author: CLARK, Presiding Judge.

text:
    Marion A. LOVE and Wilma Love, Plaintiffs/Appellants, v. DEERE AND COMPANY, John Deere Company, and Louisiana Farm Supply Company, Inc., Defendants/Respondents.
    No. WD 35063.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.

      Fred Wilkins, Stephen B. Millin, Jr., Wilkins & Millin, P.C., Kansas City, for plaintiffs/appellants.
    Thomas J. Wheatley, Daniel M. Dibble, Thomas S. Stewart, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, for Deere & Co.
    Darwin E. Johnson, Linde, Thomson, Fairchild & Langworthy, Kansas City, for Louisiana Farm.
    Before CLARK, P.J., and PRITCHARD and LOWENSTEIN, JJ.
   CLARK, Presiding Judge.

After plaintiffs, Marion and Wilma Love, had verdicts from a jury for actual and punitive damages aggregating $550,000, the trial judge ordered a new trial on the ground that the evidence had not warranted submission of a claim for punitive damages and the resultant verdicts had been so infected by the error that deletion of the punitive award could not expunge the prejudice to defendants. The appeal is from the new trial order. Affirmed.

Some clarification of issue formulation in terms of procedure in the case is appropriate at the outset of this opinion to set the contestants in their adversary roles. The defendants at trial, respondents here, filed their customary motions after verdict seeking, in the alternative, judgment in their favor in accordance with motions for directed verdicts at the close of the evidence or, a new trial. The latter relief was granted which, of necessity, effected a denial of respondents’ motions for judgment n.o.v. That inferred ruling is not before this court in the form of an appeal by respondents. We are, however, obliged to confront the question of whether appellants made a submissible case and whether the ruling on respondents’ motions for judgment was correct. The following authorities demonstrate the entitlement of a successful new trial movant to challenge plaintiffs’ case even though plaintiff is before the appellate court as appellant.

A recent case on the subject is Mrad v. Missouri Edison Co., 649 S.W.2d 936 (Mo.App.1983). There, an appeal from the denial of defendant’s motion for judgment n.o.v. had been dismissed and the case was before the court on appeal from the new trial order. Respondent charged in brief and argument that plaintiff had made no case at trial. The opinion held that dismissal of defendants’ appeal did not foreclose a challenge to the submissibility of the case. Where the record shows plaintiff cannot recover under the law and evidence, another trial is to be spared by entry of directed judgment. Mrad at p. 942. To like effect, see State ex rel. Mather v. Carnes, 551 S.W.2d 272 (Mo.App.1977). Of course, this entitlement of a respondent to proceed in the role of an appellant as to the issue of submissibility is conditioned upon preservation of the point through motions presented during trial and after verdict. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918 (Mo.1959).

Here, respondents argue that appellants did not make a submissible case of liability because (a) there was no evidence of causative effect between the product defect and the injury, (b) the product had been materially altered after its manufacture, and (c) the product was not being operated at the time of the accident in a manner reasonably to be anticipated by respondents. These contentions lead now to a summary of the facts of the accident in which appellant Marion Love suffered the loss of his right hand.

On October 11, 1979, harvesting of soybeans on land rented by Love was in progress. During the day, the work was done by Jack Hobbs using a combine owned by him, purchased from Louisiana Farm Supply Co. Inc., manufactured by Deere and Company and distributed by John Deere Co., all respondents in this case. That evening, Love, who had engaged in other work during the day, undertook to continue the harvest with Hobbs’ combine. Some clogging of the combine feederhouse occurred and Love removed the material by hand. In this process, the combining function of the machine was shutdown, as was Hobbs’ practice, so that no moving parts were operative in that area of the equipment. The engine continued to run, however, as did the belts and sheaves of the ground drive. This maneuver was successfully and uneventfully accomplished.

At about 10:00 p.m., a second clogging occurred. Because of the lateness of the hour, Love decided to cease work. He first shut off the combining function, dismounted from the cab and walked to the left side of the machine heading for the ladder intending to shut off the engine and the lights. This was the opposite side of the combine from that where the inspection port of the feederhouse for cleanout was located. As Love walked along the uneven ground, he stumbled falling toward the machine where his hand became entangled in the moving machinery. There were no other witnesses to the occurrence. Love managed to make his way to his brother’s house from which he was taken to the hospital for medical treatment lasting some 28 days. Total medical bills incurred amounted to $26,079.39.

SUBMISSIBILITY OF THE CLAIM

Plaintiffs’ cause against the manufacturer, distributor and retailer of the combine was based on the Restatement (Second) of Torts § 402 A (1965) theory of products liability and was submitted to the jury under MAI No. 25.04 (2nd Ed.). In particular, the manufacturing and design defect associated with Love’s injury was the unguarded area of belts and pulleys to the left side of the combine and into which Love’s hand became entangled. Some further explanation of how the area stood unguarded is necessary to understand the theory of the case.

As the combine was originally manufactured and sold to Hobbs new in 1976, the area in question was guarded by a “banana” shield, so named for its shape. When Love sustained his injury, the shield was not on the combine. Unknown to Love or Hobbs, the shield had apparently fallen off earlier that day because it was later found in the field where Hobbs had been working the combine. This was not the first time Hobbs had experienced difficulty with the shield. At an earlier date, the bolts which attached the shield had broken in the block requiring center drilling to remove the bolt ends. Hobbs reattached the shield by drilling new holes and supplying other bolts. Although the shield itself had fractured toward the rear of the combine at or before the shearing of the attachment bolts, the shield did remain attached with the new bolts Hobbs provided until the detachment which evidently occurred October 11, 1979.

According to plaintiffs' expert witness Gibson, the banana shield fractured as a result of sympathetic vibration with the belt and pulley mechanism to which it was attached. The shield itself was of flexible material and the vibration flexure alternately put one area of the shield in tension and the other in compression. Material fatigue and ultimate fracture were the consequence. The cyclical vibrations in effect produced inevitable self-destruction.

Respondents first argue that plaintiffs made no case of defective design of the shield because there was no proof the injury would have occurred if the shield had been in place at the time of the accident. This contention assumes plaintiffs’ complaint to have been that the design of the shield was inadequate to guard the machinery it covered. As ultimately presented to the jury, however, the case dealt not at all with the guarding properties of the shield in place. The defect upon which plaintiffs relied was the design which failed to account for the flexion fatigue and the ultimate disconnection of the shield. It is correct that evidence of other possible shield configurations was introduced but that evidence, as later described in this opinion, went to show superior attachment methods and the knowledge by respondents of shield failure and the hazards presented. The adequacy of the banana shield to guard the machinery when in its original configuration was irrelevant to plaintiffs’ case and, in fact, was a subject expressly withdrawn from the jury’s consideration. For purposes of the claim, the assumption may be indulged, without detracting at all from the plaintiffs’ substantive burden of proof, that the shield would have protected Love from injury had it remained attached to the combine.

In sum, the evidence was sufficient to show that the shield designed and intended to guard the belts and pulleys fell off the Model 4400 Deere Combine due to fatigue failure resulting from a design defect existing at the time of manufacture of the combine. As a consequence, when Love fell toward the machine, nothing protected him from the dangerous moving parts.

Respondents next assert that they suffer no liability exposure because of Hobbs' action in reattaching the shield after it fractured and fell from the combine the first time. They argue that Hobbs’ reattachment efforts were inadequate to secure the shield properly, that the shield fell for the last time, not because of the design defect, but because of amateur, home workshop repair, and that Hobbs’ reattachment was an intervening cause relieving respondents of any liability flowing from the original failure. In effect, what respondents contend is that if Hobbs had brought the combine in for or had procured adequate reattachment of the shield, it would have been in place on October 11, 1979.

The subject of proximate causation by intervening events and circumstances was exhaustively treated in the recent case of Clary v. United Telephone Co., 670 S.W.2d 936 (Mo.App.1984) from which we borrow the following extracts. Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading to the injury. An intervening resulting cause is a new and independent force which so interrupts the chain of events initiated by defendant’s negligence as to become the responsible, direct, proximate cause of the injury. The first cause becomes the remote cause and the intervening cause the proximate cause only when the chain of events is so broken that the result is no longer the natural and probable consequence of the primary cause or one which ought to have been anticipated.

In the present case, the banana shield first fell from the combine, according to plaintiffs’ evidence, because the design and placement of the shield subjected it to stress and fracture. Love’s injury was attributable to the original insecure attachment of the shield which was the consequence of respondents’ faulty design. Once the shield first separated from the combine, the safety function was lost and the exposure of users to the hazard commenced. The temporary repair by Hobbs played no part in Love’s injury because the belts and pulleys were exposed and unguarded when the shield first broke and fell and in like manner when Love sustained the injury. The unsuccessful reattachment of the shield by Hobbs did not interrupt the chain of events caused originally by the product defect and, thus, could not be an event of intervening proximate causation.

Despite the foregoing, even were it to be argued that in some way Hobbs’ repair enhanced the likelihood that the shield would fail, the evidence as to that work as well as plaintiffs’ evidence of the original product defect was all presented to the jury. In such a situation, the issue of proximate cause and intervening efficient cause is for the jury to decide. Clary v. United Telephone Co., supra.

Respondents next contend plaintiffs’ case did not meet the requirements of § 402 A in that the Hobbs’ repair to the shield with improper bolts materially altered the machine and when used thereafter with the reattached shield and without recourse to factory or dealer service, the operation was in a manner not reasonably to be anticipated by respondents. The argument seems to be that once the failure of the shield became manifest, it was the obligation of the user to seek competent repair service or replacement.

