text:
    STATE of Missouri, Plaintiff-Respondent, v. Randall Lee SMITH, Defendant-Appellant.
    No. 13691.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 6, 1985.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 15, 1985.
    Application to Transfer Denied April 2, 1985.

      John D. Ashcroft, Atty. Gen., Mary Elise Burnett, Carrie D. Francke, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Holly G. Simons, Columbia, for defendant-appellant.
   TITUS, Presiding Judge.

Defendant was jury-convicted of attempted burglary in the second degree. As a prior offender he was court-sentenced to three years’ imprisonment. Defendant appealed.

Near 8:30 p.m. on the day in question a college student was engaged in janitorial services at a store in a small Springfield mall when he twice heard breaking glass. Upon going outside to investigate, the student saw defendant striking a show window of a nearby appliance store with a baseball bat. A stereo-TV combination set with speakers, valued at $650 by the store owner, was then on display behind the glass defendant was breaking. An unlicensed parked automobile with an opened trunk had been backed to within a few feet of the display window. Apparently sensing the student’s presence, defendant ceased his batterings, closed the car’s trunk lid, tossed the bat onto the back seat of the vehicle and drove away. After telling a laundromat attendant to summon police, the student returned to the broken window to inspect the damage only to observe defendant “peek around the corner” of the store. When the student walked in defendant’s direction, he saw defendant bend over, pick up something and throw “a rock or a brick, a piece of a brick” at him before again leaving the scene. The student followed and found where defendant had again parked his car and reported this to the officials who later found, confronted defendant and, after considerable difficulty, relieved him of the window-breaking bat. Defendant was then arrested. Defendant’s trial testimony did not greatly vary from the foregoing except that he asseverated he had not intended to steal the stereo set from the display window he was seen breaking.

None of the three points relied on in defendant’s brief on appeal were asserted by defendant at trial or in his after trial motion to the court nisi. Consequently trial court errors, if any, as now claimed by defendant must be in the context of plain error review as here urged by defendant. State v. Hunter, 626 S.W.2d 398, 402[2] (Mo.App.1981); Rule 29.12(b).

Defendant’s first point is that the trial court erred in failing to instruct on the offense of property damage in the third degree as that was a lesser included offense of attempted second degree burglary. Counsel for the state and defendant submitted instructions to the trial court, none of which contained an instruction on property damage in the third degree. Rule 28.02(b). During the instruction conference, Rule 27.02(k), the trial court advised what instructions would be given. The only verdict directing instruction was on attempted burglary in the second degree. When asked if defendant had “any other instructions to offer,” defense counsel replied, “No, Your Honor.”

Except in homicide cases, an appealing defendant may not fault a trial court for failing to give a lesser-offense instruction unless he specifically requested it. As defendant failed to request the instruction he now says should have been given, the trial court committed no error, plain or otherwise. State v. Olson, 636 S.W.2d 318, 322—323[9] (Mo. banc 1982); State v. Wickman, 655 S.W.2d 749-750 (Mo.App.1983). Defendant’s first point is denied.

Defendant’s second point on appeal is that the trial court committed plain error by giving MAI-CR2d 1.10, the so-called “hammer instruction.” The point incorrectly states that such instruction was given after “the jury foreman expressed a firm conviction that no verdict could be reached.” The following occurred.

11:42 a.m. — Jury retired to deliberate on verdict.
12:45 p.m. — Jury went to lunch.
1:55 p.m. — Jury resumed deliberations.
2:05 p.m. — Jury gave bailiff a slip of paper which bailiff gave to the judge. The note read: “If acquitted, could [defendant] be tried on a lesser charge, destruction of property?”
2:08 p.m. — By an agreement of counsel, the court went to the jury room and, without entering, told the jury the court could not instruct them further.
2:10 p.m. — The jury asked for the exhibits and the bailiff delivered them to the jury room when the lawyers made no objection thereto.
3:15 p.m. — The jury handed the bailiff a note which was given to the judge. The note read: “If the jury cannot agree, what happens?”
3:30 p.m. — The jury was called into the courtroom. The judge asked “without telling me which way the vote is ... tell me what your numerical vote is now.” When advised “It’s two to ten,” the court read and then gave the jury written Instruction Number 11 which was MAI-CR2d 1.10.
3:34 p.m. — The jury retired for further deliberations.
4:00 p.m. — The jury returned to the courtroom with a verdict finding defendant guilty of attempted burglary in the second degree. At defendant’s request, the court polled the jurors and each acknowledged that was his verdict.

Notes on Use 1 under MAI-CR2d 1.10 provides that said instruction “may be given, when appropriate, after extended deliberation by the jury.” The note cites and quotes Rule 20.02(a) which is now Rule 28.02(a). There is no contention that the court failed to carefully follow the remaining notes to the instruction.

In this case, according to our calculations, the jury deliberated some two hours and 38 minutes before the court gave MAI-CR2d 1.10 and thereafter approximately another half hour before returning the guilty verdict. This is most similar to State v. Calmese, 657 S.W.2d 662, 663-664[5, 6] (Mo.App.1983), where the jury deliberated two and a half hours before being given MAI-CR2d 1.10 and an additional half hour thereafter before returning a verdict. In Calmese the court said: “Our re-reading of the challenged instruction shows it is not coercive. It urges open and frank discussion, tolerance and the desirability of a unanimous verdict, but cautions each juror against basing a verdict on evidence he does not believe is true. Timing of giving the mis-named hammer instruction is discretionary. State v. McAllister, 468 S.W.2d 27[6—9] (Mo.1971). Whether and when such instruction is proper is discretionary. State v. Jenkins, 516 S.W.2d 522[22, 23] (Mo.App.1974). Here the time of jury’s initial and post-instruction deliberations does not show a breach of the trial court’s discretion.”

Counsel for defendant relies principally on State v. Wells, 639 S.W.2d 563 (Mo. banc 1982), in support of the contentions advanced in his second point. However, counsel ignores the fact the Wells decision as to MAI-CR2d 1.10 was predicated principally upon the fact that such an instruction was not written, numbered and given to the jury as provided in Rule 28.02(f). Wells is not pertinent authority for defendant’s assertions and the citation thereof is no more helpful nor appreciated than the misleading pronouncements penned in defendant’s second point which is denied.

Defendant’s third and final point relied on is that the trial court erred in failing to sustain his motion for a directed verdict at the close of all the evidence because the state failed to introduce sufficient evidence from which the jury could find defendant guilty of attempted burglary in the second degree as there was no evidence to indicate defendant intended to enter the store whose window he was seen breaking and commit a crime therein.

Under this point we initially note the rule that where the evidence conflicts in a criminal case, the jury’s findings are conclusive. This tribunal may neither determine the credibility of witnesses nor weigh the evidence for the jury’s obvious determination of facts gleaned from conflicting testimony must be accepted by this court. State v. Danforth, 654 S.W.2d 912, 915[1-3] (Mo.App.1983). We also observe that juries have leave to believe or disbelieve all, part or none of the testimony of any witness when considered in relation to all the facts and circumstances of the ease. State v. Lieberknecht, 608 S.W.2d 93, 98[3] (Mo.App.1980). In addition, when reviewing the sufficiency of the evidence, albeit wholly circumstantial, this court is bound to view the evidence in the light most favorable to the state and disregard all contrary evidence and inferences. State v. Anderson, 671 S.W.2d 383, 384[1] (Mo.App. 1984).

In support of his point defendant relies almost exclusively upon his own testimony that he had neither backed the car within a few feet of the store window he broke nor did he have the trunk of the vehicle open. He also testified he had not seen the merchandise displayed behind the window and argues that there was no evidence he had seen the college student “prior to leaving the scene after having broken the window.”

Defendant’s testimony and assertions directly conflict with those of the state. As to the claim defendant had not seen the student “prior to leaving the scene,” it is wholly demolished by the student’s assev-erations, if jury-believed, that defendant threw “a rock or a brick, a piece of a brick” at him “prior to leaving the scene” a second time. Defendant admitted breaking the window as he stood before it for some time as he repeatedly struck it with the ball bat, and the jury could easily have disbelieved that he did not see the $650 stereo unit situate but two feet from the broken window which had been so demolished as to have permitted the stereo’s extraction from the store but for the student’s interruption by his presence.

“A person commits the crime of burglary in the second degree when he knowingly enters unlawfully ... a building or inhabitable structure for the purpose of committing a crime therein.” § 569.170-1. “A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A ‘substantial step' is conduct which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” § 564.-011-1.

As intent or purpose are states of mind there generally is no direct proof thereof. Thus, intent or purpose may be inferred from the circumstances. State v. Carter, 541 S.W.2d 692, 695 (Mo.App.1976). As the jury evidently found, defendant backed the automobile to within a few feet of the showcase window, extracted a ball bat from the vehicle, opened the car’s trunk and commenced, by use of the bat, smashing the window glass which separated defendant from the $650 stereo set by only two feet. Such actions collectively demonstrate steps of the defendant’s purpose to complete the commission of unlawfully entering the store for the purpose of stealing the stereo unit. Defendant’s third point relied on is denied.

Judgment affirmed.

FLANIGAN and GREENE, JJ., concur.

      . References to rules are to V.A.M.R.; references to statutes are to V.A.M.S. Defendant’s counsel on appeal did not represent him in the trial court.


source: Caselaw Access Project

author: STEPHAN, Judge.

license: Public Domain

text:
    In the Matter of the Estate of Major W. NAYLOR, Willis E. Naylor, Individually and as Executor of Estate of Major W. Naylor, Frances J. Naylor, George Frank Naylor, Richard S. Naylor, Rudy Naylor, and Virgie Hadju, Appellants, v. Dorothy KOEPPE, Charlesetta Mumma, Patricia Parker and Charles H. Meyers, Jr., Respondents.
    No. 48196.
    Missouri Court of Appeals, Eastern District, Division Two.
    Feb. 13, 1985.

