text:
    STATE of Missouri, Respondent, v. Brian Edward GLASER, Appellant.
    No. WD35975.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    L.R. Magee, Hines & Magee, Kansas City, for appellant.
    James N. Foley, Pros. Atty., Macon, for respondent.
    Before PRITCHARD, J., and SHAN-GLER and DIXON, JJ.
   ORDER

PER CURIAM:

Appeal from conviction of speeding, Section 304.010 RSMo Supp.1984, and fine of $100.

Judgment affirmed. Rule 30.25(b).


source: Caselaw Access Project

author: CROW, Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Mark Bryan CAMPBELL and Brenda Jean Campbell. Mark Bryan CAMPBELL, Petitioner-Appellant, v. Brenda Jean CAMPBELL, Respondent-Respondent. Joe Cain and Hester Cain, Intervenors-Respondents.
    No. 13498.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 30, 1985.

      Ivella McWhorter Elsey, Robert M. Sweere, Springfield, for petitioner-appellant.
    John S. Pratt, William A. Wear, Jr., Springfield, for respondents.
   CROW, Judge.

In an action for dissolution of marriage brought by Mark Bryan Campbell (“Mark”) against his wife, Brenda Jean Campbell (“Jean”), the trial court, among other orders in its decree dissolving the marriage, awarded custody of the parties’ only child, Jennifer Ann Campbell (“Jennifer”), to Jean’s parents, Joe Cain and Hester Cain, who had intervened in the cause for the purpose of seeking custody. Mark was granted visitation from 6:00 p.m., Friday until 8:00 p.m., Sunday on the first and third weekends of every month, a one-month period of temporary custody during the summer, and other visitation on designated holidays. Mark’s parents, who also intervened, were awarded visitation rights apart from those awarded Mark. Neither Mark nor Jean was ordered to pay child support for Jennifer to the Cains.

Mark, who vigorously sought custody of Jennifer at trial, appeals, asserting the trial court erred in awarding custody of Jennifer to the Cains. He attacks no other provision of the decree. Jean did not appeal, nor did Mark’s parents.

Though no party requested it, the esteemed and conscientious trial judge prepared findings of fact and conclusions of law, weighing and analyzing the extensive testimony — lay and expert — presented during the three-day trial. Included in the findings was a determination that Mark “is an unfit person at this time to have the custody of the child.” Commenting on the issue of Mark’s fitness, the trial court stated:

“We do not accuse the father of adultery, but his conduct with Brenda Watson has the same effect on the child as if the sex act were being done with the child present. There are several instances in Missouri where a mother may have a relationship outside the marriage, but in the instance where the child is not there and knows nothing about it, it does not necessarily mean that she would not be a good mother. As we perceive it, the damage is in having a child present under living situations which would appear to be improper. In this case, it did not happen just one time but over a period of time.”

Mark’s first assignment of error asserts the trial court “improperly applied the law relating to parental rights in that the trial court found appellant’s living situation with his fiancee equivelant [sic] to having sex in the presence of his child which finding, if accepted, does not clearly show appellant to be an unfit parent and which does not render him wholly unsuitable for custody.”

In considering this complaint, we note that even though the decree was entered September 22, 1983, six days before the effective date of § 452.375, Laws 1983, p. 783, the trial court was nonetheless empowered to award custody of Jennifer to the Cains, the maternal grandparents, upon a finding that Mark and Jean were unfit, incompetent or unable to care for Jennifer or that the welfare of Jennifer manifestly called for it. In re Marriage of Garner, 651 S.W.2d 564, 566[2] (Mo.App.1983); Matter of C_W_B_, 578 S.W.2d 610, 614[5] (Mo.App.1979).

The thrust of Mark’s first point, as we perceive it, is that the conduct of Mark and Brenda Watson in Jennifer’s presence, as narrated by the trial court, was not, as a matter of law, sufficiently culpable to brand Mark unfit to be Jennifer’s custodian. Whatever merit, if any, that might inhere in that contention need not be assayed, however, inasmuch as there was abundant evidence adverse to Mark regarding other aspects of parental fitness.

As noted elsewhere in the trial court’s findings, there was testimony that Mark has an uncontrollable temper and that he had physically abused Jean on numerous occasions. Although much of that testimony came from Jean and was “discounted a great deal” by the trial court, there was, as the trial court pointed out, other evidence to the same effect including Mark’s own admissions that he had hit Jean, slapped her across the nose, grabbed her hair, knocked holes in the wall of their residence with his fists, and broken a chair in anger. Additionally, there was evidence that Mark, in times past, had smoked marijuana, that he does not show his love for Jennifer, and that he had made promises to her that he did not keep, which distressed her.