As to material alteration of the machine, the contention is without any support on the facts. When the shield first failed as a result of component fatigue, the attachment bolts on the outside of the shield sheered off in the block leaving the shield hanging by a round eye cable bolt. The fracture point on the shield was toward the rear of the combine, the broken bolts were at the front. At that point, the shield was useless. Hobbs’ repair, although temporary as later events demonstrated, did not render the combine more dangerous but safer as compared to the condition which existed immediately before the repair. Neither the original attachment of the shield at the time of manufacture nor the attachment substitute improvised by Hobbs eliminated the potential danger and thus there was no material alteration because the same unsafe condition persisted throughout.

The claim of unanticipated use, that is, use of the machine with the shield insecurely reattached, is equally insubstantial. When Love’s accident happened, the machine was in use for its designed purpose to combine crops. There is nothing unforeseeable about the continued use of the combine after failure of the shield. In fact, the evidence showed that respondent was aware farmers would not interrupt their work because a guard shield became detached, but were more likely to postpone repair of a component which did not directly serve the combining function.

The case relied on by respondents, Baker v. International Harvester Co., 660 S.W.2d 21 (Mo.App.1983), presented an entirely different fact situation. There, the victim was riding on the ladder of the combine to hunt game while the combine was in motion. The operator was unaware of the hunter’s presence until the accident occurred. That use of the combine as a hunting vehicle was determined not to be foreseeable or reasonably to be anticipated by the manufacturer and disqualified the claim from submission on a products liability theory. There was no such deviate use here, but rather the precise use for which the machine had been constructed.

Considering the evidence here in the light most favorable to plaintiffs and giving them the benefit of reasonable inferences, Buckner v. Pillsbury Co., 661 S.W.2d 626 (Mo.App.1983), a submissible case was made.

THE AWARD OF A NEW TRIAL

As was noted earlier in this opinion, the propriety of the order granting a new trial turns on the issue of whether it was error to admit evidence and argument on, and to submit to the jury the question of, punitive damages. The proof tendered in support of the claim to punitive damages consisted of evidence obtained from respondents’ files in discovery. Particularly relevant was an intra-company communication written in February, 1973 and identified as the “Barquist Memo.” The gist of the claim was that the evidence as a whole demonstrated Deere’s awareness of the failure propensities of the banana shield as early as 1973 but, with indifference to and conscious disregard for the safety of combine users, respondents continued to manufacture and distribute the defective product through 1975 when the Hobbs combine was purchased.

The trial judge decided after verdict that there had been no substantial or persuasive evidence supporting a claim for punitive damages, but he did not elaborate on the basis for that decision. On well recognized authority, however, we are obligated to affirm the decision if sustainable on any ground in the record. Linkogel v. Baker Protective Services, Inc., 626 S.W.2d 380 (Mo.App.1981).

Evidence as to the production, testing and modification by Deere of the various combine shield parts is voluminous and somewhat confusing, particularly from a cold record. Some details, however, appear without dispute. The banana shield design and structure referred to in the Barquist Memo was in production in 1973 and was identified as part number AH79310. The failure rate of that shield, acknowledged by Deere personnel to be unacceptable, was recognized as early as 1973. Apparently some combines were continued to be produced and sold with the defective shield even after Deere was aware of the hazard to users. The Hobbs combine was not one of those machines. It was manufactured in 1976 and the banana shield with which it was equipped bore part number AH89654. The evidence was that shield AH89654 was used only in the production years 1975 and 1976 and, according to Deere’s warranty claim records, only 10 shields failed on the 7,000 model 4400 combines produced in those years. This failure rate was a marked improvement over the failure rate for the earlier AH79310 shield.

Evidence also was introduced showing testing by Deere of various shield designs after the Barquist Memo, but little if any proof as to tangible accomplishments. An experimental shield, identified as AQ273-6139C was designed but it was found to be less satisfactory than the original shield. Attempts to reinforce the shield only resulted in moving the fracture point to a different area. On the one hand, it is clear that after the shield problem came to the attention of respondents and was recognizable as a safety hazard, corrective efforts were undertaken. On the other, however, plaintiffs’ evidence demonstrated that the shield on the Hobbs combine was basically the same flawed design as had been noted in the Barquist Memo, notwithstanding change in the part number and the intervening modifications.

The difficulty with plaintiffs’ proof as to punitive damages was that it relied on documentation of actual knowledge by Deere that shield AH79310 was defective, but that was not the identified shield on the Hobbs combine. It is one thing to prove by expert evidence, as plaintiff did, that the two shields were basically the same and equally prone to failure, but it is quite another matter to show indifference and conscious disregard by Deere in the face of uncontroverted proof that the subsequent shield was introduced into production after added design consideration and tests.

To sustain the punitive damage claim, it was necessary for plaintiffs to adduce evidence that respondents knew at the time the Hobbs combine was sold that the modifications to reinforce the shield had been ineffective and that the combine was defective and dangerous because of potential shield failure. To the contrary, the evidence was that the two shields were distinguishable in that the later shield was a modified product. If plaintiffs are to muster a punitive damage claim on retrial they will be obliged to prove not only the absence of any substantial change in the shield with which the Hobbs combine was equipped, but actual knowledge by Deere of a persisting design flaw surviving the modification efforts and a decision to continue production into the 1976 model year notwithstanding the defect. For want of this latter element, plaintiffs made no case for punitive damages in this trial.

As to the relief granted by way of a new trial, the trial judge was particularly emphatic in expressing his opinion that the award for actual damages was irreparably affected by the argument and submission as to punitive damages. We are inclined to agree, although the amount of the award in actual damages, $100,000, can scarcely be labeled excessive considering the extent of injury. In any event, plaintiffs present no argument for reinstatement of the actual damage award as sole recovery, but continue to claim entitlement to punitive damages. The new trial order must therefore stand.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James G. HEVERLY, Appellant, v. William R. DOHERTY, M.D., et al., Respondents.
    No. WD 35155.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.
    William Lopez, Kansas City, for appellant.
    B.W. Jacob, Bagby, Jacob & Iliff, Kansas City, for respondents.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   ORDER

PER CURIAM.

Appeal from order sustaining motion for summary judgment.

Judgment affirmed. Rule 84.16(b).

All concur.


author: CLARK, Judge.

text:
    Roger J. DENNY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35639.
    Missouri Court of Appeals, Western District.
    Jan. 2, 1985.
    Lew A. Kollias, Jefferson City, for appellant.
    John Ashcroft, Asst. Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   CLARK, Judge.

Roger Denny was jury tried and convicted January 8, 1981 of the offense of offering violence to a corrections officer. On November 29, 1982, he filed a pro se motion for post-conviction relief under Rule 27.26. The trial court dismissed the case January 17, 1983 without appointing counsel for petitioner, without a hearing and, so far as the record on appeal disclosed, without notice to Denny. This appeal, filed out of time upon leave granted by this court, is from the dismissal order.

Drawing upon copies of correspondence in the legal file as the principal source of information as to what occurred in this case, it appears that when Denny filed his Rule 27.26 motion, he was in custody at the Missouri Penitentiary. Thereafter, on December 15, 1982, he was transferred to the Kentucky Department of Corrections under authority of Article IV (a) Interstate Corrections Compact, § 217.535, RSMo. Supp.1982. The latter authorizes such transfers when deemed by the sending state to be in the best interests of the inmate. While in Kentucky, Denny was in custody under the Missouri sentence imposed for the January, 1981 conviction.

The trial court had originally set Denny’s motion for hearing on December 20, 1982. That hearing did not take place, apparently because Denny was then in Kentucky pursuant to the custodial transfer. On January 17, 1982, the trial court entered the dismissal order which is the subject of this appeal. The docket entry reads: “Case dismissed for reasons set forth in letter. Case dismissed.” The parties are in agreement that the letter referred to in the entry was a letter from the Missouri penitentiary records office to the prosecuting attorney dated December 21, 1982 advising of Denny’s transfer to the Kentucky institution.

The trial court made no findings of fact, beyond the reference to the letter as noted, and set out no conclusions of law. The parties assume and the state seeks to sustain the dismissal of the action on the ground that Denny was not entitled to a hearing and the trial court was without jurisdiction to act with respect to the judgment of conviction when the 27.26 movant is in custody in another jurisdiction. It is therefore assumed that Denny’s custodial status in Kentucky was the basis for the court’s order dismissing the case.

Appellant asserts that the dismissal of his rule 27.26 motion should be set aside, first because the trial court erred in not appointing counsel for appellant when the motion was filed, second because the summary dismissal was not accompanied by a statement of reasons for the dismissal and, third because the apparent basis for the dismissal, the absence of appellant from custodial detention in Missouri, was not a ground to deny appellant a hearing. All three points are valid claims of error. We will address only the last, however, on the assumption that the first two errors will be remedied upon remand and disposition of the proceeding on the merits.

It is first appropriate to note that this case is distinguishable from cases in which the inmate under sentence in Missouri is in custody in a foreign state or is in federal custody pursuant to a sentence imposed by the foreign state or by federal authority. Where a Missouri prisoner is being held in another state by reason of a transfer pursuant to Article IY(a) of the Interstate Corrections Compact, the receiving state acts as custodian in the capacity of agent for the sending state and the inmate is at all times subject to the jurisdiction of the sending state. Article IV, Subsection (c). Denny was therefore in custody in Kentucky under the Missouri sentence and remained subject to Missouri jurisdiction.