      Joseph J. Simeone, St. Louis, for appellant.
    Richard Samuel McConnell, Jr., Clayton, for respondent.
   STEPHAN, Judge.

This is an appeal by Willis E. Naylor, as executor of the estate of Major W. Naylor and individually, and by other statutory heirs of the decedent from a judgment of the Probate Division of the Circuit Court of the City of St. Louis construing the will of the decedent. We reverse and remand.

After providing for the payment of debts and burial arrangements, the will in question states that “all the rest, residue and remainder of my estate” is devised and bequeathed:

to my dear wife, Betty P. Naylor, provided however, if my said wife and I should perish in a common disaster, or if she should die within thirty (30) days after me from injuries or effects of a common disaster from which I met my death, then I make instead the following provisions for distribution of said residue of my estate that my said wife would have taken had we not died from such a common disaster:
1. Said estate shall be divided into halves, and shall go as follows ...

The will then provides that each half shall become the corpus of a trust. The beneficiaries of the trusts are testator’s mother and his wife’s mother respectively. The income from each trust is to be paid to each beneficiary during her life. Upon the death of each beneficiary, the principal of the trust is to be paid in equal portions, free of trust, to certain, named remainder-men. With respect to the trust created for the benefit of testator’s mother, the re-maindermen are testator’s six siblings. Similarly, the trust created for the benefit of testator’s mother-in-law names as re-maindermen testator’s wife’s siblings. In the event that either the mother or the mother-in-law did not survive the testator, the will provides that the half of the estate which would have been the principal of the trust passes directly to the remaindermen named in each trust. No children had been born of the marriage of testator and his wife.

As may be seen from the provision splitting testator’s residuary estate in half, all of the provisions relating to the creation of the trusts and benefits to the remainder-men are contingent upon the death of testator and his wife in or as a result of a common disaster. This did not happen. Testator’s wife, Betty, died in August, 1978; and testator died in February, 1981, both of natural causes.

In his petition for approval and final distribution, the executor-appellant submitted that testator had died intestate as to the residue of his estate and sought an order destributing the residue to the heirs at law. After a hearing, the probate court entered an order finding “the language of the testator, taken with all the known circumstances, indicated his intention that the will remain operative as to his estate after the death of his wife from natural causes.” Accordingly, the court ordered that one-half of the residue be paid to Willis Naylor as trustee for testator’s mother, who was then living, with the remainder to testator’s six brothers and sisters. The court also ordered that the remaining half be distributed in equal shares to the wife’s four siblings as the testator’s mother-in-law had predeceased him.

In its order, the probate court stated that it “considered limited extrinsic evidence of the surrounding circumstances to identify and determine the persons who would be the object of decedent’s bounty.” Such evidence included the fact that testator’s wife greatly assisted testator in the operation of his tavern and had worked closely with him in amassing his estate; that the wife’s will, executed on the same date as testator’s, was reciprocal and “mirrors the terms of testator’s will.” From such factors, the court concluded that testator, in spite of the express words of the “common disaster” contingency, wanted his wife’s siblings to share in his estate.

Such extrinsic evidence may be admitted to resolve latent and, under certain circumstances, patent ambiguities in wills. Breckner v. Prestwood, 600 S.W.2d 52, 55-56 (Mo.App.1980). However, the determination by a trial court that an ambiguity exists where, as here, the factual disputes are minimal, are not accorded “the deferential treatment on review afforded factual resolutions under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).” Zaharopoulos v. H.P. Sprenger, 605 S.W.2d 143, 146 (Mo.App.1980); Helmer v. Voss, 646 S.W.2d 738, 742 (Mo. banc 1983). Whether an ambiguity exists is a question of law for the trial court, Zaharopoulos, supra, and an appellate court may appropriately make its own determination of the issue. Helmer, supra.

In the instant case, the trial court did not find an “ambiguity,” rather, it found that “the problem presented by this will is patent.” To resolve such “problem” the extrinsic evidence was admitted. While we find the evidence less then compelling, we base our determination here upon our holding that no ambiguity exists.

Apart from the formal provisions in the opening lines of the will relating to the payment of debts and burial arrangements, the bulk of the testator’s estate is left to his wife unless he and she die in or as a result of a common disaster. Only in the event of such occurrence is the estate divided in half; only in such event are benefits conferred upon the wife’s family members.

It has long been recognized in this State that the operation of a will may be conditioned upon the happening of a certain event and that, if the event does not occur, the will is inoperative. In Robnett v. Ashlock, 49 Mo. 171, 172 (1872), the dispositive provisions of a will were based on the testator’s fear that he would die during an impending trip: “I this day start to Kentucky; I may never get back. If it should be my misfortune, I give my property to ...” The testator did return to Missouri where he lived for thirteen years before his death, and the Court held the will inoperative. Recently, our Supreme Court, citing Robnett, reaffirmed the principle that, “It is perfectly possible to execute a will which has no effect at all unless a specified condition is performed or occurs. If such a condition is expressed, it will be enforced.” Helmer v. Voss, 646 S.W.2d 738, 742 (Mo. banc 1983).

Helmer involved the will of a husband and wife which recited at the outset:

ITEM II: All of our property of any kind and character is at the present time so arranged that it will pass unto the other party in the event of the death of one of the parties herein. Therefore, the purpose of this will is to devise and bequeath the property of the parties in the event of a common disaster to both John Robert Greener and Cecile M. Greener.

There then followed a number of specific items relating to various persons and entities for whom the testators wished to provide. Some of these items were prefaced with conditional language relating to the testators’ dying in a common disaster; other items were unconditional statements of gift. The testators died within a short time of one another, but not as a result of a common disaster.

Four members of the Supreme Court agreed that:

[I]tem II does not say in so many words that the document is to be totally ineffective only if John and Cecile die in a common disaster. If this were the intention, it could be expressed much more clearly. The language may well be interpreted as stating a purpose rather than as establishing a condition.

The majority, therefore, concluded that the bequests which were specifically conditioned upon the testators’ dying in a common disaster were not to be effectuated, and the estate was disposed of through the unconditional bequests. The three dissenting judges were of the view that the contingency of common disaster referred to in Item II made the operation of the entire will conditioned upon a common disaster.

We have no such problem here. The testator clearly and unambiguously stated that he left everything to his wife, “provided however, if my said wife and I should perish in a common disaster, ... then I make instead the provisions ... ” (Emphasis added.) As the Supreme Court said in Robnett, supra, “ ‘If may be a small word, but all know its meaning, and instead of a more formal phrase it is used in common language to express condition or limitation; ...” 49 Mo., at 175. So it is here. Cognizant though we are that courts “are disposed to adopt any reasonable construction which will avoid intestacy,” Hel-mer, supra, 742, we may not, under the guise of “construction,” ignore the pellucid import of the testator’s words.

Accordingly, the cause is reversed and remanded to the Probate Division of the Circuit Court for disposition in accordance with the provision of the will relating to the payment of debts and funeral expenses and the statutes relating to descent and distribution of property as to which a decedent dies intestate. § 474.010, RSMo, et seq.

SIMON, P.J., and SCHOENLAUB, J., concur.


author: PER CURIAM.

text:
    Fred William REINEKE, Petitioner-Appellant, v. Joan Dorothy REINEKE, Respondent-Respondent.
    No. 48377.
    Missouri Court of Appeals, Eastern District, Division One.
    Feb. 13, 1985.
    Nick A. Zotos, St. Louis, for petitioner-appellant.
    Theodore S. Schechter, Clayton, for respondent.
   ORDER

PER CURIAM.

Appeal from an order of the trial court on appellant’s motion to modify the maintenance provisions of a dissolution decree. A written opinion would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).


author: REINHARD, Judge.

text:
    Billie Luther BARKS, Respondent, v. Judith BARKS, Appellant.
    No. 48615.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.

      Rodolfo Rivera, Clayton, for appellant.
    Loyd R. Brinkman, Arnold, for respondent.
   REINHARD, Judge.

Husband appeals the denial of his motion for modification of his child support obligations under a dissolution decree. We affirm.

The parties’ marriage was dissolved in November 1979, and legal custody of their two children was awarded to the wife. Husband was ordered to pay $50 per week for the support of 15-year-old daughter Tammy Barks. No child support was ordered for son Jeffrey Barks, who was 19 years old at the time.

On December 6, 1982, husband filed a motion to modify the dissolution decree, requesting that his child support obligation be terminated because the daughter had become emancipated. Wife filed a reply requesting dismissal of the motion and an award of her attorney’s fees.

A hearing was held on March 22, 1983. The evidence showed that the daughter had previously earned $578 per month. She testified that she was 19 years old, still lived with the mother, and worked as a waitress. She had bought an automobile and was making monthly payments of $207.74. She did not contribute to food or clothing expenses; the mother paid for these items. The daughter further stated she had savings of $7,300 that had been given to her as a child, and she currently saved approximately $60 per month. She intended to enroll in a nine-month dental assistant school. Her mother enforced a curfew of 10:00 p.m. on weeknights and 12:00 p.m. weekends. At the close of the hearing, the trial court overruled husband’s motion.

Husband’s sole point relied on is:
The court erred and abused its discretion in not declaring Tammy Barks emancipated as of her 18th birthday in that such was against the weight of the evidence and against the weight of the case law since Tammy Barks was earning her own livelihood and retained her earnings for her own use.

On review, we will affirm the judgment of the trial court unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Husband has the burden of proving emancipation; it is never presumed. French v. French, 599 S.W.2d 40, 41 (Mo. App.1980).

Emancipation means the relinquishment of parental control, and it terminates the parental obligation to support. In Re Marriage of Heddy, 535 S.W.2d 276, 279 (Mo.App.1976). Consent of the custodial parent, either express or implied, is a prerequisite to emancipation. Vinson v. Vinson, 628 S.W.2d 376 (Mo.App.1982). “The fact that a child is employed and retaining his earnings does not by itself establish that parental control has been relinquished or that the obligation to support has been terminated.” Id. at 377.

