 (1934) and authorities cited therein. New York Central R. Co. v. General Motors Corp., D.C.Ohio, 182 F.Supp. 273, 291 (1960).

An agreement to “hold harmless” is a contract of indemnity which requires the indemnitor to prevent loss to the indemni-tee or to reimburse the indemnitee for all losses suffered from the designated peril.

In order to avoid foreclosure of the second mortgage which defendant had agreed to pay, it was necessary for plaintiff to obtain a new first mortgage for a sufficient amount to pay both first and second mortgage. The interest rate on the new consolidated debt was greater than the rate on the old first mortgage. Therefore, as a result of defendant’s failure to pay the principal and interest on the second mortgage, plaintiff was required to pay not only the principal and interest on the second mortgage but also additional interest on the amount of the first mortgage over and above the lower interest which would have continued in effect if defendant had not defaulted on his obligation on the second mortgage. In addition, plaintiff was required to pay expenses of the new consolidated loan which she would not have been required to pay if defendant had not defaulted. Each of these extra expenses were directly attributable to defendant’s default and were therefore reasonably within the contemplation of the parties as being recoverable under their “hold harmless” agreement.

Defendant’s argument in support of his second issue would be correct if the agreement had been limited to payment of a specified sum, but the rule is otherwise where such an agreement is coupled with a “hold harmless” covenant.

Defendant’s second issue is found to be without merit.

Defendant’s third, fourth and fifth issues relate to an alleged option agreement. Defendant’s brief cites no part of the record where evidence of such agreement may be found. Defendant cites page 56 of the record which is an exhibit to the counterclaim of defendant. Merely attaching a document to a pleading does not place that document in evidence. This Court would be justified in disregarding issues 3, 4 and 5 on this ground. Rule 6B-Rules of this Court.

However, said document is found in the exhibits to the transcript. It was signed by the parties on May 20, 1980, after the divorce decree. By the document plaintiff granted to defendant a 13 month option to buy 5 tracts of realty for $250,000.00.

During the thirteenth month after execution of the agreement, plaintiff asked defendant whether he intended to exercise the option. He answered in the affirmative. Plaintiff asserted that the understanding included the assumption of existing mortgages on the property in addition to the cash consideration of $250,000.00. When defendant disagreed with this version of the agreement, plaintiff told defendant that “he could forget it on those terms”, meaning the defendant’s insistence upon purchase free of mortgages.

Plaintiff admitted in her testimony that she told defendant “The deal is off”, and that if defendant had offered her $250,-000.00 in cash as per the contract, she would have refused.

Defendant never gave a timely formal notice of exercise of the option or actually tendered performance.

The Trial Court found that the option was unenforceable for lack of consideration.

Defendant insists that plaintiff’s defense of lack of consideration is not available to her because it was not pled as a defense. Plaintiff insists that the issue was tried by implied consent as provided in TRCP Rule 15.02, and relies upon a finding by the Trial Judge that the issue was tried by consent.

Nothing is found in the judgment to indicate a finding of trial by consent, and plaintiff cites no part of the transcript that would support such a finding.

All contracts in writing signed by the party to be bound are prima facie evidence of consideration. TCA § 47-50-103. The want of consideration may be shown as a defense in an action on a contract between the parties. TCA 47-50-103.

The burden of overcoming the presumption of consideration is upon the party relying upon lack of consideration. Douglas v. G.M.A.C., 205 Tenn. 432, 326 S.W.2d 846 (1959). Plaintiff cites no part of the evidentiary record which satisfies this burden.

Under the circumstances, this Court respectfully disagrees with the finding of the Trial Judge that the option was unenforceable for lack of consideration.

Defendant next challenges the finding of the Trial Judge that the option was unenforceable for lack of adequate description. The descriptions in the option were adequate between the parties who had, until the previous day been the joint owners of the property. Rogers v. Roop, 19 Tenn.App. 579, 92 S.W.2d 423 (1935).

Although this Court has heretofore differed with two of the reasons for the dismissal of defendant’s counterclaim, there is a third reason why defendant is not entitled to succeed upon his counterclaim, and that is that defendant never properly offered to exercise his option.

An option is an offer to sell, irrevocable for a specified period. Jones v. Horner, 36 Tenn.App. 657, 260 S.W.2d 198 (1953). It confers on the optionee the right to purchase within the stipulated time subject to the terms of the option. Marsh v. Galbraith, 31 Tenn.App. 482, 216 S.W.2d 968 (1949).

An option cannot be enforced as a contract until exercised by acceptance. The acceptance must be unqualified, absolute, unconditional, unequivocal, unambiguous, positive, without reservation, and according to the terms of the option. An acceptance of an option must be such a compliance with the conditions as to bind both parties, and if it fails to do so it binds neither. 91 C.J.S. Vendor & Purchaser, § 10, pp. 852 et seq. and authorities cited thereunder.

No such exercise by acceptance is shown.