The state argues that authority for the trial court’s dismissal order is found in Lalla v. State, 463 S.W.2d 797 (Mo.1971). It may well be that the trial court relied on that case as well, although the absence of findings leaves the basis for the ruling uncertain. At least it is clear from the court’s docket entry that the report of appellant’s transfer to Kentucky prompted the dismissal order. The question is whether appellant was entitled to maintain his Rule 27.26 motion and to appointment of counsel and a hearing notwithstanding his transfer by the Missouri Department of Corrections to Kentucky.

In Lalla, the movant under Rule 27.26 had been convicted and sentenced under a federal offense prosecution. A detainer was lodged against him and he was returned to Missouri where he was tried and convicted of the Missouri offense. Lalla was then returned to complete service of the federal sentence. He was in federal custody when he filed his proceeding under Rule 27.26 for post-conviction relief. The court there held that the terms “in custody under sentence” as used in Rule 27.26 means actual custody in Missouri under a Missouri sentence. Where the defendant is confined elsewhere, and is not serving a sentence under a Missouri judgment, the defendant is not entitled to the hearing provided for post-conviction relief under the rule.

Cases which have followed Lalla have all involved situations in which the movant was confined outside Missouri under the judgment and sentence of a foreign state. The Lalla rationale is not applicable to this case because appellant has at all times been in custody under the Missouri sentence with his place of confinement determined by the Missouri Department of Corrections. Indeed, when appellant filed his motion, he was in Missouri, the transfer to Kentucky being some two weeks later.

Under the provisions of the Interstate Corrections Compact, a transferred prisoner remains in the constructive custody of the sending state which does not release jurisdiction by virtue of the transfer. The receiving state merely acts as a custodial agent of the sending state and must return the inmate at any time the sending state elects to reincarcerate the inmate in one of its institutions. Moreover, Article IV, subsection (e) of the compact expressly provides that no inmate is deprived, by reason of the transfer, of any legal rights he would have had were he to have remained in an institution in the sending state.

The inapplicability of the Lalla analysis to the case of a transferred inmate such as appellant is self evident because the consequence is to completely thwart the availability of Rule 27.26 procedure to such prisoners. Transfers under the compact to other states are accomplished on the initiative of the Department of Corrections which determines which inmates are subject to transfer and when. Irrespective of any punitive or retaliatory motivation, if a Missouri prisoner must be physically present in Missouri to have access to Rule 27.26 relief, the Department of Corrections could, as was done in appellant’s case, cause a discontinuance of a Rule 27.26 action by merely sending the movant out of the state. Assuming arrangements were available with the receiving state or states, a Missouri inmate could be repeatedly denied his Rule 27.26 motion hearing by successive transfers or, the proceeding could be permanently made unavailable by continuing the inmate’s detention in the foreign state. The inmate could, under such hypotheses, conceivably serve his full Missouri sentence and never have a Rule 27.26 motion considered.

The parties have not cited and independent research has disclosed no Missouri case dealing with the rights of a prisoner transferred to another state under the compact for service of a Missouri sentence imposed for a conviction had in Missouri. On the basis of the foregoing analysis, however, we conclude that a prisoner such as appellant who is serving a Missouri sentence under custody in a foreign state occupies no different position with respect to Rule 27.26 remedies than a similarly sentenced inmate serving time in a Missouri institution. Appellant was entitled to appointment of counsel and to other proceedings under the rule and it was error for the trial court to dismiss the case summarily.

The state has also suggested that the rule of Lalla is a practical solution because of the risk of violence and escape associated with transporting a prisoner from a foreign state to provide the Rule 27.26 hearing and that the inmate’s rights under the rule are not denied, merely postponed. As to appellant, the briefs of the parties parenthetically note, dehors the record, that appellant is currently confined in the Missouri penitentiary in Jefferson City. If that be so, then appellant could, as the state suggests, accomplish the same result by filing a renewed motion with the trial court.

That alternative begs the question of this appeal, that is, whether appellant was entitled to adjudication of his original motion on the merits and whether the issue is one capable of repetition and deserving of review. The prospect is that other cases similar to appellant’s will arise and the issue should be settled. In addition, there is no assurance that appellant will be continued in custody in Missouri. A second Rule 27.26 motion could be again frustrated by another transfer of appellant under the compact. For these reasons, we deem the appeal not to have been mooted by the return of appellant to Missouri, if that be the fact.

In discussing the subject of this appeal, no consideration has been given to the merits of appellant’s claim to relief from the judgment and sentence of January, 1981 and no opinion is expressed on that subject. The case should be processed by the trial court in the same manner as would any other similar proceeding at the point of initial filing.

The order of dismissal is reversed and the case is remanded with direction to reinstate appellant’s motion.

All concur.


author: BERREY, Judge.

text:
    Trudy A. BAKER, Plaintiff-Appellant, v. ARMCO, INC., Defendant-Respondent, and Rapid Electric Company, Inc. and Trauwood Engineering Company, Defendants.
    No. WD 35224.
    Missouri Court of Appeals, Western District.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.
    Robert L. Shirkey, James M. Slone, Kansas City, for plaintiff-appellant.

      Harlan D. Burkhead, John T. Maughmer, Kansas City, for defendant-respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   BERREY, Judge.

The appellant’s husband, Jeffrey C. Baker, was involved in an industrial accident while an employee of Armco, Inc. On June 8, 1981, while feeding wire into a patenting furnace machine he was electrocuted and suffered severe burns from which he died.

The patenting machine was manufactured by Armco, Inc., and used in their plant.

The appellant subsequently filed a claim for benefits under the Missouri Workers’ Compensation Law and was paid benefits by Armco, Inc., pursuant thereto.

The appellant filed a two-count suit for wrongful death against Armco, Inc., Rapid Electric Company, Inc., and Trauwood Engineering Company. Armco, Inc., filed a separate motion to dismiss which the trial court sustained. Appellant appeals the court’s decision.

Appellant bases her theory of recovery on a novel view — the doctrine of “dual capacity,” which has had only limited application in the courts. The doctrine has been recognized in California, (but subsequently limited by legislative act).

For the uninitiated, dual capacity permits recovery in some circumstances over and above the statutory benefits provided by the Workers’ Compensation Law. If the employer designs, manufactures, distributes a defective product and places it in commerce and a third party places said machine into use at the employer’s business and an employee is injured he may recover under workers’ compensation and sue for additional damages under tort law. In the instant case the respondent was using the machine for its own purposes and not manufacturing it for sale to the public.

Appellant would have this court, by judicial fiat, create a separate liability (dual capacity) for the death of the plaintiff because he was electrocuted using a machine manufactured by the respondent and utilized in the business of respondent without having been first placed in the stream of commerce. In her single point of error the appellant alleges the trial court erred in sustaining respondent’s motion to dismiss for lack of subject matter jurisdiction.

There is no doubt that the trial court must treat all facts alleged in appellant’s petition as true and construe all allegations favorable to plaintiff. Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978); Best v. Schoemehl, 652 S.W.2d 740, 741 (Mo.App.1983). Such treatment, however, cannot create a cause of action where none exists. Such is the instant case.

Our Supreme Court noted in Marie v. Standard Steel Works, 319 S.W.2d 871, 875 (Mo. banc 1959):

The compensation act, ... is not supplemented or declaratory of any existing rule, right or remedy, ... and where the employee and employer have elected to accept the provisions of the act such new right or remedy is wholly substitutional in character and supplants all other rights and remedies, at common law or otherwise. (Emphasis added.)

The court in Marie, supra, cites the following additional authority, DeMay v. Liberty Foundry Co., 37 S.W.2d 640, 645 (Mo.1931); Cleveland v. Laclede-Christy Clay Products Co., 113 S.W.2d 1065, 1071 (Mo.App.1938); and section 287.120.

The sole claim of the appellant is that the doctrine of dual capacity be adopted in Missouri and thus avoid the rule of law limiting benefits to those afforded by workers’ compensation. The instant case does not require such an approach. The issue of the adoption or rejection of the theory espoused must await another day. This is so because the doctrine as it has been accepted in the few states considering it has stated that the employer may become a third person “if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” A. Larson, The Law of Workmen’s Compensation, Sec. 72.81 (1983). The adoption of the doctrine under the pleaded facts of this case would afford no relief to this appellant. The decision in this case need go no further than to say that this case presents no pleaded facts to justify relief under the dual capacity doctrine.

Section 287.120, RSMo 1978, “is clear and unambiguous” and “operates to release the employer from all other liability,” so said the court in State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489, 490 (Mo. banc 1979) and cited by the court in State ex rel. Hillyard Chemical v. Schoenlaub, 610 S.W.2d 957, 959 (Mo.1981). In the latter case the appellant Willmore sought damages based on negligence and strict product liability, for injuries already compensated pursuant to Missouri Workers' Compensation Law.

The appellant has stated no cause of action as the trial court correctly found. Appellant may wish to suggest this theory to the legislature for its consideration.

Judgment affirmed.

All concur.


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

text:
    ABC PLUMBING AND HEATING, INC., Plaintiff/Appellee, v. DICK CORPORATION, Defendant/Appellant.
    Supreme Court of Tennessee, at Jackson.
    Jan. 14, 1985.
    Ronald Lee Gilman, Farris, Hancock, Gil-man, Branan & Hellen, Memphis, for plaintiff/appellee.
    Leo Bearman, Jr., Memphis, for defendant/appellant.
   OPINION

LLOYD TATUM, Special Justice.