Although there is no express emancipation here, husband contends the facts imply wife’s consent to emancipation. He relies on Black v. Cole, 626 S.W.2d 397 (Mo.App. 1981), to support his contention. In that case, the child was a high school graduate who earned sufficient income to support himself. He retained control over his earnings, but lived with his mother who testified she paid for his food and clothing. The trial court found that the child was emancipated. Noting that the trial court was free to disbelieve the mother’s testimony, the Western District found there was substantial evidence to support the judgment.

However, in Vinson v. Vinson, 628 S.W.2d 376 (Mo.App.1982), the trial court refused to declare a child emancipated in circumstances similar to the present case. There the child was nineteen years old and earned over $6000 per year. He lived with his mother, and she paid for his food and clothing. He had enrolled in a college. On appeal, this court affirmed the trial court.

Here, as in Vinson, the trial court’s determination is supported by the evidence. Although the daughter was earning money and spending it on her own behalf, she testified that she still followed her mother’s advice. She obeyed a curfew, intended to enroll in a school, and still depended on her mother for food and clothing. We find the holding in Vinson applicable to this ease. There was no error in failing to declare the daughter emancipated.

Affirmed.

DOWD and CRANDALL, JJ., concur.


author: CLEMENS, Senior Judge.

text:
    Sandra K. ESCOBEDO, Appellant, v. Bolivar M. ESCOBEDO, Respondent.
    No. 48805.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.
    Richard B. Dempsey, Union, for appellant.
    Irving L. Cooper, Clayton, for respondent.
   CLEMENS, Senior Judge.

Contempt of court. Appellant-mother appeals the granting of respondent-father’s motion to cite her for contempt. This for disobeying the court’s previous order granting the father visitation with the parties’ four-year-old daughter.

The underlying decree had ordered the mother to permit the father to have overnight visitation in his home on weekends and also four hours every Thursday.

The trial court found the mother had prevented the father’s visitations by taking the child to Florida for over four days and again to Michigan during the father’s visitation time. The court found the mother had willfully violated its custody decree, was thereby in contempt, fined her $500 and ordered her to pay the father $2,000 for his attorney fees.

Here, the mother does not challenge those amounts but denies she willfully violated the decree because the out-of-state trips were in the child’s best interest and she had taken reasonable steps to notify the father thereof.

The father testified that on each of the charged occasions he had waited at the mother’s home for over an hour without response; later he learned the mother was out of town. On her own behalf the mother testified she had made the mentioned trips after asking her counsel and husband’s secretary to notify the father, but there was no confirming testimony.

Here the mother cites two Missouri cases. Shanks v. Shanks, 603 S.W.2d 46 [1, 2] (Mo.App.1980) holds a contemner’s conduct must be willful and contumacious. Bopp v. Bopp, 671 S.W.2d 348 [11, 12] (Mo.App.1984) upholds the trial court’s ruling unless it is clearly an abuse of discretion.

A marriage dissolution court has. the duty to protect its orders and punishment for non-compliance is discretionary. Carroll v. Blankenship, 553 S.W.2d 307[5] (Mo.App.1977).

In our review we give due regard to the trial court’s opportunity to weigh the credibility of the witnesses. In Re Marriage of Engelhardt, 552 S.W.2d 356[1] (Mo.App.1977). When, as here, evidence shows violation of a child-custody order the burden falls on the custodian to show the violation is faultless. Blair v. Blair, 600 S.W.2d 143[5, 6] (Mo.App.1980). Under those principles we hold the trial court did not abuse its discretion in finding the mother in contempt.

Affirmed.

DOWD, P.J., and CRIST, J., concur.


author: REINHARD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Franklin D. PEPPER, Appellant.
    No. 48088.
    Missouri Court of Appeals, Eastern District, Division Three.
    Feb. 13, 1985.

      Marianne Marxkors, St. Louis, for appellant.
    Anthony P. Gonzalez, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Chief Judge.

Defendant appeals from an order dismissing his application for trial de novo in the circuit court. The case was dismissed for lack of jurisdiction on the grounds there was no order from which the trial de novo application could be taken.

On July 27, 1983, defendant was found guilty in the associate circuit court of the Class A misdemeanor of third degree assault. The trial judge suspended imposition of sentence and placed defendant on probation for two years. As conditions of probation, the court also ordered that defendant serve one day in jail and participate in an alcohol treatment program.

Defendant filed an application for trial de novo in the circuit court pursuant to the statute applicable at that time, § 543.290 RSMo 1978 (repealed 1984). The state moved to dismiss for lack of jurisdiction, maintaining that the order suspending imposition of sentence was not a “judgment” as required by the statute before application for trial de novo can be made . The court sustained the motion to dismiss.

We initially note that a suspended imposition of sentence is not an appealable order for purposes of direct appeal. State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984). Here, we are faced with the issue of whether a suspended imposition of sentence is a judgment for purposes of application for trial de novo. In answering this question, we must determine whether a “judgment” for purposes of the trial de novo statute is the same as a “judgment” for purposes of direct appeal.

Both the right to direct appeal and the right to trial de novo are purely statutory rights, and must be invoked in accordance with the applicable statute. State ex rel. Blackwell v. Elrod, 604 S.W.2d 768 (Mo.App.1980). The trial de novo statute was enacted as a part of the Court Reform and Revision Act of 1978, Laws of Mo.1978, p. 696. Prior to that time, cases such as the present one were tried in the magistrate courts. Section 543.010 RSMo 1969 (repealed 1978). Although the magistrate statutes were phrased in terms of “appeal” from a magistrate decision to the circuit court, the procedure for application was the same as the procedure for application for a trial de novo under the Court Reform Act. Section 543.290 RSMo.1969 (repealed 1978); Section 543.290 RSMo 1978 (repealed 1984). See also Hloben v. Henry, 660 S.W.2d 431 (Mo.App.1983) (comparing the civil magistrate statute with the Court Reform Act provisions for civil trial de novo).

Similar procedures are also required to invoke the right to direct appeal to the appellate courts under § 543.335 RSMo Supp.1983, although a direct appeal is different in substance from a trial de novo. Both require that a person be aggrieved by a judgment, and both require a notice (“application” in the case of a trial de novo) to be filed within ten days of that judgment. Section 543.290.1 RSMo 1978 (repealed 1984) (trial de novo); § 543.335 RSMo Supp.1983, Rule 81.04 (appeal). Furthermore, the requirements for timely filing of an application for trial de novo have been strictly construed, just as in a direct appeal. See, e.g., State ex rel. Weisman v. Edwards, 645 S.W.2d 732 (Mo.App.1983); Essner v. Reynolds, 621 S.W.2d 551 (Mo. App.1981); State ex rel. Blackwell v. Elrod, 604 S.W.2d 768 (Mo.App.1980).

The case law uses the terms “appeal” and “trial de novo” interchangeably. In State v. Fender, 600 S.W.2d 683, 686 (Mo. App.1980), Judge Turnage stated in dicta that “[t]he proper method for appeal from a misdemeanor conviction before an associate circuit judge when a misdemeanor charge is filed directly before such judge is the request for trial de novo_” (emphasis added). In construing the civil trial de novo statute, this court stated, “In order for a person to perfect an appeal to the circuit court from a judgment entered in a case tried without a jury before an associate circuit judge, § 512.180 RSMo 1978, the aggrieved party must file an application for trial de novo ... within ten days after the judgment is rendered. Section 512.190 RSMo 1978.” State ex rel. Weisman v. Edwards, 645 S.W.2d 732, 733 (Mo.App. 1983) (emphasis added).

We can find no authority to support a different interpretation of the word “judgment” for purposes of trial de novo than for purposes of direct appeal. Accordingly, we follow the reasoning in State v. Lynch, 679 S.W.2d 858 (Mo. banc, 1984), and find that an application for trial de novo may not be taken from a suspended imposition of sentence. The circuit court correctly ruled that it was without jurisdiction.

Affirmed.

KAROHL, P.J., and CRIST, J., concur.

      . The trial de novo statute provides:
      Any person convicted before an associate circuit judge for any misdemeanor or infraction may have a trial de novo if the cause was not tried before a jury upon the record or before the judge upon the record by special assignment or transfer, if he shall file, within ten days after judgment is rendered, an application for trial de novo stating that he is aggrieved by the verdict and judgment in the case and that application is not made for vexation and delay ...
      Section 543.290.1 RSMo 1978 (repealed 1984) (emphasis added).


text:
    STATE of Missouri, Respondent, v. Robert K. WEYER, Appellant.
    No. WD 35621.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    Dwight K. Scroggins, Jr., Asst. Public Defender, Fifth Judicial Circuit of Missouri, St. Joseph, 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.

Appeal from conviction for first degree robbery and sentence of ten years imprisonment.

Judgment affirmed. Rule 30.25(b).


text:
    Bill HERRON, Appellant, v. Donald WYRICK, Respondent.
    No. WD 35893.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    Bill Herron, pro se.
    John Ashcroft, Atty. Gen., and Kelly Mescher, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Plaintiff appeals from a judgment dismissing his petition for failure to state a cause of action. Judgment reversed.

Bill Herron, a prisoner at the Missouri State Penitentiary, filed suit on December 15, 1982 against Donald Wyrick, warden of the penitentiary, requesting return of several hobby tools allegedly “confiscated” by Wyrick. Herron alleged that he had been permitted by prison authorities to purchase an electric drill, a file set, a contoured sander, a polisher, and two saw sets. These tools were stored in the prison’s hobby craft room. Herron alleged that, in the latter part of June 1981, prison officials confiscated the tools in retribution for Her-ron’s cooperation with representatives of the American Civil Liberties Union who were investigating conditions at the penitentiary.