If it be argued that the exercise of the option was waived by the optioner’s declaration of repudiation, the true facts are that the apparent disaffirmance was expressed during a heated “hollering match” in which the parties were not acting to create or destroy contractual rights but “sparring for advantage”. Because of the special circumstances existing between the parties (estranged spouses, business partners, fellow real estate brokers, with pending business relations such as one party handling rentals of the property of the other) it was necessary for defendant to do more than listen to an angry retort in order to exercise so serious and valuable a right as that to purchase $250,000 worth of property. He should have submitted a timely, written declaration of exercise of the option, tendering performance of its terms and demanding deeds. This he did not do.

Moreover, this Court agrees with the Trial Judge that the true intent of the parties was that defendant would have the option to purchase the equity of plaintiff in the properties for $250,000, and not that he would acquire the properties free of encumbrance for this amount. It appears that the custom of the parties in dealing with their property was to consider the equity above encumbrance as being the property. In this view of the option, the plaintiff was correct in demanding the full $250,000 for the equity with defendant assuming existing mortgages.

For the reasons stated, this Court concurs in the decision of the Chancellor to dismiss the counterclaim of defendant.

Plaintiff’s brief states:

For her part of this appeal, Ms. Pinney believes she was not allowed her full measure of damages in the Court’s denial of $769.50 in repairs incurred because of FHA requirements in securing re-financing (R. p. 168) and in the denial of her attorney’s fees. (R. p. 171). With respect to her attorney’s fees, Ms. Pin-ney submits her action was filed as a contempt petition requesting performance by the defendant of an obligation ordered pursuant to a Final Decree of Divorce. (R. p. 12-16). The defendant Tarpley failed to hold Ms. Pinney harmless from payment of this debt and was in contempt of Court. Ms. Pinney prayed for reasonable attorney’s fees in her petition. (R. p. 16). The Court apparently reasoned this action could only sound in breach of contract. (R. p. 171). Accordingly, the Court denied attorney’s fees which Ms. Pinney feels should be reasonably allowed her for enforcing the terms of the Final Decree incorporating the Property Settlement Agreement. (R. p. 307-308). Ms. Pinney respectfully submits she was entitled to these damages and would ask this Honorable Court to allow the same in this appeal.

This Court agrees with the Chancellor that the repairs in question were reasonable expenses of ownership and not peculiarly a result of defendant’s default. There is no occasion for the allowance of attorney’s fees as a part of an alimony allowance. Connors v. Connors, Tenn.1980, 594 S.W.2d 672. Ligon v. Ligon, Tenn.App.1977, 556 S.W.2d 763. Neither is plaintiff entitled to attorney’s fees incurred in the present proceeding to enforce the indemnity agreement. Attorney’s fees incurred by the indemnitee in efforts to avoid the losses are covered by the indemnity agreement. Harpeth Valley Utilities Dist. of Davidson and Williamson Counties v. Campbell and Due Contractors, 225 Tenn. 181, 465 S.W.2d 353 (1971); but this is not such a case. In the absence of an express agreement to pay attorney’s fees for enforcement of a contract, such are not recoverable in Tennessee. Stringfield v. Hirsch, 94 Tenn. 425, 29 S.W. 609 (1895) Goings v. Aetna Cas. & Sur. Co., Tenn.App.1972, 491 S.W.2d 847; Thayer v. Wright Co., 50 Tenn.App. 515, 362 S.W.2d 805 (1961).

The judgment of the Trial Judge is affirmed. Costs of this appeal are taxed against the defendant-appellant. The cause is remanded to the Trial Court for such further proceedings, if any, as may be necessary and proper.

Affirmed and remanded.

LEWIS and CANTRELL, JJ., concur.


text:
    Mirt C. DAVIDSON, Jr., Administrator of the Estate of Grady Wayne Davidson, Deceased; and Sherri Rae Davidson, Plaintiffs-Appellants, v. The POWER BOARD OF the CITY OF PULASKI, Tennessee, and the City of Pulaski; Ensley Griggs and Wife, Cleo Griggs, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 7, 1984.
    Application for Permission to Appeal Denied by Supreme Court Feb. 25, 1985.

      Clinton H. Swafford, Swafford, Peters & O’Neal, Winchester, Pat M. Fraley, Ed Fal-kowski, Fayetteville, for plaintiffs-appellants.
    Susan Emery McGannon, Donelson, Stokes & Bartholomew, P.A., Nashville, Jack B. Henry, Pulaski, for defendant-ap-pellee-Power Bd.
   OPINION

TODD, Presiding Judge.

Plaintiff, Mirt C. Davidson, Jr., Administrator, sued the defendants, The Power Board of the City of Pulaski, the City of Pulaski, Ensley Griggs and wife, Cleo Griggs for wrongful death of Grady Wayne Davidson by electrocution which occurred when deceased was assisting in erection of a television antenna which came in contact with a high voltage wire erected and maintained by the Power Board on the property of Mr. & Mrs. Griggs. The case as to the Power Board was heard without a jury under the Governmental Tort Liability Act and dismissed. This partial judgment was duly entered as a final judgment under TRCP Rule 54.02, and plaintiff appealed.