This is a dispute between the general contractor and subcontractor on a public job as to who is entitled to interest earned on “retainage.” The Chancellor held that the contractor was entitled to the interest. In a split decision, the Court of Appeals reversed the Chancellor, holding that the subcontractor should prevail. We reverse the judgment of the Court of Appeals and affirm that of the Chancellor.

The Dick Corporation entered into a contract with the City of Memphis on July 22, 1980, for construction of the Mud Island project. On August 16, 1980, the Dick Corporation entered into a subcontract agreement with the plaintiff below, ABC Plumbing and Heating, Inc., to perform the plumbing work on this project. As provided in the subcontract, Dick withheld ten percent of all amounts due to ABC for satisfactory completion of the subcontract. ABC's retainage totaled $125,760.53, which was withheld from October 27, 1980, until payments were made in May, August, and October of 1982 by Dick to ABC.

The prime contract between the City of Memphis and the Dick Corporation also provided for retainage. From March 19, 1981 to March 18, 1982, Dick withdrew a total of $1,665,225.00 in retainage which was being held by the City of Memphis on the project. Retainage for work done on the subcontract by ABC was included in these withdrawals. In order to effectuate these withdrawals, Dick posted interest-bearing certificates of deposit in substantially the same amount as the accrued re-tainage which was withdrawn. All interest on the certificates was paid to Dick. ABC deposited no securities with either the City of Memphis or with Dick, the general contractor, and received no interest on the retainage. The subcontractor, ABC, sued the general contractor, the Dick Corporation, for interest on the retainage withheld.

ABC relies upon T.C.A. § 66-11-144, which provides:

“66-11-144. Portion of contract price held in escrow. — (a) Whenever, in any contract for the improvement of real property a certain amount or percentage of the contract price is held back by the owner or contractor, that retained amount shall be deposited in a separate escrow account with a third party giving proper security for the performance of their obligation.
(b) As of the time of the deposit of the retained funds, they shall become the sole and separate property of the contractor, subcontractor, materialman, or laborer to whom they are owed.
(c) Upon satisfactory completion of the contract, to be evidenced by a written release by the owner or contractor, all funds accumulated in the escrow account together with any interest thereon shall be paid immediately to the contractor, subcontractor, materialman or laborer to whom it is owed.
(d) In the event the owner or contractor fails or refuses to execute the release provided for in subsection (c), then the contractor, subcontractor, materialman, or laborer, shall seek his remedy in a court of proper jurisdiction and the person holding said fund as escrow agent shall bear no liability for the nonpayment thereof to the contractor, subcontractor, materialman, or laborer.”

The Dick Corporation insists that the foregoing statute is inapplicable because the work was performed for the City of Memphis. Dick insists that the controlling statute is T.C.A. § 12-4-108:

“12-4-108. Contractors — Withdrawal of retained funds. — Under any construction contract entered into by the state of Tennessee, or any department or agency thereof, including the University of Tennessee, and including contracts entered into by the Tennessee bureau of highways pursuant to the authority contained in § 54-513, or by any county, municipality or other political subdivision of said state, including a metropolitan government, the contractor may, from time to time, withdraw any part, or the whole, of the amount which has been retained from partial payments to the contractor pursuant to the terms of contract, upon depositing with or delivery to the treasurer of the state, or other appropriate public official designated in the contract document; (1) United States treasury bonds, United States treasury notes, United States treasury bills, or (2) general obligation bonds of the state of Tennessee, or (3) certificates of deposit from a state or national bank having its principal office in the state of Tennessee, or (4) a letter of credit from a state or national bank having its principal office in the state of Tennessee. No retained amount shall be withdrawn which would represent an amount in excess of the market value of the securities at the time of deposit or of the par value of such securities, whichever is lower, or in excess of the maximum amount committed and stated in the letter of credit.
At the time of deposit of any securities the same shall be endorsed, if necessary, and shall be accompanied by a conditional assignment to the state of Tennessee, or to the other public body designated as ‘owner’ in the contract documents, which will empower the treasurer of the state, or other appropriate public official designated to have custody of same, to negotiate same at any time to the extent necessary to cause the contract to be fulfilled. At the time of the deposit of any letter of credit, the same shall be accompanied by an authorization by the contractor to deliver the retained funds to the issuing bank and a commitment from the issuing bank that the retained funds delivered to it shall be invested in one of the forms of securities enumerated hereinabove and delivered to the treasurer of the state or other appropriate public official in exchange for the letter of credit, said securities to be endorsed, if necessary, and accompanied by a conditional assignment to the state of Tennessee, or to the other public body designated as ‘owner’ in the contract documents, which will empower the treasurer of the state, or other appropriate public official designated to have custody of same, to negotiate the same at any time to the extent necessary to cause the contract to be fulfilled.
The treasurer of the state, or other appropriate public official so designated, shall have the power to enter into a contract or agreement with any state or national bank having a trust department located in Tennessee for custodial care and servicing of any securities deposited with such official pursuant to this section. Such services shall consist of the safekeeping of said securities and of all services required to effectuate the purposes of this section.
So long as any securities remain on deposit, the treasurer of the state, or other appropriate public official shall, on a regular basis, collect all interest or income on the obligations so deposited and shall pay the same when and as collected, less any custodial care and servicing costs involved, to the contractor. The securities which remain on deposit at the time of completion of any contract and observance by the parties to the contract of any other statutory obligations relative thereto, shall be returned to the contractor. As used in this section, contractor includes the subcontractor. (citations omitted.)” (Emphasis supplied)

The Court of Appeals held that the prime contract between the City of Memphis and the Dick Corporation was governed by T.C.A. § 12-4-108 but that the subcontract is governed by T.C.A. § 66-11-144 because there was no privity between the City of Memphis and ABC, the subcontractor.

In the opinion on the petition to rehear in Harrison Construction Company v. Gibson County Board of Education, 642 S.W.2d 148 (Tenn.App.1982), the Court of Appeals held that only T.C.A. § 12-4-108, and not T.C.A. § 66-11-144, applies when the work contracted for is performed for the State or any of its departments, agencies or subdivisions mentioned in T.C.A.

§ 12-4-108. The Harrison court said:

“... Since there is no express reference to the sovereign in the statute in question, there is a legally imposed inference of the non-inclusion of the sovereign in the applicability of T.C.A. § 66-11-144. From that inference, coupled with the fact that there is a code section dealing explicitly with public contracts (T.C.A. § 12-4-108), we are now compelled to hold that T.C.A. § 66-11-144 does not apply to the defendant Gibson County Board of Education.” Id. at 151.

In the subcontract between ABC and Dick Corporation, the prime contract between the City of Memphis and Dick was referred to and the subcontract specifically provided that ABC would comply with certain portions of the prime contract. There can be no doubt that ABC had knowledge that it was a subcontractor to a general contractor under contract to a governmental entity — the City of Memphis. •

Dick Corporation is a general or principal contractor. Black’s Law Dictionary 615 (5th ed. 1979) defines a general or principal contractor in the building sense as

“One who contracts for the construction of an entire building or project, rather than for a portion of the work. The general contractor hires subcontractors (e.g. plumbing, electrical, etc.), coordinates all work, and is responsible for payment to subcontractors....”

Definitions of a subcontractor include “one who takes a portion of a contract from principal contractor or another subcontractor” and “one who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance.” Id. at 1277. The term “contractor” has been defined as follows:

“... In its broadest sense every person who enters into a contract or takes upon himself contract obligations of any kind is a contractor, but as ordinarily used it is applied to any person who in pursuit of an independent business undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in all its details; the true test of a ‘contractor’ appearing to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished.” (citations omitted)

Storm v. Thompson, 185 Iowa 309, 170 N.W. 403 (1919).

Only the term “contractor” is used in T.C.A. § 12-4-108; there is no language in the statute to indicate that the word “contractor” was used to mean “general contractor” and not “subcontractor.” We think that the term “contractor,” as used in § 12-4-108, encompasses both general contractors and subcontractors.

Our view that § 12-4-108 applies to subcontractors as well as general contractors is bolstered by the last sentence in T.C.A. § 12-4-108, which provides: “As used in this section, contractor includes the subcontractor.” The statute (§ 12-4-108) is applicable only to construction contracts. Thus, for privity of contract to exist between the governmental entity and a subcontractor, the government would be required to be the general contractor for construction of a project for another, and employ a subcontractor. There is no provision in T.C.A. § 12-4-108 requiring privity between the governmental entity and the contractor to make the statute applicable. Giving the statute its ordinary meaning, we hold that the word “contractor” in § 12-4-108 means both general contractors and subcontractors, regardless of whether there is privity between the governmental body and the “contractor.”

There was a valid provision in the contract between ABC and Dick:

“Pursuant to Section 12-434 of the Tennessee Code Annotated (now Tennessee Code Annotated Section 12-4-108), the Contractor intends to pledge acceptable security to the City of Memphis, Tennessee in order to obtain the release of its retainage on a periodic basis throughout the progress of the project. Accordingly, if the Subcontractor desires to have its retention reduced periodically through the life of this project, the Subcontractor shall be required to pledge acceptable security to the contractor which must meet the following conditions in order to permit the release of said retainage:
1. The security must be acceptable to the Contractor and pledged to the Contractor and placed in safekeeping in a local bank, at no expense to the Contractor.
2. Instructions must be given to the local bank to forward to the Contractor the safekeeping receipt fully describing the pledged security.
3. Subcontractor must send a written request for retainage release to the Contractor.
For each retainage release requested by this Subcontractor, a charge of THIRTY-FIVE DOLLARS ($35.00) will be deducted from each retainage release. Any interest paid on the pledged security shall accrue to the benefit of the Subcontractor.”