Wyrick moved to dismiss the petition for failure to state a cause of action. Rather than presenting legal reasons for dismissing Herron’s petition, the motion alleged alternative facts — that the tools were seized as evidence in an attempted escape. Although the motion did not specify when the attempted escape occurred, Wyrick’s answers to discovery requests only mention an escape attempt on or about July 25, 1981 — approximately one month after Her-ron alleged the tools were seized.

In his first point on appeal, Herron argues that the Court erred in dismissing his petition. Herron argues that his petition alleged a valid cause of action.

Considering liberal rules of construction used to review pro se petitions, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1971), and our scope of review of petitions dismissed for failure to state a cause of action, Porter v. Crawford & Co., 611 S.W.2d 265, 266 (Mo.App.1980), we find Herron’s petition alleges a cause of action in replevin against Wyrick. M.F.A. Cooperative Association v. Murray, 365 S.W.2d 279, 285 (Mo.App.1963).

In addition, Herron seeks punitive damages in a separate count in the petition. Punitive damages are recoverable in re-plevin where legal malice is proven. Hallmark v. Stillings, 648 S.W.2d 230, 236-37 (Mo.App.1983). Herron alleged that Wy-rick, or his subordinates, without legal justification (indeed for the improper motive of retaliation for cooperation with representatives of the ACLU), willfully exerted control over Herron’s personal property in a manner inconsistent with Herron’s right to the property, and has refused to return the property on demand.

Wyrick’s motion to dismiss does not attempt to show that the petition is legally deficient. Rather, Wyrick states an alternative version of the facts. He alleges that the tools were seized as evidence in an escape attempt and to safeguard Herron from suicide attempts. If Wyrick were to demonstrate these facts at a trial, or upon motion for summary judgment, they might well amount to a valid defense. However, their mere assertion in a motion to dismiss cannot defeat a petition which, on its face, states a cause of action. In ruling on a motion to dismiss, the allegations of the petition must be taken as true. Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161, 166 (Mo. banc 1975).

Although not presented to the trial court, Wyrick argues in his brief to this court that he is authorized to retain Her-ron’s property until his release, citing Section 217.200, RSMo Supp.1982. That statute authorizes the chief administrative officer of a penal institution to hold and safeguard a prisoner’s property until his release. However, the statute also makes mandatory the return of property to a prisoner when he “demands them for purposes consistent with law and regulations.” The statute thus recognizes a prisoner’s entitlement to his own property “for purposes consistent with law and regulations”. Her-ron has alleged that he was authorized by prison officials to store his tools in the hobby craft room and to use them during recreational periods. Therefore, the statute provides no absolute bar to Herron’s claim. Instead, this is another factual dispute (whether Herron’s limited use of the tools was authorized) which must be resolved by evidence.

Our resolution at the first point makes it unnecessary to consider Herron’s other points on appeal. The judgment is reversed, and the case is remanded for further proceedings.

      .The statute cited in respondent's brief was enacted in 1982, 1982 Mo.Laws p. 448 § 40 (codified at § 217.200, RSMo Supp.1982) and became effective August 13, 1982.
      It reads as follows:
      1. The chief administrative officer of each institution, or his designee, shall take charge of all money and other articles of value which may be brought to an institution by any inmate or come into his possession in a manner consistent with law or with regulations of the division or institution.
      2. Such money or articles shall be returned to the inmate legally entitled to them when he is discharged or demands them for purposes consistent with law and regulations, except for any money confiscated as contraband pursuant to section 217.365.
      3.The chief administrative officer shall keep records of receipts and disbursements for such money and articles.
      This statute, and not its predecessor, § 216.310 (repealed 1982 Mo.Laws p. 438 § A), applies, since the determinative issue in replevin is plaintiffs right to possession at the time he files suit, in this case, December 15, 1982. Auffen-berg v. Hafley, 457 S.W.2d 929, 935 (Mo.App. 1970).


author: KENNEDY, Presiding Judge.

text:
    Inez ZINK, Randall Zink, Kathryn Ann Davis, Appellants, v. EMPLOYERS MUTUAL LIABILITY COMPANY and James E. Allis, Respondents.
    No. WD 36044.
    Missouri Court of Appeals, Western District.
    Feb. 13, 1985.
    John C. Milholland, Harrisonville, J. Kirk Rahm, Warrensburg, for appellants.
    Allen R. Purvis and Stephen E. Scheve, Kansas City, for respondent Employers Mut. Liability Co., Ross Eshelman, Clinton, for respondent Allis.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   KENNEDY, Presiding Judge.

Plaintiffs’ decedent, James Zink, and defendant James E. Allis were both truck drivers in the employ of Clearfield Cheese Company. They were riding in a Clearfield Cheese Company truck in Alabama on December 31, 1976, when the truck left the highway and Zink was killed. At the time of the accident Allis was driving the truck and Zink was riding therein.

Zink’s wife and children, the plaintiffs here, brought an action against Allis for damages for Zink’s wrongful death and recovered judgment for $500,000. This action is an equitable garnishment brought under § 379.200, RSMo 1978, to collect the judgment from Employers Mutual Liability Insurance Company of Wisconsin, which insured the truck for Clearfield. Employers has from the beginning denied coverage on the ground of the “fellow employee” exclusion contained in its insurance policy issued to Clearfield. In this equitable garnishment proceeding it continues to assert that defense against plaintiff's claim.

The trial court granted summary judgment to Employers, from which judgment plaintiffs have prosecuted this appeal.

On our own initiative we consider whether we have jurisdiction of the appeal. McIntyre v. Seabaugh, 655 S.W.2d, 712, 713 (Mo.App.1983).

In the same lawsuit defendant James E. Allis has filed a cross-claim against Employers, by which he seeks reimbursement for his attorney’s fees of $3,963.38 incurred by him in the defense of the wrongful death action against him by Zink’s survivors which resulted in the $500,000 judgment, and also for additional attorney’s fees incurred “in connection with defense and prosecution of the claims in this instant action”.

Employers filed a motion for summary judgment as against the plaintiffs, but it did not file a motion for summary judgment as against Allis on his cross-claim. The court took up Employers’ motion for summary judgment against plaintiffs on April 30, 1984. He filed his written judgment on May 15, 1984. The judgment, entitled “Order”, does not purport to dispose of Allis’s cross-claim against Employers. The operative part of the order was as follows: “Defendant ‘Employers’ motion for summary judgment is hereby granted. Plaintiffs’ motion for summary judgment is denied. Costs assessed against plaintiff. The court declines to award attorney’s fees to either party”. Earlier in the order, the court said:

Defendant ‘Employers’ motion to dismiss and motion for summary judgment, cost and attorney’s fees were argued orally and taken under advisement by the court pending receipt of additional suggestions from plaintiffs and defendant ‘Employers’. Plaintiffs moved for a summary judgment and cost by their suggestions. These suggestions having been filed and considered by court as well as the evidence adduced at the April 30th hearing, the court, now on this 15th day of May, 1984, finds and rules as follows:

There followed the facts found by the court and the law applicable thereto, and some discussion with reference thereto. Nowhere does the court purport to rule on Allis’s claim, although the court in the discussion portion of the order said: “The court therefore finds that Allis and Zink were ‘fellow employees’ and that ‘Employers’ policy contains a valid exclusion. Since no coverage exists, Employers had no duty to defend Allis or to pay for his defense. Since nothing is then owed, there can be no equitable garnishment as plaintiffs assert in their petition herein.” (Emphasis supplied.)

The court’s gratuitous expression of his conclusion that Employers “had no duty to defend Allis or to pay for his defense” cannot be considered as a judgment disposing of Allis’s claim. Allis’s cross-claim had not been submitted to the court. During the course of the argument it was clearly and expressly stated by Employers’ counsel and by Allis’s counsel that the controversy between Allis and Employers was not before the court for disposition. Not only did the court not purport by his order to dispose of that cross-claim, he could not have done so had he chosen to do so. See Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11, 13 (Mo.App. 1966).

The judgment is therefore not a final appealable judgment, in that all parties and all issues have not been disposed of. International Harvester Credit Corporation v. Formento, 621 S.W.2d 90 (Mo.App. 1981); Bennett v. Wood, 239 S.W.2d 325 (Mo.1951). The appeal must be dismissed.

In order that the parties may expedite their appeal after the judgment has become final, they are referred to the procedure recommended by New Style Homes, Inc. v. Fletcher, 600 S.W.2d 634 (Mo.App.1980).

All concur.


author: LLOYD TATUM, Spfecial Justice. LLOYD TATUM, Special Justice.

text:
    Mary Sue Massey BUSBY, Appellee, v. James P. MASSEY, Administrator of the Estate of Roy Stephen Massey, Deceased, Appellant.
    Supreme Court of Tennessee, at Jackson.
    Dec. 26, 1984.
    Rehearing Denied Feb. 11, 1985.
    G. Michael Aeree, Tipton, Tipton & Aeree, Covington, for appellant.
    Leo Bearman, Sr., Jerry 0. Potter and Robert Mark Field, Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, for amici curiae.
    James W. Hodges, Hodges, Richbourg & Yurchik, Memphis, for appellee.
   OPINION

LLOYD TATUM, Spfecial Justice.

This is a wrongful death suit brought by James P. Massey, administrator of the estate of the deceased father of minor beneficiaries. The administrator obtained court approval for a consent decree representing a structured settlement of $580,000.00. The mother of the minor children, Mary Sue Massey Busby, filed a motion to intervene in the wrongful death action initiated by the administrator, have the consent judgment vacated and herself substituted in the place of the administrator to prosecute the suit on behalf of the minors. The Court of Appeals vacated the order approving the consent judgment and remanded the case to the trial court with directions that Mrs. Busby be heard on the question of whether the proposed settlement is to the best interest of the minor beneficiaries. We affirm the judgment of the Court of Appeals.