Appellant presents two issues for review as follows:

I. Whether, by a preponderance of the evidence, the power board was grossly negligent in that, using an unregistered engineer, and relying on an inapplicable national electric safety code provision, it designed, constructed and maintained the power line 2½ feet lower than required by the code.
II. Whether, by a preponderance of the evidence, Grady Wayne Davidson was proximately contributorily negligent, where there was no evidence that he was aware of the presence of the overhead power line, or that it was an uninsulated, high voltage electric power line.

On July 6, 1981, a Mr. Jeff McGill undertook to re-erect an antenna pole which had fallen. He planned to lift the pole and insert it into metal bands attached to a wooden post already set in the ground. The deceased, who lived nearby, volunteered to assist Mr. McGill in the work. As the pole was lifted by both men, the antenna attached to the pole came in contact with a 7200 volt uninsulated wire of the Power Board, and the deceased was electrocuted.

The Trial Judge found that the Power Board was not guilty of violating The National Electric Safety Code or the State Electrical Safety Code, TCA § 68-16-104, or TCA §§ 62-2-101 relative to licensure of engineers, that the Power Board was not guilty of gross negligence but was guilty of ordinary negligence and that the deceased was contributorily negligent. Accordingly, the Board was dismissed.

Appellant insists that the Board was guilty of “negligence per se” by constructing its power line 2½ feet below the height required by the National Code. The Code contains a table which purports to state minimum permissible height of electric wires under various conditions. The applicable column of such heights is for wires carrying 750 to 15,000 volts. Within said column, the following heights are listed:

Where wires cross over:

1. Public Streets, alleys or roads in urban or rural districts — 20 feet
2. Driveways to residence garages — 20 feet
3. Spaces or ways accessible to pedestrians only — 15 feet
Where wires run along or within the limits of public highways or other public rights of way for traffic:
4. Streets or alleys in urban districts— 20 feet
5. Roads in rural districts — 18 feet

The parties agreed that .887 feet should be added to the above minimum height to compensate for temperature and spacing of support poles.

The parties differed as to the Code minimum because of a disagreement as to the classification of the ground surface over or across which the subject wire was suspended. Plaintiff insisted that situation no. 1, above, and a consequent minimum height of 20 feet (plus .887) was applicable. Defendant insisted that situation no. 3, above, and a consequent minimum height of 15 ft. (plus .887) was applicable.

The critical materiality of the difference is created by the fact that the antenna pole was 16 feet 2 inches long, the top band on the wood post was 5½ feet above the ground, the post was located at a point 7 feet from a point directly under the power line where the ground surface was 1.33 feet below the ground under the power line which was 18 feet 4V2 inches from the ground. Considering the measurements just given, it was shown that, as the pole was inserted into the top band of the post, the top end of the pole would be 18.74 feet above the ground under the power line. Accepting this conclusion, the antenna pole or its attached antenna was likely to touch a power line 18.74 feet above the ground, but not a power line 20.887 feet above the ground.

Russell Jackson, a private forensic electrical engineer, testified for the plaintiff that the proper category of the situation of the power wire was no. 1, above, because the road was open to the public and the duty of the Power Board is no less in respect to a private road open to the public than in respect to a road belonging to the public. He also testified that the situation was covered by category no. 2, above, despite the absence of garages. He denied that category 3, above, was applicable because mobile homes were present at the scene and that they were vehicles. Based upon his foregoing assumptions, he testified that the wire was 2.51 feet too low and did not conform to the “spirit” of the Code. Mr. Jackson also testified that the “road” over which the power line was hung was 9 ft. 4 inches wide, that it consisted of scattered gravel which had been pressed down by vehicular traffic into two parallel “tracks”.

Jim Kelly, a private consulting engineer presented by the Board, stated that the road did not fall within any of the above listed classifications except no. 3. He rejected category no. 2, above, because no garage was served by the road. He rejected categories 4 and 5 because the road was not a public road, but was a private drive. He stated that proper height of the wire under the circumstances was 15.887 feet and that its actual height was 2.48 feet above this requirement. He further testified that, in event none of the situations in the table were applicable, then Sections 210 (15a) and 200 (15a) of the Code requiring “accepted good practices” would be applicable and that the height of the wire did conform to “accepted good practices”.

Elbert Powell, operating superintendent of the Lawrenceburg Power Company, testified that he was familiar with the National Code and the practices of utilities in the area, that the wire in question would be classified as being “over a yard or beside a driveway”, and that he would place it in the category of “Spaces or ways accessible to pedestrians only” because the wire does not “cross over” a driveway and the stated category is the only one which correctly describes the location. He further testified that any height over 15 feet would be “good practice” for that location.