This provision in the contract is valid and binding upon ABC and Dick. It does no more than provide a convenient method for both parties to obtain their appropriate re-tainage. ABC did not comply with T.C.A. § 12-4-108 or with the above-quoted provision in the contract. Therefore, ABC was not entitled to early payment of retainage, interest thereon or interest paid on security placed with the City of Memphis by Dick Corporation.

The judgment of the Court of Appeals is reversed and that of the Chancellor is affirmed. Costs are adjudged against the appellee, ABC Plumbing and Heating, Inc.

COOPER, C.J., and HARBISON, J., concur.

BROCK, J., files dissent in which DRO-WOTA, J., joins.

BROCK, Justice,

dissenting.

I respectfully dissent.

The majority concludes that T.C.A., § 12-4-108, applies to subcontractors as well as general contractors, regardless of the privity between the subcontractor and the public body. The thrust of its opinion is that since the contractual rights of the plaintiff emanate solely from the public contract between Dick Corporation and the City of Memphis, both contracts are governed by T.C.A., § 12-4-108. I disagree.

The two agreements are separate and made between separate parties. The fact that the subcontract agreement embodies the general contract made between Dick Corporation and the City of Memphis does not convert the two agreements into one and does not convert the subcontract into a contract with a public entity.

I am of the opinion that a more reasonable interpretation of § 12-4-108 than the one set forth in the majority opinion is that the statute applies to a subcontractor only when there is privity between the public body and the subcontractor. My conclusion is supported by the legislative history of the statute. Section 12-4-108 was amended by 1971 Tenn.Pub. Acts 340, § 1 which added the following sentence: “As used in this section, contractor includes the subcontractor.” The sponsor of S.B. 1015, which became Pub. Ch. 340, made the following statement immediately prior to its passage in the Senate:

“This bill, along with the one passed last year, permits contractors on state jobs to put up the proper security that is acceptable to the Treasurer and Comptroller so that they could withdraw their retainage in the job and be permitted to earn money on their retainage rather than have to lose money, or accrue interest on their money while they wait for completion of the job. This merely permits the subcontractor, when they are in direct relationship with the state, to do the same thing. Pending any questions, I move passage on third and final reading.” Legislative recording, May 13, 1971, Senate: Senator Ed Blank S.B. 1015, Disc. No. S-145 (emphasis added).

That statement indicates that the statute as amended was intended to apply only to those subcontractors who are in privity with a public body. A subcontractor could be in privity with a public body, for exam-pie, on a job in which the public entity acts as the general contractor for its own project.

The majority opinion cites Harrison Construction Co. v. Gibson County Board of Education, 642 S.W.2d 148 (Tenn.App.1982). The question in that case was whether a contractor on a public job is entitled to interest earned on the retainage held by the public body. Harrison is not controlling in the instant case because here we are dealing with a contract between a general contractor and a subcontractor, neither of which are public entities.

In the subcontract agreement, the parties agreed that if ABC desired to have its retention reduced periodically through the life of the project, ABC would be required to pledge acceptable security to Dick Corporation. That agreement, however, does not negate Dick Corporation’s duty under T.C.A., § 66-11-144, to pay interest to ABC if the retainage is not reduced.

Because the contract between ABC and Dick Corporation does not include a public entity, I would hold that T.C.A., § 66-11-144, is applicable and thus the interest earned on the retainage is the property of A.B.C. I am authorized to state that Mr. Justice Drowota concurs in this dissent.

       The statute as quoted herein was substituted by Public Acts of 1983. Chapter 118.


author: TODD, Presiding Judge, Middle Section.

text:
    Linda Sue BUSH, Plaintiff-Appellee v. James Larry BUSH, Defendant-Appellant, v. James H. BUSH and wife, Aileen Bush, Intervening Petitioners-Appellants
    Court of Appeals of Tennessee, Middle Section at Nashville.
    Oct. 3, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 22, 1985.

      Howard F. Butler, Clara Willis Byrd, Butler, Lackey, Holt & Snedeker, Nashville, for defendant-appellant.
    Joe P. Binkley, Jr., Nashville, for intervening petitioners-appellants.
    James W. Stinnett, Jr., Stinnett, Wilkinson & Wilson, Ashland City, for plaintiff-appellee.
   ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

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

In this divorce case, the defendant, James Larry Bush has appealed from the judgment of the Trial Court which granted to the plaintiff Linda Sue Bush, an absolute divorce, custody of two children, periodic alimony and child support, the family home and contents and an automobile.

Defendant’s five issues on appeal challenge each of the major portions of the decree. In addition, defendant’s parents, who intervened seeking custody of the children, have filed a brief challenging the grant of custody to the plaintiff.

The parties were married on June 7, 1974, and have produced two children, a son aged 7 years and a daughter aged 3 years. The plaintiff is a housewife. The defendant is a dentist.

The defendant’s first complaint on appeal is that the divorce should have been granted to him and not to the plaintiff.

Defendant first argues that plaintiff was guilty of falsely accusing him of adultery. Reitano v. Reitano, 52 Tenn.App. 289, 373 S.W.2d 213 (1963); Humphreys v. Humphreys, 39 Tenn.App. 99, 281 S.W.2d 270 (1954).

There is evidence that defendant visited his dental assistant in Reno, Nevada, and that, in May, 1983, defendant spent the night in the apartment of his dental assistant. If this evidence be accepted, the accusation of adultery was not so unfounded as to be cruel and inhuman treatment.

Defendant next relies upon the plaintiff’s admission of her own adultery after the final separation of the parties and at times when the children were visiting with their father.

Defendant cites authority to the effect that adultery is a complete bar to divorce on grounds of cruel and inhuman treatment.

In Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968), the husband sued for divorce on grounds of cruel and inhuman treatment, which the wife denied, alleging adultery of the husband. The husband admitted living with another woman as man and wife for many years, buying a home with her as husband and wife, deeding his interest to her, and claiming her as an exemption on income tax returns. This Court, with a strong dissent, affirmed the dismissal of the husband’s suit by directed verdict.

In Dukes v. Dukes, Tenn.App.1975, 528 S.W.2d 43, this Court affirmed a decree which dismissed the wife’s suit for divorce from bed and board and granted a divorce to the husband in spite of evidence of adultery on his part. This Court said:

... The record does not present the strongest case in favor of the appellee-husband, but it does present strong reasons why the marriage of these parties should be dissolved. Their married life has clearly been a period of constant turmoil and successive altercations. The evidence does not preponderate against the decree of the Trial Judge which must be affirmed. T.C.A. § 27-303.

In Clark v. Clark, Tenn.App.1982, 644 S.W.2d 681, this Court held that misconduct occurring after separation may be grounds for divorce, distinguishing Chastain v. Chastain, Tenn.1978, 559 S.W.2d 933, wherein the Supreme Court held that wife’s adultery after the husband had abandoned her did not disentitle her to a divorce on the ground of abandonment. In Chastain, the Supreme Court said:

[3] An examination of the pertinent statutes indicates that recrimination is allowed as a defense only to a complaint for divorce based upon the ground of defendant’s adultery ... However, the reported cases indicate that our courts have sometimes mistakenly treated the defense defined in T.C.A., § 36-818, as one of recrimination. See Canning v. Canning, 59 Tenn.App. 678, 443 S.W.2d 502 (1968).
... [4] Therefore, it is our opinion that in a ease such as this in which the ground for divorce is one of the “causes of divorce” specified by T.C.A., § 36-802, the “ill conduct” of the complainant may constitute a defense to the complaint only if such “ill conduct” is shown to be “a justifiable cause for the conduct complained of.” For instance, the defendant may neutralize ihis abandonment and failure to support his wife by showing that such misconduct on his part was brought about by her ill conduct toward him. See McClanahan v. McClanahan, 104 Tenn. 217, 56 S.W. 858 (1900).
[5] Applying this rule to the facts of the instant ease, it is obvious that the adultery of the plaintiff committed after the defendant husband had abandoned her and turned her out of doors and refused or neglected to provide for her could not have been “a justifiable cause” for the alleged abandonment on the part of the defendant. Therefore, in the circumstances of this particular case, plaintiffs adultery does not disentitle her to a divorce. This Court recently denied cer-tiorari in a case in which the Court of Appeals had reached the same conclusion in an unreported opinion of that court.

II

[6] It has been suggested that although the adultery of the plaintiff under the facts of this case did not constitute a defense under T.C.A., § 36-818, and could not be asserted as recrimination under T.C.A., § 36-811, because the ground for divorce alleged by the plaintiff was not adultery, nevertheless, her act should repel her because of the equitable doctrine of unclean hands. We cannot agree; unclean hands is not listed as a statutory defense to an action for divorce and the more recent and better reasoned cases hold that, except for fraud and deceit upon the court, which are always available as defenses in any court, the clean hands principle does not apply in divorce litigation. Bales v. Bales, 33 Ohio Misc. 221, 294 N.E.2d 252 (1971); Ryan v. Ryan, Fla. 277 So.2d 266 (1973); De La Portilla v. De La Portilla, Fla.App., 287 So.2d 345 (1973).