There was also evidence, including photographs, that Brenda Watson had administered an excessively forceful spanking to Jennifer for soiling her pants. This led to a child abuse investigation by juvenile authorities. A family counselor who conducted a parenting skills class attended by Mark and Brenda Watson (at the instance of juvenile authorities) testified that in his opinion Mark was unfit to have custody of Jennifer and that Jennifer’s well-being would be endangered if Mark were awarded custody and married Brenda Watson.

The foregoing is some, but not all, of the evidence adverse to Mark on the issue of fitness. It is evident from the record, and from our reading of the trial court’s findings as a whole, that the segment of the trial court’s findings seized upon by Mark in his first point was but one of several aspects of the case which the trial court found negative to Mark. We therefore reject Mark’s contention that the trial court misapplied the law by adjudging him unfit solely because of what occurred between him and Brenda Watson in the presence of Jennifer.

Having so ruled, we proceed with review under Rule 73.01(c), Missouri Rules of Civil Procedure (16th ed. 1985), and Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976), applicable in dissolution eases, Whitenton v. Whitenton, 659 S.W.2d 542, 546[1] (Mo.App.1983), and, specifically, custody disputes, Elfrink v. Elfrink, 620 S.W.2d 386, 388[2] (Mo.App.1981). We must sustain the trial court’s decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

The transcript of the testimony, which we have carefully read, extends to 600 pages, not counting the deposition of a physician which was received in evidence in its entirety, and which we have likewise read. Additionally, the trial court had before it uncounted pages of records from hospitals, physicians, psychologists and clinicians. Summarizing this mass of evidence would extend this opinion to unacceptable length and would serve no prece-dential purpose.

Bearing in mind that each child custody dispute must be evaluated and resolved on its peculiar facts, rather than in terms of academic rules, Stockton v. Guthary, 415 S.W.2d 308, 311[2] (Mo.App.1967), that the trial court is arbiter of the facts and may believe or disbelieve any of the testimony in whole or in part, In re Marriage of Jackson, 592 S.W.2d 875, 877[2]-(Mo.App.1980), that the trial court is in a better position than us to judge the credibility of witnesses, their sincerity, character and other trial intangibles that are not revealed in the trial record, H_ v. H_, 637 S.W.2d 432, 434[2] (Mo.App.1982), and that we may reverse the trial court’s decision as against the weight of the evidence only if we have a firm belief that the judgment is wrong, H.D. v. E.D., 629 S.W.2d 655, 657[2] (Mo.App.1982), we have concluded that the trial court’s order regarding Jennifer’s custody should not be disturbed.

Acknowledging that a parent has the paramount right to the custody of his minor child as against third persons unless it is established that he is an unfit person or is unable to care properly for the child, In re Wakefield, 365 Mo. 415, 283 S.W.2d 467, 472[7] (banc 1955), we find the evidence sufficient to support the trial court’s finding that Mark was unfit to be Jennifer s custodian, and we cannot say that such finding was against the weight of the evidence. Having earlier rejected Mark’s theory that the trial court found him unfit solely because of his conduct with Brenda Watson in Jennifer’s presence and thereby misapplied the law, we deny the first assignment of error.

Mark’s second point is essentially a reprise of the first. He asserts the trial court’s finding that he was unfit is not supported by substantial evidence and is against the weight of the evidence in that the finding that his conduct with Brenda Watson was equivalent to having sex in the presence of Jennifer, coupled with the record as a whole, does not support a finding of unfitness.

As emphasized in our discussion of the first point, we are persuaded that Mark’s conduct with Brenda Watson in Jennifer’s presence was but one of several factors on which the trial court based its finding of unfitness. Having determined, in denying the first point, that the trial court’s custody order was based on substantial evidence and was not against the weight of the evidence, we need say nothing further on the second point. It is denied and the judgment is affirmed.

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

      . Jean, an epileptic, concedes that she, alone, is unable to take care of Jennifer, who was seven years of age at time of trial.

      . Hon. Jack A. Powell, whose untimely death occurred October 15, 1984.

      . A woman 27 years of age at time of trial. Mark, also 27 at time of trial, testified he planned to marry her after his marriage to Jean was dissolved.

      .The version of § 452.375.3 that became effective September 28, 1983, provided, in pertinent part: “The court may award joint custody or sole custody to either parent, or, when the court finds that each parent is unfit or unable, and that it is in the best interest of the child, then to a third party." (emphasis added)


author: GREENE, Judge.

text:
    Charles Eugene DURLEY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 13763.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 30, 1985.

      Jon VanArkel, Asst. Public Defender, Springfield, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, for respondent.
   GREENE, Judge.

Movant, Charles Eugene Durley, was jury-convicted of manslaughter by culpable negligence, § 565.005, for the shooting death of his live-in girl friend, which shooting occurred as the result of Durley’s negligence in handling a gun. The jury recommended a fine of $1,000 and a one-year sentence in the county jail. The trial court found Durley to be a persistent offender, § 558.016, as charged in an amended information, and sentenced him to 15 years’ imprisonment in the custody of the Missouri Department of Corrections. The hearing preceding this action revealed that Durley had been convicted of two prior felonies.