James Hannah, superintendent of the Board’s electric system, testified that the line was erected in 1976 at the request of the property owners for serving mobile homes on the property, that the design for the line was prepared by a graduate engineer in accordance with the National Code and approved by the chief engineer of the Board who was a graduate engineer, but that neither of said engineers was a “registered engineer”. Mr. Hannah further testified that the determination of the height of the line was made from the provisions of the National Electric Code for “spaces or ways accessable to pedestrians only”.

This Court respectfully disagrees with the finding of the Trial Judge that the required height of the wire was determined by the classification, “where wires cross over” public streets or driveways. The reason for this is that this record does not show the existence of a road or driveway at the time of the construction of the power line in 1976, nor does it show any notice to the Power Board of the construction or existence of a road or driveway thereafter so as to create a duty to adjust the height of the wire. So far as this record shows, the power line was constructed across an open field prior to its use for any residential purpose. Also, the record does not show that the power line “crosses” the present driveway or road. So far as the record shows, the line runs parallel to a private road, on private property.

Under this record, the correct finding, as of the erection of the wire, was that it crossed an area accessable to pedestrians only, i.e. an area not involving a road or driveway.

This Court does not agree that, by relying upon two graduate electrical engineers in its employ the Board became liable because the engineers were not “registered” as required by TCA § 62-2-101. In the first place, if there was no defect or inadequacy in the power line resulting from the failure of the engineers to “register”, then the failure to register was not a proximate cause of the subject tragedy. In the second place, this Court does not regard the salaried employment of an unregistered graduate engineer by a power system to design and supervise the system as being a violation of TCA 62-2-101 which obviously refers to engineers who do work for the public at large.

Accordingly, this Court finds that there is no evidence to support a finding that the tragedy was the proximate result of negligence of the Power Board.

Plaintiff cites Phelps v. Magnavox Co. of Tennessee 62 Tenn.App. 578, 466 S.W.2d 226 (1970). In that case, the Power Board had erected a wire 68 inches above a roof, and a roofer was electrocuted when his mop handle contacted the wire. This Court reversed a directed verdict holding that a jury could reasonably find that the Power Board should have anticipated that persons would be working on the roof. In the present case, it cannot be reasonably said that the Power Board should have anticipated that a person would be erecting a television antenna of such a height as would touch the power line.

Plaintiff also cites Martin v. Town of McMinnville, 51 Tenn.App. 503, 369 S.W.2d 902 (1962). In that case, the deceased touched a high voltage wire while measuring a roof for the installation of a gutter. The wire was 65 inches above the roof and the defendants had been notified of the dangerous condition and were to have corrected it, but did not. This Court affirmed a verdict for the plaintiff, holding that the issue of negligence or gross negligence was for the jury under the evidence. In the present case, there is no evidence of the installation of a wire in an obviously dangerous location or failure to move it after notice of the danger.

As observed in Odum v. Haynes, Tenn.App. 1972, 494 S.W.2d 795, this Court finds no evidence in this record of any conduct of the Power Board constituting gross negligence, that is with conscious or reckless disregard for the rights and safety of the deceased.

Plaintiff urges that the Board was guilty of gross negligence by violation of a statute, which is negligence per se. Violation of a statute is negligence per se, biit it is not a proximate cause of the injury unless causal connection is shown. Likewise, violation of a statute, though negligence per se is not gross negligence unless the violation occurred under such circumstance as to evidence a reckless disregard of safety of others under the circumstances.

There is no showing that negligence, if any, of the Board, per se or otherwise, occurred under such circumstances as to constitute gross negligence.

The Trial Court found that the deceased was guilty of contributory negligence, holding that the deceased knew or should have known of the presence and danger of the power line. Plaintiff insists that the attention of the deceased was focused on the portion of the pole which he was handling so that he could not watch the movement of the antenna on the opposite end of the pole. However, the issue is not so much where deceased should have been looking at the time of contact with the wire, for he was not in sole control of the pole and antenna.

The controlling factors as to the negligence of deceased were knowledge of presence of the danger and voluntarily undertaking the activity in the presence of the danger without assuring that it could be pursued without injury.

Since the deceased lived in close proximity to the scene, it may reasonably be inferred that he knew that electric power lines were present in the vicinity. While the Trial Court stated that there was no evidence that the deceased was actually aware of the dangerous presence of the power line, the Trial Court found that he knew or should have known of its presence. This being true, it was permissible for the trier of fact to find that deceased should have specifically looked for the wire and made sure that the work could be done in safety. As found by the Trial Court, he was in position to do so. Therefore he should have done so. The finding of the Trial Court as to contributory negligence comes to this Court for review de novo, but with a presumption of correctness unless the evidence preponderates otherwise. TRAP Rule 13(d). The evidence does not preponderate otherwise.