In the present ease, there is no evidence that the indiscretions of plaintiff occurred prior to or contemporaneously with the cruel and inhuman conduct of which the husband has been found guilty. Therefore, the indiscretions of the wife could not possibly have been “justifiable cause” for the husband’s misconduct within the contemplation of TCA § 36-818 (now § 36-4-120), cited in Chastain, supra.

There is, therefore, no merit in appellant’s contention that the wife herein is disentitled to a divorce by her admission of indiscretions after the misconduct of the husband and after the final separation.

As to appellant’s insistence that the divorce should be granted to him because of such admissions, this Court is not disposed to disturb the finding of the Trial Judge that the real cause of the estrangement of the parties, their separation and ultimate divorce was and is the misconduct of the husband. As has been stated many times in many ways, a divorce suit is not designed to determine which spouse has been perfect in behavior, for perfection is found no more in marriage than elsewhere. Seldom is a marriage dissolved in a contested case, without some evidence of some imperfection in both spouses. It is the task of the courts to determine the fault which was responsible for the end of domestic harmony without which no marriage can be expected to endure.

The testimony which the Trial Judge accepted as true shows that the fault lay with the husband. The case having been tried orally before the Trial Judge, this Court is not in position to revise his finding as to the credibility of witnesses. State, ex rel Balsinger v. Town of Madisonville, 222 Tenn. 272, 435 S.W.2d 803 (1968).

Appellant next insists that the Trial Court erred in “vesting” custody of the minor children in the plaintiff. This Court does not understand that custody of children is “vested” by a divorce decree. In view of TCA § 36-6-101(a), it is considered that an “award” or determination of custody of a minor child does not amount to a vesting, but an entrustment until further order of court.

Appellant concedes that he would not be able to personally care for the children during his working hours when his parents would supervise them. Thus, the issue is whether the mother or the grandparents are the preferrable custodians.

In Logan v. Logan, 26 Tenn.App. 667, 176 S.W.2d 601 (1943), this Court reviewed a divorce decree which granted custody of a 5 year old child to its mother but ordered her to deliver the child to its paternal grandparents one week each month. The decree was modified to commit exclusive custody to the mother and relieve her of having to divide custody with the grandparents. This Court said:

[1,2] All our cases recognize that the welfare of the child is the paramount consideration, and that ordinarily a child’s welfare will be better fostered with its parents than with other persons. The case of Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 106 S.W. (2d) 558, holds that a parent who is of good character and a proper person to have the custody of the child and is reasonably able to provide for it ordinarily is entitled to the custody as against other persons, even though they are much attached to the child. This is particularly true in a case like this where the parent is the mother and the child is of such tender age as to need a mother’s care.

In Stubblefield v. State, ex rel. Fjelstad, supra, the child was four years of age, its mother had died, its father sought to regain custody from the great grandfather of the child. The Supreme Court awarded custody to the father and said:

... [T]he court would not be justified to disregard or fail to properly weigh considerations of parental right. The parent’s right is certainly paramount, other considerations being equal. A father is prima facie charged with the proper care and is entitled to custody of his child unless that custody is resisted on grounds that he is not fit for the trust, and the objection can only be sustained by a clear preponderance of convincing proof. The presumption is in his favor in the absence of a clear showing that he is disqualified for the proper discharge of parental duty. The court cannot lightly, and without good cause, invade the natural right of the parent to the custody, care, and control of his infant child.

As stated in Hernandez v. Thomas, 50 Fla., 522, 39 So., 641, 645, 2 L.R.A. (N.S.), 203, 111 Am.St.Rep., 137, 7 Ann.Cas., 446:

“In accordance with the prevailing rule in the American courts, that in awarding the custody of children the paramount consideration is the welfare of the child, rather than the technical legal right of the parent. While this is true, yet the court should not lightly and without good cause invade the natural right of the parent to the custody, care, and control of his infant child.”

In the case of State ex rel v. Richardson, 40 N.H., 272, the Supreme Court of that state held:

“Prima facie, however, the right of custody is in the father; and when the application is resisted upon the ground that he is unfit for the trust, by reason of grossly immoral conduct, harsh usage of his child, or other cause, a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs.”

This proposition of law was likewise clearly stated in the case of State ex rel. v. Martin, 95 Minn., 121, 103 N.W., 888:

“The right of a parent to the care and custody of his minor child is, both at common law and under the statute, paramount and superior to the right of a third person. The presumption is that the parent is a fit and suitable person to be intrusted with the care of his child, and the burden is upon him who asserts the contrary to prove it by satisfactory evidence.”

We quote from 46 C.J., pp. 1228-1230:

“A parent who is of good character and a proper person to have the custody of the child and is reasonably able to provide for it ordinarily is entitled to the custody as against other persons and this rule applies although such others are much attached to the child and the child is attached to them, and prefers to remain with them, and they are in all respects suitable to have the custody of the child and able to support and care for it, or even though they are better able to afford the child material advantages.”

It is further stated in above authority that these rules have been applied in favor of father or mother against grandparents, aunts, and uncles, maternal or paternal.

In Clarke v. Lyon, 82 Neb., 625, 631, 118 N.W., 472, 474, 20 L.R.A. (N.S.), 171, it is said:

“The court has never deprived a parent of the custody of a child merely because on financial or other grounds a stranger might better provide. The statute declares and nature provides that the right shall be in the parent, unless the parent be affirmatively unfit.”

We need not multiply authorities. The foregoing are typical of the strong current of judicial thought in our country.

The foregoing authorities support the policy that, until it be shown that neither parent is a suitable custodian, it is improper to consider entrusting custody to a non-parent.

The Trial Judge determined that the mother was a proper custodian of these young children. His decision comes to this Court for review de novo upon the record with a presumption of correctness unless the evidence preponderates otherwise. TRAP Rule 13(d). Hass v. Knighton, Tenn.1984, 676 S.W.2d 554.

Appellant cites Born v. Born, Tenn.App.1981, 614 S.W.2d 49 and refers to a recording of a telephone conversation between plaintiff and defendant. A miniature “microcassette” is found in the record, which purports to be the recording relied upon by appellant. This Court has no equipment for producing sound from a “micro-cassette”. It is therefore not an intelligible part of the record and will not be considered as such.

The record, when transmitted to this Court, must be in intelligible form. If a microscope is required to view details of an exhibit, a microscope must be provided with the record. Likewise, a projector is required for moving pictures or slides, and any other necessary equipment for obtaining intelligence from the record.

Appellant next relies upon the wife’s admitted indiscrete social life; but the uncontroverted evidence shows that any overt indiscretions occurred when the children were visiting with appellant or his parents. Visiting in the home of a male friend with the children during the day time when no misconduct occurred is not deemed justification for depriving these children of the natural affection, attention and care of their mother.

The taking of the older child to an “R” rated movie on a single occasion is not deemed conclusive of the mother’s fitness.

The Trial Judge was faced with a most difficult choice in passing upon credibility. While the wife candidly admitted her mistakes, the husband adamantly denied every accusation of violence and cruelty. By his decision, the Trial Judge determined that the husband was guilty in spite of his sworn testimony of innocence. This means that the Trial Judge declined to believe appellant on his oath. This being true, the Trial Judge was justified in disbelieving all of appellants’ testimony. Falsus in uno, falsus in omnia. Frierson v. Galbraith, 80 Tenn. (12 Lea) 129, 1883). Buck v. West, 58 Tenn.App. 539, 434 S.W.2d 616 (1968).

In addition to the determination of credibility from personal observation, the Trial Judge was privileged to observe the attitude and demeanor of the parties in respect to their suitability as custodians. This Court does not have the benefit of such personal observation. Absent some compelling reason otherwise, considerable weight must be given to the judgment of the Trial Court in respect to credibility and suitability.

The evidence does not preponderate against the decision of the Trial Judge to place custody of the children with their mother. At any time it should appear to the Trial Court that the welfare of the children requires, the Trial Court has statutory authority to change its custody order.

A review of the record in this case and experience in other similar bitter marital disputes suggests the necessity of a warning to the parties: to the mother to maintain an exemplary record of motherhood, and to the father to refrain from harassment by unjustified litigation regarding custody. The courts have little patience with efforts of parents to “have their way” to the disadvantage, embarassment and injury of the children.

It is not easy for either parent to give up free access to the society of a child, but this is the price of divorce. The Courts have been unable to devise a means of providing both separated parents the constant society of the children. It is inherent in separation and divorce that the children are deprived of the normal society of one of the parents and one of the parents is deprived of the normal society of the children.

Appellant next insists that the Trial Court “abused its discretion” in the division of the property of the parties.

At the time of their marriage, neither party owned any property of any consequence. The wife worked in the dental office of the husband until February, 1982. During their marriage, the parties accumulated interests in certain property which includes a farm, a home, an automobile, a truck, farm equipment, household goods and dental clinic equipment. The briefs contain not a single citation to the record where the value of such property may be found. The record has been searched for this information, and it has not been found. It must be concluded that the parties were so busy with their charges and counter-charges that they overlooked the matter of proving the value of their property for purposes of equitable division.

The Trial Judge made no finding of fact except to state in his decree that the divorce was granted to the plaintiff on grounds of cruel and inhuman treatment.

The decree makes the following division of property:

1. To the wife:
(a) ... “the automobile and all other personal property now in her possession.
(b) ... “whatever — interest—defendant — may have in the house and lot owned by the parties — and she will pay the mortgage indebtedness”. (Property is fully described.)
2. To the husband:
(a) “... whatever — interest—plaintiff — may have in the — farm—and he will be responsible for the indebtedness thereon — ” (Farm described.)
(b)“... Whatever — interest—plaintiff — may have in the truck owned by the parties — ”.
(c) “ — Whatever—interest—plaintiff may have in the farm equipment, machinery and cattle — .”