On July 3, 1981, Roy Stephen Massey died from injuries sustained in an automobile accident. At the time of his death, Roy Stephen Massey was divorced from Ms. Busby and had legal custody of his two minor children. On September 22, 1981, the appellant administrator filed the wrongful death suit in the Circuit Court of Tipton County on behalf of the two minor children against Pat Winters and A.C. Electric Company. Two days after this suit was filed, the appellee, Ms. Busby, was awarded custody of the children by the Chancery Court of Tipton County. On March 18, 1982, the administrator filed a petition in the Circuit Court of Tipton County, requesting the court to approve a compromise settlement of the wrongful death action and to appoint an attorney (guardian?) ad litem for the minor children. An “attorney ad litem” was appointed on March 19, 1982, and on the same day the answer of the attorney ad litem was filed and a consent judgment in settlement of the wrongful death action was approved and entered in the trial court. By letter of February 3, 1982, Ms. Busby’s attorney, James W. Hodges, advised the administrator’s attorney Mr. G. Michael Aeree, that Ms. Busby was filing a wrongful death suit in Shelby County and requested that the administrator “withdraw from the ease.” By letter of February 4, 1982, the attorney for the administrator informed the attorney for the appellee that negotiations for a settlement were in progress.

On May 17, 1982, the appellee, Ms. Busby, filed a motion stating that she was the mother of the minor children, that she was awarded legal custody of the children by the Chancery Court on September 24, 1981, and that she was appointed guardian for the children by the Shelby County Probate Court on March 26, 1982. She alleged that she was the “proper party plaintiff to bring this wrongful death action on behalf of her children as their legal custodian and guardian,” on the theory that the children’s rights were superior to the rights of the administrator. She prayed for permission to intervene, to set aside the consent judgment that had been approved by the trial court and to be substituted as the proper party plaintiff in the wrongful death action. The trial judge entered judgment denying the relief sought.

The Court of Appeals held that the right of the children to sue or settle the action is superior to that of the administrator and that the right of the appellee “to guardianship of the children ... is superior to that of the guardian ad litem.” The Court of Appeals reversed the judgment of the trial court overruling the motion to intervene, vacated the judgment of the trial court approving the settlement and remanded for further proceedings consistent with its opinion.

We first consider the question of whether the administrator had legal authority to commence and maintain this wrongful death case to its conclusion.

It is well recognized that wrongful death actions did not exist at common law; any cause of action that a claimant had was abated by his death. The Tennessee survival statute is T.C.A. § 20-5-106:

“20-5-106. Injury resulting in death — Succession to cause of action.— (a) The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death but shall pass to his surviving spouse and, in case there is no surviving spouse, to his children or his next of kin; or to his personal representative, for the benefit of his surviving spouse or next of kin; or to his natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered by them, otherwise to his legally adoptive parents or parent, or to the administrator for the use and benefit of the said adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors.
(b) For purposes of this section, the word ‘person’ shall include a fetus which was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development where in (sic) it could reasonably be expected to be capable of living outside the uterus, (citations omitted).”

There is no issue in this litigation regarding the identity of the beneficiaries. The deceased was survived by no widow and his next of kin were the two minor children for whose benefit this action was originally brought by the administrator.

The appellee insists that the Tennessee Wrongful Death Statute should be interpreted to mean that those first in enumeration have prior and superior rights to bring wrongful death actions to those listed after them. She cites Chapman v. King, 572 S.W.2d 925 (Tenn.1978); Cummins v. Woody, 177 Tenn. 636, 152 S.W.2d 246 (1941); Spitzer v. Knoxville Iron Company, 133 Tenn. 217, 180 S.W. 163 (Tenn.1915); Koontz v. Fleming, 17 Tenn.App. 1, 65 S.W.2d 821 (1933). These cases support the proposition that a widow or next of kin, not hampered by the disability of minority, has superior right to maintain a wrongful death action for his or her own benefit over an administrator of the estate of the deceased. The cases recognize that the adult beneficiary may waive his or her right to maintain the action by permitting the administrator’s suit to stand without objection. Koontz v. Fleming, supra 65 S.W.2d at 824.

However, in the instant case, the next of kin are minors. They cannot sue in their own names but must sue by another. T.C.A. § 20-5-107 provides:

“20-5-107. Prosecution of action by representative or surviving spouse or next of kin. — The action may be instituted by the personal representative of the deceased or by the surviving spouse in her own name, or, if there be no surviving spouse, by the children of the deceased or by the next of kin; also without the consent of the personal representative, either may use his name in bringing and prosecuting the suit, on giving bond and security for costs, or in the form prescribed for paupers. The personal representative shall not, in such case, be responsible for costs, unless he sign his own individual name to the prosecution bond, (citations omitted).” (Emphasis supplied)

In construing the wrongful death statutes, we must look to the legislative intent, which controls the construction of all statutes. We must construe the statutes as a whole and assume that the legislature used each word purposely and that they conveyed some intent and had a meaning and a purpose. Tidwell v. Servomation — Willoughby Company, 483 S.W.2d 98 (Tenn.1972). T.C.A. § 20-5-107 specifically authorizes personal representatives to institute wrongful death actions for a surviving spouse or next of kin. This is the only way provided by the wrongful death statute itself for persons under disability to sue. The statute further provides that wrongful death actions may be maintained by the beneficiaries in their own name. We reaffirm the holdings in the above-cited cases that an adult beneficiary has priority over an administrator in prosecuting his/her own suit. We also recognize that a court-appointed general guardian or next friend may sue for minors as provided in Rule 17.03, Tennessee Rules of Civil Procedure, since a minor cannot maintain a suit in his own name. We do not agree that a general guardian or next friend necessarily has priority over an administrator in the prosecution of wrongful death actions on behalf of persons under disability. The minor is the real plaintiff, not the fiduciary in whose name he sues.

Absent a showing of bad faith, fraud, or other good cause, we do not think that the legislature intended that a suit commenced in good faith by the personal representative must be subordinated to that of a guardian or next friend. Logic does not permit any other construction. Since the cause of action is that of the decedent, the right to institute the action accrues at the time of injury and the minority of the beneficiaries will not toll the one year limitation period. Jones v. Black, 539 S.W.2d 123 (Tenn.1976); Whaley v. Catlett, 103 Tenn. 347, 53 S.W. 131 (1899). Minors cannot act for themselves in contracting with counsel and otherwise making provisions to institute the wrongful death action. They must depend on someone to act for them. If the personal representative and attorneys employed by him were required to step aside at the whim of a guardian or next friend, then the administrator could never employ counsel to investigate, file and prosecute the suit on behalf of the minor. The administrator has a duty to protect the interest of minors in these cases. He cannot fulfill this duty if he is required to wait until the last day before suit is barred by the statute of limitations before he can contract with an attorney and otherwise act in the filing and prosecution of a suit.

In the present case, there is no allegation that the administrator was not concerned with the best interest of the minor children and acting diligently and in good faith on their behalf. The appellee makes eoncluso-ry allegations in her motion to intervene that the proposed settlement was inadequate, the attorney’s fees were excessive, and similar charges. She alleges disagreement with the administrator concerning the fairness of the settlement but she does not charge him with negligence, bad faith or misconduct. She alleges nothing that would require the substitution of herself for the administrator in the prosecution of the children’s claim.

There is much discussion in the briefs concerning who has the authority to actually settle or compromise a claim for a minor. The wrongful death statutes provide that wrongful death suits may be prosecuted by the personal representative of the estate of the person wrongfully killed, but the statutes are silent as to the procedure for settling or compromising wrongful death claims when the beneficiaries are minors. We think that it is clear that T.C.A. § 34-3-113 is applicable to wrongful death suits. The personal representative, when suing on behalf of infants, has the same responsibility and duties as those conferred upon the parent, guardian or next friend of such infants. T.C.A. § 34-3-113(a) provides:

“34-3-113. Compromise of claims.— (a) In any action or suit wherein an infant or insane person is a party, the court in which the same is pending shall have the power to approve and confirm a compromise of the matters in controversy on behalf of such infant or insane person, if such compromise shall be deemed to be to the best interest of such infant or insane person, and any order or decree approving and confirming any such compromise shall be binding upon such infant or insane person. Such order may be entered either in term time or in vacation, without the necessity of a jury verdict or approval.”

The above statute places the responsibility and burden upon the court to act for the minor. As stated in Rafferty v. Rainey, 292 F.Supp. 152 (E.D.Tenn.1968), the trial court is not bound by desires, interests or recommendations of attorneys, parents, guardians or others.

However, we construe T.C.A. § 34-3-113 to require that notice be given to parents and guardians of infants when a proposal for a compromise or settlement is submitted to the court for approval. T.C.A. § 34-3-113(b) provides:

“(b)(1) In any ease of personal injury to an infant or insane person caused by the alleged wrongful act, neglect or default of any person, firm or corporation, when death does not ensue, or in case of any other claim by an infant or insane person, against any person, firm or corporation, the parent, guardian or next friend for such infant, or the committee or next friend of such insane person, with the approval of any circuit judge or chancellor, may compromise any such claim for such damages. Such approval may be applied for by the parent, guardian or next friend of such infant or the committee, or next friend of such insane person, or by the person, firm or corporation who caused the injury, or by joint petition of the parties, on petition to such circuit judge or chancellor, in term time or vacation, stating the proposed compromise, the terms thereof, and the reasons therefor.
(2) A copy of such petition shall be served upon the defendant or defendants, where they have not joined in the petition filed. In case such petition is filed by the person who caused the injury, the judge or chancellor shall appoint a guardian ad litem for such infant or insane person, and shall cause the parents or guardian of such infant, if such there be, within the jurisdiction of the court, or the committee of such' insane person, if such there be, to be made parties to the proceedings. The proceedings on any such petition may be heard either in term time or in vacation, and there shall be no necessity for a jury verdict or approval, and no party to the proceedings shall be required to demand a jury. The circuit judge or chancellor shall approve such compromise, if it shall be deemed to be to the best interest of such infant or insane person. The order or decree approving and confirming any such compromise shall be binding upon such infant or insane person.” (Emphasis supplied)

Actually, the petition seeking approval of a settlement was filed in this case only by the administrator. The defendants did not join in the petition and a copy was not served on them. The consent judgment does not recite that the defendants, Pat Winters and A.C. Electric Company made voluntary appearances, though the judgment states that their insurance carrier appeared by agent and the agent approved the entry of the judgment. T.C.A. § 34-3-113(b) requires that defendants join in the petition or that a copy be served on them so they will be bound by any judgment approving a settlement.