In his appeal, the sole point relied on was that the trial court erred in allowing the state to amend the original information to a charge of class C felony because manslaughter was not a class C felony and, therefore, the persistent offender statute did not apply, as there was no provision in the criminal code, § 556.011 et seq., to have a manslaughter conviction subject to enhanced punishment provisions, by virtue of the persistent offender statute. The appellate court, in affirming the conviction, rejected this argument, holding that statutory punishments prescribed for the crime of manslaughter were subject to enhancement, as authorized by § 557.021.3(1)(c). State v. Durley, 603 S.W.2d 72 (Mo.App.1980).

Durley then filed a Rule 27.26 motion to vacate his sentence, with his primary allegations in support of his motion being 1) the trial court lacked jurisdiction to enhance his punishment, as the original information had not charged him with being a persistent offender, and that no valid amendment to the original information containing such a charge had been filed prior to sentence, and 2) improper reception into evidence of Durley’s admissions as to certain facts “without the requisite findings of voluntariness.” An evidentiary hearing was held, after which the motion court filed interlocutory findings of fact and conclusions of law, followed by final findings of fact, conclusions of law and judgment which incorporated by reference the interlocutory findings. The judgment denied the requested relief.

Durley appeals, claiming that 1) no information had ever been filed in his case charging him as a persistent offender and, therefore, the trial court had no jurisdiction to enhance his punishment, and 2) statements and admissions made by him were improperly received in evidence because they were made involuntarily, in that he had requested an attorney before he made any statements, which request was denied and, further, the statements and admissions were obtained by police subterfuge.

On the first point, the motion court concluded that Durley failed to meet his burden of proof of establishing that an amended information properly charging him with being a persistent offender had not been properly filed. On the second point, the trial court concluded that the statements and admissions made by Durley were voluntarily given, and that his testimony to the contrary was not worthy of belief.

Our review is limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous, Rule 27.26(j), and we must affirm the judgment unless we are left with the definite and firm impression that a mistake has been made, and that the motion court clearly erred. King v. State, 639 S.W.2d 396, 397 (Mo.App.1982).

Turning to the first point relied on, we note that the original felony information charging Durley with manslaughter by culpable negligence was stamped “filed” by the Greene County clerk’s office on April 5, at 2:33 P.M., 1979. Later, the prosecutor’s office filed a “Motion for Leave to file Amended Information” which was stamped July 13, 1979, and to which an amended information, alleging that Durley was a persistent offender, was attached. The amended information was never itself “filed” by the clerk’s office, but was contained in the official court record. At Dudley's trial, the prosecuting attorney asked leave of the court to amend the amended information to reflect that manslaughter by culpable negligence is a class C felony in order to invoke the provisions of the persistent offender act for sentencing. The trial court sustained the state’s motion and allowed the amendment to be marked by interlineation on the amended information in the court’s file. Defense counsel made no objection to the amended information itself on the basis that it had never been “filed.”

The filing of a pleading or information with the clerk’s office need not be accomplished by having the word “filed” stamped on it. The presence of the word “filed” may be evidence of the fact that the information had been filed, but it is not the exclusive proof. To be filed with the court, the information need only be deposited with the clerk of the court. State v. Havens, 177 S.W.2d 625, 630 (Mo.1944).

Since the amended information was part of the official court record, the trial court had notice of it, and Durley was aware of the amendment which added no new offense or charge, but merely indicated the prosecutor’s intent to seek enhanced sentencing based on Durley’s past record, the motion court did not clearly err in holding that Durley failed to meet his burden of proof to show that the amended information was never validly filed and the trial court lacked jurisdiction to impose a 15 year sentence. Further, “[i]f the defendant had any complaint of the use, or manner of use, of his prior convictions [in enhancing his punishment] such question should have been raised as a trial error and prosecuted as such upon his original appeal.” State v. Mallory, 349 S.W.2d 916, 918 (Mo.1961). The first point is denied.

The facts relevant to the second point relied on are as follows. Upon being taken into custody, Durley was read the Miranda warnings and signed a waiver of rights card. He was questioned by Detective John E. Smith, who testified at the motion hearing that he read the waiver card to Durley and witnessed Durley signing it before he proceeded with the interview. Durley claimed that he asked for an attorney’s presence when the police started to question him. He testified that he made the statement in question, only after police allegedly told him that they were trying to clear up his pre-custody statements so that he, “could go ahead and make bond.” Smith remembered no point at which Dur-ley had requested the presence of an attorney, and stated that if Durley had asked for an attorney, he would have ended the interview at once. Detective Smith also testified that he read a copy of the transcribed statement out loud to Durley, while Durley followed along on the original. Smith stopped periodically to ask if Durley understood what had just been read, and had Durley initial each page and sign the last.