By a subsequent decree, the divorce decree was amended to award to the husband the following:

1. One-half of the children’s pictures.
2. Medical books, personal books and bookcase.
3. His clothes and personal items.
4. 22 cal. rifle.
5. 30-30 cal. deer rifle.
6. Guitar.
7. Two (2) fishing rods and tackle box.
8. Dental and personal tools and supplies.
9. Either the riding garden tractor or small sail boat.
It is further ORDERED, ADJUDGED AND DECREED that if the property in Hickman County which came to the defendant through his great grandfather has not already been deeded to the defendant, the same is hereby awarded to him.

The brief of appellant undertakes to state facts as to value and origin of property which are not supported by citation to the record and as to which no evidence is found in the record. Without evidence in the record, this Court cannot review the justice of the division of property by the Trial Judge. The parties have already had their day in court, and it should not be necessary to hold another trial to give them an opportunity to provide what should have been provided in the first instance. However, this Court is reluctant to approve a judgment which is unsupported by evidence in an apparently complete record.

Accordingly the judgment of the Trial Judge as to division of property will be vacated and the cause will be remanded for a further hearing, finding of fact and judgment as to the division of the property of the parties. TCA § 27-3-128.

Finally, appellant argues that the Trial Court erred in awarding alimony in futuro. The judgment of the Trial Court states simply:

5. It is further ordered ... that the defendant will pay to the plaintiff the sum of $1,730.00 per month for the support of the plaintiff and the two minor children.

Appellant argues that he is unable to pay the amount required and that the plaintiff is able to go to work to support herself.

This Court is not impressed with the argument of a dentist with a specialty that he is unable to support his children and the wife who worked to help him get started in his career.

If the misconduct of defendant had not destroyed this marriage the wife would reasonably have expected a continued comfortable life as the wife of a prosperous professional man.

Upon remand, the allowance of support should be divided into categories of alimony and child support and; if applied for by either party, a further hearing may be held to adjust the amount of alimony and/or child support upward or downward in accordance with the needs of the wife and children and the ability of defendant. Until changed by the Trial Court, the present provision of support is not disturbed.

The judgment of the Trial Judge awarding the wife a divorce, child custody, child support and alimony, including attorneys fees, is affirmed.

The judgment of the Trial Court in regard to division of property is vacated. Upon remand, the Trial Court will hold such further hearing as may be necessary, will file a detailed finding of fact, and enter detailed judgment for division of property. Until the entry of such judgment, the possession of property recognized and awarded in the divorce decree will not be disturbed.

Costs of this appeal are taxed against the defendant-appellant.

The parents of appellant who filed an “intervening petition” in respect to custody have undertaken tb appeal and present their views to this Court. Inasmuch as there has been no finding that both parents are unsuitable custodians, there is no basis for this Court to consider the efforts of these intervenors to obtain custody of the children. The cost of the appeal of the intervenors are taxed against them.

The cause is remanded to the Trial Court for further proceedings.

Affirmed in pat, Vacated in part, Remanded.

LEWIS and KOCH, JJ., concur.


author: FRANKS, Judge.

text:
    Robert C. KEETON, et ux., et al., Plaintiffs-Appellees, v. CITY OF GATLINBURG, Tennessee, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 11, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.
    C. Dan Scott, Sevierville, for defendant-appellant; Hailey, Waters, Sykes & Sharp, Sevierville, of counsel.
    Gary R. Wade, Sevierville, for plaintiffs-appellees.
   OPINION

FRANKS, Judge.

Plaintiffs’ petition to rezone their tract of land lying along Church Street, within the City of Gatlinburg, from R-l, low density residential, to R-2, high density residential, was denied by the city but, in a declaratory action in chancery court, the chancellor entered judgment declaring “the classification by the defendants ... is arbitrary, unreasonable, and without a rational basis and accordingly is ordered reclassified as R-2, high density residential.”

The dispute is before us on appeal by the City of Gatlinburg.

The basis of the court’s ruling appears in its memorandum as follows:

As the Court has heretofore pointed out, plaintiffs property had previously been zoned R-2 on more than one occasion. No change in circumstances have been shown to exist to warrant such change from R-2 to R-l and back and forth as was done.
No subsequent change is shown to exist to justify retaining plaintiffs property as R-l because of the fact that the streets serving the property are the same as they were before. The conditions are the same, and the adjacent property, the adjoining property already zoned R-2 and has apparently never been changed.
The commercial use of property across Church Street although zoned R-l. [sic] The undenied fact that defendant through land use studies, recognize the needs and the desirability of this property and other adjacent area properties to be best suited for use as R-2, high density, and that such use is consistent with and in furtherance of the best interest of the city.

The subject property was zoned R-2 from 1976 until March 21, 1978, when the property was zoned R-l. In 1980, the Tennessee State Planning Office prepared a long range land use plan for the area and the City of Gatlinburg, acting pursuant to the plan, passed an ordinance on December 22, 1981 in the furtherance of the plan which rezoned plaintiffs’ property and other properties in the area from R-l to R-2. In July, 1982, plaintiffs’ property was rezoned from R-2 to R-l.

Where a municipal governing body acts under its delegated police powers in zoning matters, judicial review of such action is restricted by constitutional limitations. The court’s inquiry is limited as to whether any rational basis exists for the legislative action and, if the issue is fairly debatable, it must be permitted to stand as valid legislation. Fallin v. Knox County Bd. of Com’rs, 656 S.W.2d 338 (Tenn.1983).

The minutes of the city commission meeting denying plaintiffs’ petition to rezone gave its reasons for the denial:

[Petitions from neighbors; inadequate roadways; and, potential for adverse impact on the neighborhood.

Harold Edwards, employed as a city planner by defendant, and previously employed by the Tennessee State Planning Commission, testified:

[M]y observation concerning the re-zoning request were that I did express concern over the limited width of the street. The basis of my concern being that an alteration in the density could result in an increase in traffic flow on an already narrow street. I did express concern over the way the proposed boundary was drawn. I felt that a more comprehensive analysis of the area should be taken into account rather than changing the zoning classification on one side of the street to allow for higher density development when on the other side of the street the zoning classification remained for low density. My observations were also that in the immediate area the neighborhood or the established land use pattern was predominately [sic] a single family residential in nature and that a zoning change to a higher density could have an impact on the established land use pattern there.

This, and other, evidence establishes a fairly debatable issue as to whether the city acted rationally in refusing to rezone the property to a high density residential classification.

Richard O’Brien, who was Gatlinburg’s city planner from June, 1980 until September, 1983, in his testimony explained the zoning changes which the chancellor considered capricious. His testimony:

The latest change in zoning, the latter change. The change in 1976 to 1978 rather, was an absolute change in the zoning map. When they adopted a new ordinance they re-evaluated their land use and made decisions and changed the map. What happened in 1982 was an adoption process that was very cumbersome and we had to make changes after the fact of adoption and we had to go back and revise some things. And the map was one of the concerns that caused a referral back to the planning commission again to further re-work the map before it was finally approved. That’s why there was this interim period where we were under the official zoning of a map that was the commission was not satisfied with.
Q. Is that as the result of ordinance 812?
A. Yes.
Q. During that five month period from the time 812 was enacted to the time 830 was enacted, did you all work on the map and re-zone a bunch of areas in that map?
A. There were a lot of properties which were reflecting a different zoning as the result of recommendations made by the Tennessee State Planning Office. Mr. Jim Wagner and he had worked very closely with the City of Gatlinburg. He's the one who had prepared our land use plan that I referenced earlier. I think he had presented a map to the City of Gatlinburg consistent with that land use plan. When the map was thoroughly reviewed, published in the newspaper, concerns were brought to surface that the community wasn’t satisfied with.
Q. Not just with Mr. Keeton’s property but with property all over the City of Gatlinburg?
A. That’s correct. We had tried to recognize previous down zonings and place them back where they were. It was an elimination of rural districts. When it got right down to the final adoption of 830 and the map that had been proposed, which I think reflected this R-2, there was so much discussion and controversy, I think the motion was finally let’s put the map exactly like we had it, with the exception of the rural districts being eliminated.
A, And that’s the way it was finally done.
Q. Which would put Mr. Keeton’s property back to R-l?
A. That’s correct.

A municipality, under its police powers, may correct an unwise or erroneous zoning which has been previously established by a comprehensive plan of zoning. See Barret v. County of Shelby, 619 S.W.2d 390 (Tenn.App.1981). Also see 101A C.J.S., Zoning and Land Planning, § 72. Clearly, the city acted within its legislative discretion to change the zoning classification of plaintiffs’ property in 1982. Accordingly, we find no basis to reclassify the property by judicial fiat. The judgment of the chancery court is reversed and the cause remanded to enter judgment for the City of Gatlinburg.

All cost of appeal is assessed to the appellants.

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


author: CRAWFORD, Judge.

text:
    Ladon LANGFORD, and wife Barbara Langford, Plaintiffs-Appellees, v. MINGLE & ELROD, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Nov. 16, 1984.
    Application for Permission to Appeal Denied Jan. 22, 1985.

      Raymond G. Prince, Hendersonville, for plaintiff s-appellees.
    William C. Moody, Nashville, for defendant-appellant.
   CRAWFORD, Judge.