If the defendants and their insurance carrier were in accord with the consent judgment, it was appropriate for them to join in the petition. If they had agreed to the settlement, it was to their interest to have it approved by the court so as to make it binding upon the minors. We hold that regardless of the procedure employed in making the defendants a party to the petition — i.e., whether they join in the petition or a copy is served on them — the petition was “filed by the person who caused the injury” within the meaning of T.C.A. § 34-3-113(b)(2) and that a copy of the petition for court approval should have been served on the appellee as parent and guardian. We must look to substance and not to form.

Since the appellee was not served with a copy of the petition, the judgment thereon is not binding on her or the minors. On remand, the appellee may be heard on the question of whether the proposed settlement will serve the best interest of the minors. The trial court will also hear the administrator and the guardian ad litem.

The judgment of the trial court approving the consent judgment is vacated and the case is remanded to the trial court for a new hearing on the petition for approval of the settlement. Costs accrued in the Court of Appeals and in this court are adjudged against Mary Sue Massey Busby, as guardian.

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

ON PETITION TO REHEAR

LLOYD TATUM, Special Justice.

The appellee, Mrs. Busby, has filed a petition to rehear asking us to consider the following questions:

1. Can the trial court approve a compromise settlement pursuant to TCA Section 34-3-113 which is not agreed to by all parties to the action?
2. Has the administrator been guilty of bad faith and neglect in proposing approval of the settlement agreement?
3. Does the policy, announced in the Court's previous opinion, create a “race to the courthouse” detrimental to the best interest of minor beneficiaries of the wrongful death statute?

She argues that since we held that she was a necessary party to a proceeding to compromise the litigation, the matter cannot be compromised without her consent. She asks us to carefully read T.C.A. § 34-3-113(b), stating that it supports her contention. We have complied with her request but find nothing indicating that a parent or guardian may prevent the compromise of a minor’s claim without good cause. We adhere to our original holding that the approval of a compromise between a minor plaintiff and a defendant is the responsibility of the trial judge. Mrs. Busby, as parent and guardian will have the opportunity to be heard by the trial court on the question of what will serve the best interest of the minor plaintiffs. The trial court will then resolve the disagreement. The question is not left to the whim of the parent, guardian or any other party involved.

The question of whether the administrator is guilty of bad faith and neglect in proposing approval of the settlement is a question of fact for determination by the trial court in deciding whether the proposed settlement will serve the best interest of the minors. This is not a matter for original determination by the Supreme Court.

Finally, the appellee questions whether a “race to the courthouse” will be detrimental to minors in wrongful death actions. The main opinion states our understanding of the law. We do not see and are not told how a “race to the courthouse” can be detrimental to minor plaintiffs. We see no danger in vigilance on the part of those acting for minors. We are more concerned with creating circumstances that will result in minor beneficiaries’ claims being barred by the statute of limitations.

We considered all of the questions asked in the petition to rehear before filing our main opinion. We adhere to the holding of the main opinion and respectfully overrule the petition to rehear.

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


author: DROWOTA, Justice.

text:
    George A. ARNOLD, Plaintiff-Appellee, v. FIRESTONE TIRE AND RUBBER CO. and The Travelers Insurance Co., Defendant-Appellants.
    Supreme Court of Tennessee, at Jackson.
    Dec. 31, 1984.

      Edward F. Butler, Memphis, for plaintiff-appellee.
    William W. Dunlap, Jr., Joseph K. Will-cox, Memphis, for defendants-appellants.
   OPINION

DROWOTA, Justice.

In this worker’s compensation case, Plaintiff seeks compensation for disability from an occupational disease that allegedly arose out of and in the course of employment. There are two principal issues in this case: (1) Whether the Plaintiff’s underlying condition, allergic asthma and bronchitis, arose out of and in the course of employment; and (2) whether there was any aggravation of the underlying condition that is compensable under the occupational disease sections of the Worker’s Compensation Act.

At trial it was concluded that the Plaintiff’s underlying condition did not arise out of and in the course of employment but was attributed to Plaintiff’s history of smoking. However, the trial judge found that the proof established that the Plaintiff’s condition was aggravated by inhalation of various substances at the Firestone Plant. Our primary task on appeal is to determine if there is any material evidence to support each of the findings by the trial court. T.C.A. § 50-6-225(e).

The Plaintiff was employed at the Firestone Tire and Rubber Plant in Memphis from September 30, 1940, until June 10, 1978. It is undisputed that the Plaintiff has smoked from one and one-half to two packs of cigarettes since he was fifteen years old (he was sixty years of age at the time of trial in September, 1982). Beginning in 1973, the Plaintiff began to suffer coughing, wheezing and shortness of breath. These attacks originally began at home but it is not clear when they began to occur at work. At trial Plaintiff testified that he had coughing spasms at the plant prior to 1978. A witness for Plaintiff corroborated his story.

Plaintiff alleges in his complaint that conditions at the Firestone Plant precipitated his bronchitis. He alleged that conditions at the plant had remained the same during his employment, although other employees testified that conditions had improved dramatically.

The Plaintiff first saw a doctor in regard to his coughing on March 15, 1978. Dr. Robbins told the Plaintiff that he should stop smoking but Plaintiff was unable to do so. A series of pulmonary function studies were conducted on Plaintiff in May of 1978 and the Plaintiff was considered normal for a person of his age and smoking history. Shortly after these studies, Plaintiff terminated his employment with Firestone. On June 26, 1978, Dr. Taylor, an allergy specialist, performed an “allergy survey” on Plaintiff and found him to be allergic to house dust, animal dander, trees, and grass and weed pollen. Dr. Taylor concluded that the Plaintiff was permanently disabled. Plaintiff told the doctor he was exposed to pollutants at the plant and the doctor concluded these pollutants “may well exacerbate his condition and that it would be detrimental to his health” to continue to work in the plant. Dr. Taylor’s knowledge of the conditions at Firestone was admittedly second-hand as he did not personally visit the plant. On August 31, 1978, the Plaintiff visited Dr. Reaves at the request of Firestone. Dr. Reaves found the Plaintiff to be totally disabled as a result of his bronchitis which he attributed to Plaintiff’s smoking. He did not believe Plaintiffs condition was caused by conditions in the Firestone plant.

During trial of the case, Defendants called Dr. Mariencheck, a Memphis pulmonary specialist, who had never personally examined Plaintiff but who had studied his medical records. He testified that smoking would be the major cause of chronic bronchitis. He also testified that industrial exposure at the plant “could bring about either a temporary or permanent exacerbation.” He further testified that Plaintiff’s pulmonary functions were minimally abnormal which was common for individuals with a history of smoking.

After leaving the plant, Plaintiff allegedly began to take allergy shots and his condition improved. When he cut back on the medication, he began to suffer more difficulty with coughing. In 1981 he was admitted to St. Francis Hospital after complaining of coughing up blood.

On the basis of the evidence in this case, the trial judge concluded that Plaintiff’s condition was not caused by conditions at the plant but by Plaintiff’s history of smoking. She also concluded that the initial asthma was a pre-existing condition with the Plaintiff. There is abundant medical evidence to support these findings.

Although the Plaintiff did not initially plead aggravation of an existing condition, the trial judge allowed the Plaintiff to amend his complaint in order to conform the pleadings to the proof, several witnesses having testified regarding aggravation. The trial judge determined that the Plaintiff had a “pre-existing, non-work related condition consisting of bronchitis and asthma which was aggravated by conditions arising out of his employment with the defendant ..., and, as a result ... is now permanently and totally disabled.”

The general rule is that an employer takes an employee as he finds him or her and is liable under the Worker’s Compensation Act for disabilities which are the result of the activation or aggravation of a pre-ex-isting weakness, condition or disease brought about by the occupation. Lambert v. Travelers Insurance Co., 626 S.W.2d 265 (Tenn.1981); Brooks v. Gilman Paint Co., 208 Tenn. 595, 347 S.W.2d 665 (1961). However, there can be no recovery for aggravation of an occupational disease which preexisted the current employment. American Insurance Co. v. Ison, 519 S.W.2d 778 (Tenn.1975).

The case at bar does not fit precisely into either of these established rules of law. Plaintiff’s underlying condition, asthma and bronchitis, was not caused by his employment but it cannot be said to have arisen prior to employment with Defendant because Plaintiff worked for Defendant for almost 40 years. Therefore we believe that Defendant’s reliance on cases like Ison, swpra, is misplaced. Plaintiff’s condition did not predate his employment with Defendant.

We believe Plaintiff’s condition was developed during his employment with Firestone but that it did not arise out of or in the course of his employment. The medical experts who testified were unanimous in their diagnosis of smoking as the underlying cause of Mr. Arnold’s difficulty. That being the case, we believe that recovery ought to be available for aggravation of Plaintiff’s condition. In Stratton-Warren Hardware v. Parker, 557 S.W.2d 494 (Tenn.1977), we affirmed the trial court’s finding that dust and other work factors were causally related to Plaintiff’s emphysema and fibrosis, although chronic asthma and smoking would also contribute to the disease. Although in the case at bar the Plaintiff’s condition was not caused solely by his employment, that distinction is not dispositive of the case. The trial judge specifically found that his disability was due to an occupational disease arising out of and in the course of employment. There is material evidence to support that finding. Therefore we feel that the case at bar falls within the general rule of liability for aggravation as set out in Lambert, supra, and Gilman Paint Co., supra. Plaintiff worked for Firestone for forty years and during that time contracted asthma and bronchitis. The proof establishes, we believe, that his illness was aggravated by the dust that he breathed at the plant over those forty years and that this aggravated his condition. Since we feel that the trial judge properly applied the law in this case and because there' is material evidence to support the finding of aggravation, we must affirm the trial judge’s conclusion.