Plaintiff cites City of Elizabethton v. Sluder, Tenn. 1976, 534 S.W.2d 115, wherein a jury found for the plaintiff who was injured when his 20 foot shovel touched a utility wire. The Supreme Court approved the verdict, but said:

II.
[1] This controversy is extremely close on the facts. It was ably and energetically tried, exceptionally well briefed and forcefully argued at the bar of this Court — all in the finest tradition of the trial bar. We are frank to state that the record would have provided ample basis for a defendant’s verdict and we would not have disturbed it on appeal. At the same time it supports the verdict in favor of the plaintiffs and, irrespective of our personal view as an initial proposition, we cannot justify vitiating the verdict of the jury.
[2] It will be borne in mind that in a case involving a jury verdict, approved by the trial judge and affirmed by the Court of Appeals, our review is limited to a determination of whether there is material evidence to support the verdict. (534 S.W.2d at 116).

The cited decision does not require this Court to reverse the finding of the Trial Judge in the present case.

Plaintiff cites International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948), wherein this Court held that whether the injured party was chargeable with knowledge of the presence of a power line was a question for the jury. The same issue in the present case was for the Trial Judge, sitting without a jury. He decided that issue against the plaintiff, and this Court is not justified in reversing his decision for the reasons already stated.

Plaintiff cites Null v. Electric Power Board, 30 Tenn.App. 696, 210 S.W.2d 490, 492 (1948), wherein this Court reversed a directed verdict for the defendant. The statement attributed to this Court by plaintiff related to discovery of danger by the workmen of the defendant, not the injured party.

Plaintiff cites Guess v. Light, Gas & Water Div. of City of Memphis, 55 Tenn. App. 558, 403 S.W.2d 115 (1965), wherein this Court reversed a directed verdict on the ground that the injured plaintiffs were charged with knowledge of the wires. The plaintiffs were painters on a construction project, did not reside in the vicinity, and did not deliberately cause their ladder to contact the wires; it accidentally fell against them. In the present case there was no ruling of contributory negligence as a matter of law, but as a matter of fact by the finder of fact.

Plaintiff cites Martin v. Town of McMinnville, supra, wherein the jury, under the circumstances of that case found that the plaintiff was not guilty of contributory negligence. In the present case, the finder of fact has found the deceased guilty of contributory negligence.

Plaintiff cites Coatney v. Southwest Tennessee Electric Membership Corp., 40 Tenn.App. 541, 292 S.W.2d 420 (1965), in which this Court reversed a directed verdict for the defendant because of jury issues as to negligence of defendant. No verdict or judgment for the plaintiff was involved in that appeal.

Plaintiff insists that the negligence of deceased was not a proximate cause of his injury. If deceased knew or should have known of the presence of the wire, and if deceased should have made sure that the pole he was lifting was not likely to touch the wire, and if deceased failed to do so, but joined in lifting the pole to the point where it touched the wire, then such negligence of deceased could reasonably be determined to be a proximate cause of his injury. Having found the above conditions existed, the finder of fact was justified in finding that the negligence of deceased was a proximate cause of his injury.

Dush v. Fitzhugh, 70 Tenn. (2 Lea) 307 (1899), cited by plaintiff, is not controlling because the Supreme Court affirmed a finding of fact by the Trial Court. It is not controlling in the present case, because it involved a failure to see an open hatchway in a floor, whereas, under the facts as found by the Trial Judge in this case, the deceased voluntarily undertook an unusual task in respect to an unusual object in the presence of a danger of which the Trial Judge found he knew or should have known.

This Court is satisfied that the finding of fact by the Trial Judge that the negligence of deceased proximately caused his injury is supported by the evidences and inferences reasonably arising therefrom, and that the evidence does not preponderate otherwise.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against plaintiff-appellant. The cause is remanded for such further proceedings, if any, as may be necessary and proper.

Affirmed and remanded.

CANTRELL and KOCH, JJ., concur.


author: LEWIS, Judge.

text:
    Iona F. PARTIN and husband William B. Partin, Plaintiffs-Appellees, v. Billy H. HENDERSON, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Dec. 28, 1984.
    Application for Permission to Appeal Denied by Supreme Court March 4, 1985.

      L. Thomas Austin, Dunlap, for plaintiffs-appellees.
    Michael R. Campbell, Campbell & Campbell, Chattanooga, for defendant-appellant.
   OPINION

LEWIS, Judge.

This is an appeal by defendant, Billy H. Henderson, from a jury verdict awarding plaintiff, Iona F. Partin, the sum of $2,000 for personal injuries and her husband, plaintiff William B. Partin, the sum of $1,500 for damage to his 1976 Plymouth automobile and $1,500 for “loss of consortium” and medical expense incurred by Mrs. Partin.

This case arose out of an automobile accident which occurred when the pickup truck driven by defendant ran into the rear of the 1976 Plymouth automobile driven by Mrs. Partin.