Plaintiffs, LaDon Langford and wife, Barbara Langford, appeal from the judgment of the trial court on a jury verdict in favor of defendant, Mingle and Elrod, Inc.

Plaintiffs’ complaint alleges in substance that as an employee of Moore Hardware he entered the premises of defendant to sandblast and paint large steel “I” beams stacked on defendant’s premises. The “I” beams were stacked using wooden boards to separate them, and one or more of the wooden boards broke causing the “I” beams to fall without warning or notice to plaintiff, causing plaintiff to suffer the injuries and damages alleged. Plaintiffs aver that defendant, through its employees, was negligent in failing to stack the steel “I” beams in a safe and reasonable manner and that this negligence directly and proximately caused the losses, injuries and damages to plaintiffs.

The defendants filed an answer to the complaint joining issue on all of the material allegations, denying specifically that it was guilty of any negligence which directly and proximately caused any injuries and damages to plaintiffs.

The proof indicated that plaintiff, along with fellow employees of Moore Hardware, was sent to the premises of the defendant to sandblast and then paint steel “I” beams which defendant had stacked about waist high on the premises. The “I” beams involved in this controversy were approximately 25 to 30 feet long and the horizontal part of the beam was 18 to 20 inches. They weighed, depending on the length, 1000 to 2000 pounds each. The “I” beams were generally moved by a forklift and were stacked with wood separating each “I” beam in order to utilize the forklift and also to facilitate the sandblasting and painting as it occurred. Testimony indicated that the weight of the beams required that they be separated by hardwood blocks at least 3x3, but preferably 4x4. Plaintiff contended and proof was introduced that the wooden blocks separating the beams that caused his injuries were less than 3x3. He alleged that the smaller blocks broke because of their inadequate size and that their breaking caused the stack to fall and injure him.

The proof is uncontroverted that the plaintiff was working on a stack of “I” beams to his front and that the stack of “I” beams that collapsed and caused his injury was a stack of “I” beams to his back or to his right and on which he was not working. While plaintiff was sandblasting a stack of “I” beams, the stack behind or beside him collapsed, fell upon his legs and caused the injuries for which suit was brought.

Plaintiffs have presented three issues for review by this court and we will first consider the second issue which is framed by plaintiffs as:

The trial court erred in instructing the jury on the issue of contributory negligence, because this affirmative defense was neither pleaded by the defendant, nor was there sufficient evidence to justify submission of the issue to the jury, nor was the issue tried by consent of the parties.

The instruction complained of is as follows:

The plaintiff cannot recover in this action if you determine that he was guilty of negligence which proximately contributed to causing the accident and from which an injurious event might reasonably have been anticipated by the plaintiff.
Remote contributory negligence may be defined as that negligence which is too far removed as to time or place or causative force to be a direct or a proximate cause of the accident. If you find that the plaintiff was guilty of such remote contributory negligence, you must reduce the recovery which you would otherwise award him in proportion to his contribution to the injury.

Defendants did not plead contributory negligence, made no effort to introduce proof concerning contributory negligence, and in fact did not make any such argument to the jury in its closing argument. The evidence relied upon by defendant to support an instruction to the jury on contributory negligence came from the president of defendant corporation, Mr. Elrod. That testimony is quoted:

Q. All right, sir. Now, you went to the scene of this accident.
A. Yes, sir.
Q. And you saw the plaintiff there, Mr. Langford.
A. Yes, sir.
Q. What was his position that you saw?
A. I can try to explain this in words, or I can draw you a picture. Which would you want me to do?
Q. Just try to explain it, I think.
A. All right. Let’s for a moment pretend that, say, this is the area where he was. The piece that he was working on represented by this edge of the podium here. Mr. Langford was laying in approximately this position here (indicating). He was not laying across the piece of material that he was working on. In fact, we moved that piece of material in order to get to him and get him free from the steel. He was laying across some members that were behind his back, because he was laid back on his back, from the standpoint of his legs folded under. He was laying across the members. The member that struck him appeared to be — have come from the other side and was across him. He was laying across material that he was not working on. My opinion is that he was standing between two stacks of steel and reaching over one of them to work on a piece on the ground.
Q. Is that a safe practice?
A. No, sir.

We do not consider this to be proof of proximate contributory negligence under the facts of this case. The proof is uncon-troverted that the stack of “I” beams on which plaintiff was working was not the stack of “I” beams that fell on him. There is further uncontroverted proof that a stack of “I” beams could not be pushed over or caused to collapse by the efforts of a human being without the aid of machinery. The testimony of defendant’s president giving his opinion that plaintiff’s activities were not a “safe practice” is not related in any way to the collapse of the stack of “I” beams on plaintiff’s leg. It, therefore, forms no basis for a charge of contributory negligence on plaintiffs part. The record is otherwise silent about any activities of plaintiff that could remotely be considered negligence on his part, and we conclude that there was no evidence of contributory negligence on the part of plaintiff, LaDon Langford.

In Ketron v. Gray, 503 S.W.2d 194 (Tenn.App.1973), plaintiffs sued for the wrongful death of their daughter who, at the time of the fatal accident, had been riding as a passenger in a motorboat driven by defendant. There was no proof introduced at trial concerning any contributory negligence on the part of plaintiffs’ decedent. The plaintiffs appealed the jury verdict and judgment in favor of defendants assigning as error the court’s instruction to the jury on contributory negligence. In holding that the trial court committed error in giving this instruction, Judge Sanders, coining a phrase from an earlier case, said:

In the case at bar, we find ourselves asking the question, what did the deceased do besides take her seat in the boat?

Id. at 197.

Following Judge Sanders’ lead, this court finds itself asking the question, “What did the plaintiff LaDon Langford do besides sandblast the stack of beams on which he was working?”

In Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449 (1965), the court held that the trial court’s instruction to the jury on the question of joint venture was erroneous because there was no evidence thereof in the record and accordingly reversed the judgment of the trial court. The court said:

It has been held time and again that: “The instructions given by the judge to the jury should be directly applicable to the facts in evidence. There must be testimony tending to raise the question in order for an issue to be submitted to the jury. An instruction which assumes that there is evidence tending to prove certain facts, when there is no such evidence, is erroneous. Goodall v. Thurman, 38 Tenn. 209. East Tenn. V. & G.R. Co. v. Toppins, 78 Tenn. 58. Three States Lumber Co. v. Blanks, 118 Tenn. 627, 102 S.W. 79. Allen v. Melton, 20 Tenn.App. 387, 99 S.W.2d 219.” Mayor and Aldermen of Town of Morristown v. Inman, 47 Tenn.App. 685, 342 S.W.2d 71.

Id. at 461.

Since there was no proof in the record in the case sub judice of contributory negligence, the instruction to the jury in that regard was erroneous and we must now turn our attention to T.R.A.P. 36(b) which is as follows:

(b) Effect of Error. — A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.

In O’Rourke v. Street Railway Co., 103 Tenn. 124, 52 S.W. 872 (1899), plaintiff sued the railway company to recover damages for an alleged wrongful expulsion from one of its cars, and the trial resulted in a jury verdict against him. In considering the assignment of error concerning the jury charge of the trial court, the court said:

In his charge to the jury the trial judge said: “A person may lose his right to continue his journey as a passenger upon a car under the following circumstances:
“1. When he acts in such way as to endanger the peace and comfort of the other passengers, he has no right to continue his journey upon the car.
“2. When he presents to the conductor, as an evidence of his right to ride, a ticket or transfer check which shows upon its face that he has no such right, then he cannot continue his journey upon such ticket.
“3. When the conductor, who declined to accept the ticket or transfer, gave such explanation of the defect in the ticket or transfer as would have satisfied any ordinarily reasonable person that the conductor was justified in refusing to take it, then he cannot continue his ride.” Though entirely sound in law, the first of these three propositions is wholly inapplicable in the present case, there being no evidence tending, in the slightest degree, to show that the plaintiff was guilty of conduct calculated to “endanger the peace and comfort of other passengers.” Legal abstractions in a charge are not always hurtful, and, unless it appears that they may have been so, the giving of them, while never to be approved, is not reversible error. In this instance it is not improbable that the jury was misled into the belief that the court thought there was evidence on this particular point, and expected its consideration in the making up of the verdict; hence, the irrelevant instruction may have been in some degree prejudicial to the plaintiff, and its inclusion in the charge is therefore noted as one ground of reversal. (Emphasis supplied).

Id. at 129-131, 52 S.W. 872.

In Ketron v. Gray, 503 S.W.2d 194 (Tenn.App.1973), the court, in finding that a contributory negligence instruction, in the absence of such evidence, likely resulted in prejudice to plaintiffs, said:

Also, we think the charge of the Court is couched in such language that, since there are no specific acts of contributory negligence shown, the jury could have concluded that any act or inattentiveness on the part of the deceased, such as looking in a direction other than the direction in which the boat was traveling immediately before the accident, would bar a recovery.

Id. at 197.

In the case before us, we cannot escape the conclusion that in the absence of specific acts of contributory negligence on the part of plaintiff, the jury could have concluded that any act or inattentiveness on the part of the plaintiff, such as leaning over the stack on which he was working just before the other stack fell on him, would bar recovery.

Accordingly, the judgment of the trial court is reversed and this ease is remanded for a new trial. Costs of appeal are adjudged against appellee.

Because of our decision, we pretermit consideration of the other issue.

NEARN, P.J. (W.S.), and TOMLIN, J., concur.