Defendant also maintains that Plaintiff’s condition was only temporary and that therefore the trial judge erred in awarding permanent disability benefits. This allegation is without merit. Defendant relies on the fact that after leaving Firestone and receiving medication the Plaintiff’s condition improved. That is what we would expect to find in an aggravation case. The dust was aggravating Plaintiff’s bronchitis so he left the plant. When the aggravation was no longer present, Plaintiff improved. This does not mean that Plaintiff was able to return to work at Firestone. In fact, medical experts so testified. We believe the trial judge was correct in finding the Plaintiff totally disabled.

We find that there is material evidence to support the findings of the trial judge. The judgment is accordingly affirmed, with costs on appeal taxed to the Defendants-Appellants.

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

      . For reasons this Court cannot understand, this case was tried together with the case of Robertson v. Firestone et al., which was also appealed to this Court. The Defendants were the same in both cases but few other similarities were present. The proof in each case was quite different. In our opinion the decision to try these cases together was most ill-advised. The trial judge's decision has made appellate review of each case unnecessarily complicated in that we have been forced to sort out piece by piece the proof that applies to each individual case.


author: FONES, Justice.

text:
    John TRAVIS, Appellee, v. The CITY OF MURFREESBORO, Tennessee, Appellant.
    Supreme Court of Tennessee, at Nashville.
    March 4, 1985.

      Patrick A. Ruth, Gracey, Maddin, Cowan & Bird, Nashville, for appellant.
    Alec Garland, Manchester, for appellee.
   OPINION

FONES, Justice.

This is a worker’s compensation case in which the defendant seeks post-judgment relief under T.R.C.P. 60.02(1). On March 31, 1982, an Agreed Order of Settlement was entered. Although defendant continued to contest the compensability of plaintiff’s alleged occupational disease, the order provided for a lump sum award of $29,000, which represented a final settlement of all disability benefits and all past and future medical expenses incurred in connection with the treatment of plaintiff’s alleged occupational illness. In addition, the settlement order provided that “the employer would continue to pay health insurance premiums on the plaintiff as long as permitted by law and until such time as the plaintiff qualifies for Medicare.”

On March 29, 1983, defendant filed a motion for relief from the judgment predicated upon the grounds of mistake, inadvertence, surprise or excusable neglect, T.R.C.P. 60.02(1), and “for any other reason justifying relief.” T.R.C.P. 60.02(5). The trial court, by an order dated May 18, 1983, set aside the settlement order on the grounds of mistake and impossibility of performance. The chancellor, however, on June 7, 1983, declared that the May 18 order was erroneously entered and was, therefore, null and void. On April 18,1984, the trial court sustained the original order of settlement, and on May 17, 1984, overruled defendant’s motion to reconsider, from which the City of Murfreesboro appealed to this Court pursuant to T.C.A. § 50-6-225(e).

In seeking Rule 60.02(1) relief, defendant asserts that the parties mistakenly believed that the City maintained a Blue Cross health insurance policy on plaintiff when, in actuality, no such coverage existed because the City was self-insured. Defendant contends that as a result of this “mistake,” the settlement agreement is impossible to perform, and relief from the judgment is warranted under T.R.C.P. 60.02(1).

As a prerequisite to the extraordinary relief available under Rule 60.02(1), the movant is required to set forth in a motion or petition, or in affidavits in support thereof, facts explaining why the mov-ant was justified in failing to avoid mistake, inadvertence, surprise or neglect. Hopkins v. Hopkins, 572 S.W.2d 639, 640 (Tenn.1978). In neither the motion for relief from the judgment nor the accompanying affidavits was an offer of proof made to show facts and circumstances that would justify the invocation of the extraordinary relief afforded by Rule 60.02(1). Defendant merely relates in general terms, without specifying when or how such “mistake” was discovered, that Blue Cross health insurance coverage which it believed existed at the time the settlement agreement was reached, was not in effect. Defendant, however, failed to explain why it, or its counsel, did not take simple precautionary measures to verify the existence of the purported Blue Cross coverage by consulting with appropriate persons within the framework of its own administrative system.

A motion for relief from a judgment pursuant to T.R.C.P. 60.02 is addressed to the sound discretion of the trial judge, Hopkins v. Hopkins, supra, and in reviewing a trial judge’s decision that such extraordinary relief was inappropriate, the scope of review is limited to whether the trial judge abused his discretion. John Barb, Inc. v. Underwriters at Lloyd’s of London, 653 S.W.2d 422, 424 (Tenn.App.1983). The chancellor considered the arguments of counsel on the insurance issue, taking into account the affidavits submitted in support and the entire record (which is not presently before this Court), and found that the settlement agreement was not impossible to perform, and, therefore, that Rule 60.02(1) relief was not merited under the circumstances. Because no abuse of discretion by the trial judge in overruling defendant’s motion for relief from the judgment has been demonstrated, the judgment of the trial court is affirmed. Costs are assessed against the City of Mur-freesboro.

COOPER, C.J., and BROCK, HARBI-SON and DROWOTA, JJ., concur.


author: COOPER, Chief Justice. DROWOTA, Justice,

text:
    BROADMOOR-KINGSPORT APARTMENTS, INC., and Broadmoor-Kingsport Associates, Appellees, v. STATE of Tennessee and John K. King, Commissioner of Revenue, Appellants.
    Supreme Court of Tennessee, at Knoxville.
    March 4, 1985.

      Charles L. Lewis, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. & Reporter, Nashville, for appellants.
    William T. Gamble, Daryl J. Brand, Wilson, Worley, Gamble, & Ward, P.C., Kings-port, for appellees.
   OPINION

COOPER, Chief Justice.

This action was instituted by Broadmoor-Kingsport Apartments, Inc. (BKAI) to recover $19,810.00 in corporate franchise taxes, penalty and interest assessed by the Tennessee Department of Revenue for 1975, 1976 and 1977, and paid under protest. BKAI contended that it had not been doing business in Tennessee within the meaning of T.C.A. § 67-2902 (now § 67-4-903(a)), and, in the alternative, that no tax was owed under T.C.A. § 67-2908 (now § 67-4-906(a)), since it had neither owned or used property of value in Tennessee. On considering the facts stipulated and the applicable statutes and authorities, the Chancellor found that BKAI did business in Tennessee during the tax years in question and was thus subject to pay the franchise tax. The Chancellor also found that BKAI did not own or use any property of value in Tennessee during the tax years, and that its tax liability was limited to the minimum tax of $10.00 in each tax year. The Chancellor then ordered a refund of the taxes paid under protest.

Two issues are presented to us on appeal. Did BKAI do business in Tennessee during the tax years in question? If so, should the value of the Kingsport apartment complex, to which appellee held record title, be included in the franchise tax base? The Commissioner included the value of the apartment complex in the tax base in making the assessment that resulted in this court action.

In 1973, a group of investors sought to acquire and develop an apartment complex in Kingsport, Tennessee. These investors formed Broadmoor-Kingsport Associates (BKA), a limited partnership, to be the ultimate record owner of the property, but they realized, as the parties have stipulated, “that because of the restrictions of usury statutes of various states the development might require or make desirable the interim use of other legal entities.” Thus the taxpayer, Broadmoor Kingsport Apartments, Inc. (BKAI), was chartered in Missouri in December of 1974. It qualified to do business in Tennessee shortly thereafter. Title to the apartment complex and land was transferred to BKAI, and a Nominee and Agency agreement was entered into by BKA and BKAI. This agreement provided that BKAI

agrees to acquire and hold record title to Property as nominee on behalf of and for convenience of Principal [BKA], and to borrow sums from time to time for construction of improvements of the Property as nominee on behalf of and for convenience of Principal (and in borrowing such sums to execute such notes, deeds of trust, deeds of release, building loan agreements, construction and disbursing escrow agreements, security agreements, and such other documents as directed by Principal).

BKAI also agreed to execute leases at BKA’s direction, and to convey the property to BKA on demand. BKAI was paid $500.00 for its services, and was to receive $10.00 for each executed lease.

In 1975, BKAI executed a deed of trust securing a promissory note to First National Bank in St. Louis in the amount of $125,600.00. In 1976, BKAI closed a permanent loan on the property with the First National Bank of Memphis for the amount of $8,965,600.00. In doing so, BKAI executed numerous documents, including a promissory note, a deed of trust, an assignment of rents and leases, a UCC financing statement, and a security agreement. The loan proceeds were disbursed by BKAI on direction of BKA. While no portion of the loan proceeds went to the benefit of BKAI, it was paid a fee for its services. On December 30, 1978, BKAI released and quitclaimed to BKA its record title to the land and apartments. BKAI had no other business in Tennessee or elsewhere.

T.C.A. § 67-4-903(a) provides that “[a]ll corporations ... organized for profit under the laws of this state or any other state or country and doing business in Tennessee ... shall ... pay to the commissioner of revenue, annually a privilege tax ....” The privilege tax is imposed at a rate of fifteen cents per $100.00 of the issued and outstanding stock, surplus and undivided profits of the corporation as shown by the last fiscal year’s books and records. T.C.A. § 67-4-904(a). In no case, however, is the measure of the tax imposed to be less than “the actual value of the property owned, or property used, in Tennessee.” T.C.A. § 67-4-906(a).