Defendant had come to the Partin home to visit Mr. Partin. Mrs. Partin informed defendant that Mr. Partin was working away from home but that she was going to his place of employment. According to Mrs. Partin’s testimony, defendant decided to follow her to the destination. After several miles she turned off the main road, stopped, and waited for defendant to catch up with her. When defendant came around a curve, he lost control of his pickup truck and struck her in the rear. Defendant disputed Mrs. Partin’s version, testifying that he didn’t realize Mrs. Partin had stopped “because there was no sign of her stopping or slowing down, no brake lights, nothing, and I just kept going because I didn’t realize ... she had stopped.”

Defendant, by his first issue, contends he “was denied the right to a fair trial by an impartial jury, free of disqualification prop-ter affectum, by reason of the presence on the jury, unknown to defendant’s counsel, of the second cousin of plaintiff’s counsel....”

Disqualifications of jurors fall into two basic categories: (1) propter defectum, and (2) propter affectum.

Objections based on general disqualifications, such as age, residence, relationship, feeble mindedness, and the like are of the propter defectum class, to which the rule applies that the challenge shall be made before verdict.” Durham v. State, 182 Tenn. 577, 581, 188 S.W.2d 555, 557 (1945).

Disqualifications propter affectum are disqualifications on account of some bias or partiality toward one side or the other of the litigation, Toombs v. State, 197 Tenn. 229, 234, 270 S.W.2d 649, 651 (1954), and objections of the propter affectum class may be made even after the jury has returned its verdict. Durham, 182 Tenn., at 582, 188 S.W.2d at 557.

In this case juror Anna Mae Hartman and plaintiff’s counsel, Thomas Austin, are second cousins. Defendant had no knowledge of this fact until after the jury had returned its verdict. While it might be assumed that Ms. Hartman and Mr. Austin were aware of their kinship prior to trial, it would be an assumption without a factual basis since there is nothing in the record to show that they were aware that they were second cousins.

Defendant relies on Tenn.Code Ann. § 22-1-105 which provides that “[n]o person can act as a juror in any case in which he is interested, or when either of the parties is connected with him by affinity or consanguinity, within the sixth degree, computing by the civil law, except by consent of all the parties.” We are of the opinion that § 22-1-105 does not apply here. While Ms. Hartman and Mr. Austin are related within the sixth degree, Mr. Austin was counsel for plaintiff and was not a party. We have found no Tennessee ease that has addressed this precise question, but “it is well settled that at common law a juror is not disqualified by the fact that he is related to one of the counsel in the ease.” 47 Am.Jur.2d Jury § 314.

Defendant also relies on Toombs v. State and Montesi v. Montesi, 529 S.W.2d 720 (Tenn.App.1973). These cases afford him no support.

In Toombs, a criminal case, the jur- or was a first cousin of the prosecutor’s wife. A prosecutor in a criminal case is a party. The juror was necessarily related to the party by affinity as proscribed by Tenn. Code Ann. § 22-1-105. In Toombs, the juror was asked questions which the court concluded mandated his informing the court of his kinship, and the fact that he did not do so, “justifies the conclusion that he had a purpose unfavorable to [the defendants] in withholding that information.” Toombs, 197 Tenn., at 233, 270 S.W.2d at 651.

The statute does not proscribe a person sitting as a juror who is related to counsel for one of the parties.

Our review of the record shows a distinct absence of any attempt on the part of Ms. Hartman to purposefully withhold the fact that she was related to plaintiff’s counsel. So far as we are able to discern from this record, she answered truthfully each question asked her by defendant’s counsel.

In Montesi, a divorce case, a jury was demanded, and one of the jurors selected in the divorce case had also sat on the jury which convicted the plaintiff in the murder of his first wife. This juror was asked if he knew any of the parties or their attorneys, and he remained silent. “The juror ... was asked specifically if he had heard anything in the news media that would cause him to be prejudiced toward Mr. Montesi to which he replied in the negative.” Id. at 723.

In both Montesi and Toombs the jurors purposefully withheld information, and from the manner in which the information was withheld, it could be presumed that the jurors were biased against one or the other of the parties.

There is nothing in this record to show in any way bias or partiality on the part of Ms. Hartman. Under the facts .here, we find nothing from which bias against the plaintiffs or partiality to the defendant may be presumed.

This issue is without merit.
Defendant’s second issue is [t]he Court erred in failing to hold as a matter of law and peremptorily instruct the jury that plaintiff had violated T.C.A. § 55-9-402 by failing to have red brake and/or stop lights and turn signals on the rear of her vehicle, which violation was negligence as a matter of law, and instead left this determination for the jury.

Tenn.Code Ann. § 55-9-402 provides in pertinent part as follows:

(b)(1) Every motor vehicle shall be equipped with two (2) red tail lamps and two (2) red stoplights on the rear of such vehicle, and one (1) tail lamp and one (1) stoplight shall be on each side....
(c) Each lamp and stoplight required in this section shall be in good condition and operational.

The defendant testified that plaintiff’s vehicle was not equipped with red tail lamps and/or red stoplights, and the plaintiff, Mrs. Partin, admitted that the vehicle was not equipped with red tail lamps and/or red stoplights on the rear. All the proof is that the plaintiff was operating the Plymouth automobile in violation of Tenn. Code Ann. § 55-9-402.