The Tennessee franchise and excise taxes are taxes on the privilege of doing business in Tennessee in corporate form. Navarre Corporation v. Tidwell, 524 S.W.2d 647 (Tenn.1975). They are not placed upon a particular corporate business or transaction, but upon the privilege of doing business as a corporation and exercising corporate powers for the purpose of producing a profit. Nashville & Decatur R. Co. v. Atkins, 489 S.W.2d 837, 840 (Tenn.1973) (quoting Memphis Dock & Forwarding Co. v. Fort, 170 Tenn. 109, 92 S.W.2d 408 (1936)). The term “doing business” is not uniformly defined in the cases, and its meaning will vary dependent on the situation. For example, different factors and considerations are applicable when the concern is whether a corporation is amenable to service of process, rather than when franchise and excise taxes are at issue. Tidwell v. Gaines Manufacturing Co., 526 S.W.2d 460 (Tenn.1975). The inquiry into whether a corporation is doing business involves a qualitative and quantitative analysis of the corporation’s activities, and the mere filing of a corporate charter in Tennessee is insufficient. Cook Export Corp. v. King, 617 S.W.2d 879 (Tenn.1981). The protesting corporate taxpayer in Cook Export was held to have been doing business in Tennessee when it paid no franchise or excise taxes to any state, executed all of its contracts in Tennessee, and its director’s and management decisions were made in Tennessee. The Court stated:

In our opinion the making of substantial contracts involving the receipt and disbursement of millions of dollars, the keeping of books and records and the complicated accountings incident to these contracts, the payment of corporate dividends, banking, the purchase and handling of accounts, and the management of corporate affairs constitute ‘doing business’ within the purview of the Tennessee corporate franchise and excise tax laws. 617 S.W.2d at 881.

BKAI qualified to do business in Tennessee. It held record title to 28.35 acres of valuable land and improvements. It took part in arrangements to finance development of the apartment complex in both 1975 and 1976. The many documents executed for the 1976 loan from the First National Bank of Memphis, previously noted, were recorded in Tennessee and were controlled by Tennessee law. All of BKAI’s significant activities were in Tennessee, and it was paid at least $500.00 for its activities in Tennessee on behalf of BKA. These activities, in our opinion, constitute “doing business” in Tennessee for the purpose of the Tennessee franchise and excise tax.

BKAI insists that even if it did business in Tennessee so as to subject it to the Tennessee franchise tax, the Commissioner erroneously included the value of the Kingsport apartment complex in the tax base, since BKAI did not own or use the property during the tax years in question.

The reason for BKAI’s existence and its holding of title was to avoid usury statutes of various states, including Tennessee, in the securing of loans needed to develop the apartment complex. As record title holder, BKAI participated in all financing arrangements and disbursed all proceeds from loans secured by the property. This was its sole business. In our opinion, the holding of record title to the property by BKAI and its activities with respect to the property during the tax years in question is such ownership of property of value in Tennessee as to support a franchise tax assessment against BKAI based on the value of the Kingsport apartment complex. It would be untenable to permit a party to take advantage of the corporate form to hold title to property and to conduct business with respect to that property and then permit the party to disavow the corporate ownership when it becomes disadvantageous. See Cook Export Corp. v. King, 617 S.W.2d 879, 881 (Tenn.1981).

The judgment entered in the trial court is reversed, and the cause is dismissed. Costs of the cause will be paid by the appellees.

FONES, BROCK and HARBISON, JJ., concur.

DROWOTA, J., dissents.

DROWOTA, Justice,

dissenting.

For the reasons set out in my dissenting opinion in Cook Export Corp. v. King, 617 S.W.2d 879, 882-885 (Tenn.1981), I would hold that BKAI is not subject to Tennessee’s franchise tax during the years in question because it was not a corporation “doing businesss” in the State of Tennessee within the meaning of the Franchise Tax Law.

T.C.A. § 67-4-903(a) (formerly T.C.A. § 67-2902) provides that franchise taxes must be paid by all corporations “organized for profit under the laws of this state or any other state or country and doing business in Tennessee .... ” During the tax years in question, BKAI’s activities in Tennessee were limited to (1) holding record title to property and (2) closing a permanent loan on the property, for the benefit and as agent and nominee of BKA, with none of the loan proceeds benefiting BKAI. These activities are insufficient to constitute “doing business” for franchise tax purposes.


author: COOPER, Chief Justice.

text:
    Jake B. ADAMS, Appellant, v. Charles ROARK, d/b/a Cherokee Dragway, and Cherokee Dragway, Inc., Appellees.
    Supreme Court of Tennessee, at Knoxville.
    March 4, 1985.

      Jim W. Stambaugh, Kenneth E. Douthat, Stambaugh and Associates, Morristown, for appellant.
    David W. Blankenship, Kingsport, for ap-pellees.
   OPINION

COOPER, Chief Justice.

Permission to appeal was granted to review the action of the Court of Appeals in affirming a summary judgment order, which dismissed plaintiff’s suit for damages for personal injuries allegedly due to the negligence of the defendant in the operation of a motorcycle dragway. The Court of Appeals held that plaintiff had signed a release and waiver which freed the defendant from liability. Plaintiff argues that he did not read the release and thought he was registering for a race; that he had no knowledge of the specific risk that caused his injuries and could not have assumed such risk; and that the defendant was guilty of gross negligence for which liability cannot be contracted away. We hold that there is a disputed factual issue as to whether defendant was guilty of gross negligence, and we reverse and remand.

Plaintiff, Jake B. Adams, was seriously injured while racing at Cherokee Dragway when he lost control of his motorcycle and struck a steel photo-electric cell reflector located near the finish line. The reflector was used to determine which driver won a race by being first to break the beam of light reflected off the device. It was one foot by eight inches at the base, and a one-fourth inch thick piece of metal extended eighteen inches into the air.

Adams brought suit against Charles Roark, doing business as Cherokee Drag-way and Cherokee Dragway, Incorporated. He alleged that the photo-electric cell reflector should have been constructed of plastic or some other non-rigid material as a safety precaution “because of the known dangers by the operators of the tracks that as motorcycles hit their maximum speed, that they are liable to be slightly out of control.”

Defendants moved for summary judgment on the ground that they owed no duty to Adams based on the signed release and waiver. In response, Adams filed his own affidavit and those of nine other experienced motorcycle racers. The affidavits stated, generally, that the racers did not know that steel reflectors were in use, that the device was unique and dangerous, and that they would not have raced had they known of this danger. The Circuit Court for Hawkins County granted the motion for summary judgment.

The document signed by Adams was entitled “RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT.” The top half of the document contained the provisions of the release and waiver and stated, in part, that the undersigned

1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the ... track operator, track owner, ... from all liability ... for any and all loss or damage and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise....
2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees ... from any loss, liability, damage, or cost they may incur due to the presence of the undersigned ... whether caused by the negligence of the releasees or otherwise.
3.HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise ....

In addition, the document stated that each signator acknowledged the dangerousness of the event and the risk of serious injury or death.

The bottom half of the release and waiver consisted of two columns of lines with spaces for signatures. Embossed in red upon each space, and beneath the signature of Jake Adams, was the statement “I HAVE READ THIS RELEASE.”

Plaintiff does not deny signing the document, but takes the position it is not binding since he did not read it prior to signing and did not know it was a release from liability; that he thought he “was just registering to race and leaving the track something to keep up with the season points race.”

In this state, parties may contract so as to release one of the parties from liability for damages resulting from his negligence. See Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn.1973); Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960). See also T.C.A. § 55-22-105 wherein “[t]he practice of participants in motor racing events of releasing the promoters thereof from liability and of assuming liability for any injuries sustained is hereby expressly approved.” The failure of a party to read a release and waiver before signing, in the absence of fraud or duress, does not affect its validity. Dixon v. Manier, 545 S.W.2d 948, 949 (Tenn.App.1976).

While the case law and announced public policy of Tennessee favors freedom to contract against liability for negligence, Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840, 844 (1963), it does not favor contracting against liability for gross negligence, and such an agreement is unenforceable. Restatement, Contracts 2d § 195, p. 65 (1981); 15 Williston on Contracts, § 1750A, p. 141 (3d ed.1972); 6A Corbin on Contracts § 1472, p. 596-97 (1962). In Memphis and Charleston Railroad Co. v. Jones, 39 Tenn. 517 (1859), the railroad argued on appeal that the jury should not have been instructed that a contractual provision absolving the railroad of liability for any accident would not apply if gross negligence was found. The court upheld the instruction and stated that

It would be most absurd to suppose, that it was the intention and understanding of the parties that the company should be protected from liability ... against injury or loss occasioned by the wilful wrong, or gross negligence, of the company itself, or its agents!

The release in this case, then, would be effective to relieve the defendants of the consequences of their actions, unless the actions amounted to gross negligence.

The question of whether gross negligence is a true issue in a case is to be determined from the facts alleged in the complaint. See generally, Shew v. Bailey, 37 Tenn.App. 40, 260 S.W.2d 362, 366 (1951). In this case, the plaintiff charged that the photo-electric reflector should have been made of plastic or some other resilient material due to the “known dangers by the operators of the track” that a motorcycle may be slightly out of control when it approaches the reflector. The affidavits of Adams and the nine other drivers filed in response to defendants’ motion for summary judgment support the view that the metal reflector was dangerous, that striking a reflector in the course of a race was not uncommon, that the drivers were not told that a steel reflector was in use and were not allowed to inspect it, and that they would not have raced on defendants’ track had they known of the use of a metal reflector.

The allegations of the complaint, viewed most favorably to plaintiff, are sufficient in our opinion to charge a reckless disregard by the defendants for the drivers’ safety. We are further of the opinion that the affidavits filed in support of the allegations create a genuine issue of fact as to whether defendants’ actions amounted to gross negligence so as to negate the effect of the release and waiver. It follows that a summary judgment should not have been granted in this case. See Brookins v. The Round Table, Inc., 624 S.W.2d 547, (Tenn.1981).

The judgment of the trial court, as 'affirmed by the Court of Appeals, is reversed and the cause is remanded for trial. Costs incident to the appeal will be paid by the defendants.

FONES, BROCK, HARBISON, and DROWOTA, JJ., concur.