The defendant requested the Trial Court to charge the jury as follows:

I charge you that plaintiff violated T.C.A. § 55-9-402 by failing to have red brake or stop lights on the rear of her vehicle, and such violation is negligence per se. If this violation proximately caused or contributed to this accident, then plaintiff may not recover.

“It is a well settled proposition of law that failure to perform a statutory duty is negligence per se.” Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn.App. 1980). It is also settled that proximate cause and contributory negligence are generally for the jury’s determination. Senters v. Tull, 640 S.W.2d 579, 582 (Tenn. App.1982).

The Trial Judge refused the defendant’s requested charge and instead charged the provisions of Tenn.Code Ann. § 55-9-402 and left it to the jury to determine whether or not plaintiff had violated the statute. It is error for the trial judge to submit issues to the jury when there is no proof to support those issues. Colonial Baking Co. v. Acquino, 20 Tenn.App. 695, 700, 103 S.W.2d 613, 617 (1936). Here, the Trial Judge erred in submitting to the jury the question of whether there was a violation of Tenn.Code Ann. § 55-9-402.

Tennessee Rule of Appellate Procedure 36(b) provides: “A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” Considering the whole record, we are of the opinion that the Trial Judge’s error did not affect the judgment. The jury was charged the provisions of Tenn.Code Ann. § 55-9-402. It was charged that if it found that the plaintiff had violated the provisions of Tenn.Code Ann. § 55-9-402 and that this violation was the proximate contributory cause of the accident, then the plaintiff could not recover. In the absence of a showing that the jury failed or refused to follow the instructions of the trial judge, we must assume that it did follow instructions. The error of the Trial Judge, taking the record as a whole, was harmless.

Defendant’s second issue is without merit.

Defendant’s third issue is “[t]he Court erred by failing to act as thirteenth juror and to weigh the evidence upon defendant’s Motion for New Trial wherein defendant requested the Court to set the verdict aside and grant a new trial on this ground.”

Defendant bases this issue upon the following comment made by the Trial Judge in overruling the motion for a new trial. “But let me state this, I think it was a jury case, otherwise I would have directed a verdict on the evidence, and I’d definitely overrule the first two grounds as to the weight of the evidence.”

Defendant attempts to bootstrap the above language into a conclusion that the Trial Judge refused to act as the thirteenth juror. Defendant reasons that the Trial Judge was saying that since there was enough evidence for the case to go to the jury in the first place, he “would not disturb the jury’s verdict as the thirteenth juror.” Defendant then states: “If this was his reasoning, it was erroneous.” We are unable to conclude from the foregoing language that the Trial Judge abdicated his responsibility as the thirteenth juror. He simply stated that the case presented a jury question and that he was of the opinion that there was sufficient evidence to support the verdict, and he, therefore, “definitely overrule[d]” the motion “as to the weight of the evidence.”

This Court, in Nelson v. Richardson, 626 S.W.2d 702 (Tenn.App.1981), stated as follows:

[In ruling on a motion for a new trial], “it is the duty of the trial judge to weigh the evidence and determine whether it preponderates against the verdict, and if so, to grant a new trial.” If the trial judge makes statements showing that he was not satisfied with the verdict, if the trial judge does not appear to have weighed and considered all of the evidence, if it is impossible to tell whether he has approved the verdict, or if he has disassociated himself from the verdict and has instead merely deferred to the jury, then in any of these instances, it is the duty of the appellate court to grant a new trial.

Id. at 704 (citations omitted). We find nothing in the Trial Judge’s statements to show that he was not satisfied with the verdict or that he failed to weigh and consider all the evidence. We are of the opinion that he approved the verdict and did not “merely defer to the jury.” We are satisfied from the record as a whole that the Trial Judge properly performed his duties as thirteenth juror. This issue is without merit.

The judgment of the Trial Court is affirmed with costs assessed against defendant and the cause remanded to the Trial Court for collection of costs and any further necessary proceedings.

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


author: PER CURIAM.

text:
    Billie Reba TROTTI, Petitioner, v. K-MART CORPORATION NO. 7441 et al., Respondents.
    No. C-3524.
    Supreme Court of Texas.
    Jan. 16, 1985.
    Brown, Todd, Hagood & Davenport, Gene Hagood, Alvin, for petitioner.
    McLeod, Alexander, Powel & Apffel, James L. Ware, and Otto Hewitt, III, Galveston, for respondents.
   PER CURIAM.

The application for writ of error is denied with the notation, “Refused. No reversible error.” However, our action should not be interpreted as approving of the court of appeals’ statement that,

“[T]he trial court failed to act in accordance with Tex.R.Civ.P. 273 and 277, by failing to provide the jury with any definition of ‘mental anguish,’ despite a requested definition offered by appellants.... It is clear, therefore, that mental anguish is a technical, legal term, and that the trial court should have defined that term for the jury in accordance with Rule 277.”

677 S.W.2d 632, 638.


author: RAY, Justice.

text:
    David BYWATERS et ux., Petitioners, v. Frederic G. GANNON et al., Respondents.
    No. C-2858.
    Supreme Court of Texas.
    Feb. 20, 1985.
    Rehearing Denied April 3, 1985.

      Allen, Knuths & Cassell, Robert F. Henderson, Dallas, for petitioners.
    F. Ward Steinbach and R. Scott Stein-bach, Frederic G. Gannon, Dallas, for respondents.
   RAY, Justice.

In 1980, the Gannons, two brothers and a sister, brought a trespass to try title suit against their next-door neighbors, the By-waters, alleging that they acquired title by adverse possession to property claimed by the Bywaters. TEX.REV.CIV.STAT.ANN. article 5510 (Vernon 1958). The trial court, based on a jury verdict, rendered judgment for the Bywaters. The court of appeals reversed the judgment of the trial court and rendered judgment for the Gannons. 669 S.W.2d 756. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

The Gannons’ parents purchased their lot in 1936 and in 1941 built their home on it. Even before they bought their lot, the subdivision developer planted a small privet hedge near the platted property line. In 1955 when the Bywaters purchased the adjoining lot, the hedge had already grown to a width of seven feet, veering over the property line.

This dispute arose in 1980 when Mr. By-waters reviewed a survey map of the lots and decided to erect a fence on the property line. This required Bywaters to clear a triangular area of hedge growth, approximately eight feet wide at its base and tapering to a point some 192 feet away. When the Bywaters cleared the hedge, the Gannons brought this trespass to try title action, asserting title by adverse possession to the entire area once covered by the hedge. TEX.REV.CIV.STAT.ANN. article 5510 (Vernon 1958).

At trial, the jury found that the Gannons had not established title by adverse possession and accordingly, the trial court rendered judgment for the By waters. When the Gannons appealed, the Bywaters failed to timely submit their appellees’ brief. Consequently, the court of appeals employed Tex.R.Civ.P. 419 and limited the statement of facts to those contained in the Gannons’ brief. Considering only those facts, the court of appeals reversed the trial court and rendered judgment for the Gannons.

Before this court, the Bywaters assert that the court of appeals erred in holding that the Gannons established adverse possession to the disputed property. The court of appeals held that the trial court should have instructed a verdict for the Gannons. An instructed verdict, however, is warranted only when the evidence conclusively demonstrates that no other verdict could be rendered. White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943). Also, the question of adverse possession normally is a question of fact, so only in rare instances is a court justified in holding that adverse possession has been established as a matter of law. DeArman v. Suris, 618 S.W.2d 88, 91 (Tex.Civ.App.— Tyler 1981, writ ref’d n.r.e.). In order to establish adverse possession as a matter of law, the claimant must show by undisputed evidence his actual peaceable and adverse possession of the property continuously for more than ten years. Also, the claimant must submit undisputed and conclusive evidence of probative force on each essential element of adverse possession, and inferences are never indulged in his favor. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265, 267 (1908); Hubbard v. Parkman, 398 S.W. 401, 403 (Tex.Civ.App. — Waco 1965, writ ref d n.r.e.). Since adverse possession is statutorily defined as “an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another,” Tex.Rev.Civ.Stat.Ann. art. 5515 (Vernon 1968), the Gannons were required to prove conclusively that they satisfied all the requirements of this definition.

Our examination of the Gannon’s statement of the case in their appellants’ brief leads us to disagree with the result reached by the court of appeals. The only statements made by the Gannons in their brief to support the holding that they adversely possessed the property as of 1951 are:

[t]he Gannons always claimed all property up to this North hedge line and this hedge was maintained, clipped, preserved, watered and nurtured by the Gannons and there was no serious intrusion on this hedgeline until 1980. There was no claim against the Gannons’ property during the years 1941-1959.

These statements, however, are insufficient to support a holding that the Gannons conclusively proved adverse possession as a matter of law. The fact that the Gannons claimed the property does not satisfy their burden to tender conclusive evidence on each essential element of adverse possession in order to prevail as a matter of law. Neither is the Gannons’ statement that they maintained, clipped, preserved, watered and nurtured the hedge conclusive evidence to support adverse possession. Since mowing the grass and planting flowers does not constitute a hostile character of possession sufficient to give notice of an exclusive adverse possession, it stands to reason that maintaining a hedge does not either. Miller v. Fitzpatrick, 418 S.W.2d 884, 890 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n.r.e.); Surkey v. Qua, 173 S.W.2d 230, 232 (Tex.Civ.App.—San Antonio 1943, writ dism’d w.o.m.).

We hold that the Gannons did not establish adverse possession of the disputed property as a matter of law. Consequently, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

McGEE, J., notes his dissent.

      . Rule 419 provides:
      Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.