It is within the motion court’s province to judge the credibility of the witnesses and it may disbelieve mere assertions made by the moving party. Andrews v. State, 607 S.W.2d 762, 764 (Mo.App.1980). We further observe that Durley did not object at trial to the testimony of Officer Smith, did not allege in his motion for new trial that the admission into evidence of his in-custody statement was erroneous, and did not raise the issue on direct appeal. Voluntariness of the in-custody statement is an issue that should have been raised on direct appeal, and not in this 27.26 proceeding. Jones v. State, 598 S.W.2d 595, 597 (Mo.App.1980).

The findings, conclusions and judgment of the motion court are not clearly erroneous.

Judgment affirmed.

TITUS, P.J., and FLANIGAN, J., concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1978, V.A.M.S.


author: KIRBY MATHERNE, Special Judge.

text:
    Katherine LEFFEW, Plaintiff-Appellee, v. Ellis MAYES, Executor of the Estate of Theodore C. Daniel et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 2, 1984.
    Permission to Appeal Denied by Supreme Court Oct. 29, 1984.

      John F. Dugger, Morristown and Roy T. Campbell, Jr., Newport, for defendants-appellants.
    Sam Jack Anderson of Anderson & Anderson, Morristown, for plaintiff-appellee.
   OPINION

KIRBY MATHERNE, Special Judge.

The main issue before the court may be stated as follows: when a party to a joint bank account (not husband and wife) with a right of survivorship has, during the lifetime of the parties to the joint account, filed a lawsuit alleging that she put about one-half of the money into the account and prayed that one-half thereof be adjudged to her (the other party by intervening petition alleged that the original plaintiff had not paid any amount into the joint account and prayed that the certificate be delivered to him) and, while suit is pending, the other party to the joint account dies, can the plaintiff amend the complaint and enforce a claim for the entire fund as the survivor. We fail to find a reported Tennessee decision on the issue.

The chancellor held for the original plaintiff because, as a matter of law, she, as the survivor, was entitled to the entire amount, citing Lowry v. Lowry, 541 S.W.2d 128 (Tenn.1976).

I. STATEMENT OF CASE.

Katherine Leffew, by original complaint, alleged that she and T.C. Daniel both put money in two joint accounts and that the money so deposited in the two accounts came from both of them in about equal amounts; that the two joint accounts were a $40,000.00 account at Morristown Federal Savings and Loan Association, payable to Theodore C. Daniel or Mrs. Katherine Lef-few, and a $10,000.00 certificate of deposit at the Hamilton National Bank, payable to Theodore C. Daniel or Mrs. Katherine Lef-few. She further alleged that Theodore C. Daniel was incompetent and prayed that the two banks be ordered to pay to her one-half of the amounts represented by the accounts. Theodore C. Daniel was not made a party to the original action. Claude Leffew, the limited guardian of Daniel, was made a party. Also named as defendant was Ellis Mayes, a nephew of Daniel, who it was alleged was interfering with Daniel’s affairs and likely to dispose of the funds in some manner.

The court allowed L. Kirk Wyss, who was appointed limited guardian over Theodore Daniel, replacing Claude Leffew, to intervene, and ordered Wyss to invest the funds pending judgment without prejudice to the rights of any party.

Theodore C. Daniel was allowed to intervene and filed his petition wherein he averred that all the funds represented by the two joint accounts were furnished by him, and that the plaintiff had no funds in either account. Theodore Daniel died on June 5, 1983, before this lawsuit was tried and an order was entered reviving the suit against Ellis Mayes, executor of the Daniel estate.

Mrs. Leffew and Daniel were close friends and he lived in her home for several years until August 1981, at which time she forced him to leave because he was an alcoholic and caused her a lot of problems. Daniel was hospitalized in December, 1981, and later moved to a nursing home where he resided until his death. A limited guardian was appointed for him on March 8, 1982.

On October 7, 1982, the date the $40,-000.00 account with Morristown Federal Savings matured, Daniel and Ellis Mayes appeared at that institution and requested that the account be reissued in the name of Daniel only. Someone contacted Mrs. Lef-few about this and she appeared at the bank and demanded one-half of the money. Bank officials told them that they would have to settle their differences in court. No money was paid out and no change was made in the names on the joint account.

Later, on November 16, 1982, Daniel gave written notice to each banking institution that he owned the accounts but the certificates were not available to him and he asked that Mrs. Leffew’s name be removed from each account. No action was taken by either bank as a result of this notice.

II. OWNERSHIP BY OPERATION OF LAW.

The parties agree that the bank accounts under consideration were in the names of “Theodore C. Daniel or Katherine Leffew”, with the right in either party to withdraw the funds, and the balance on the death of either party would go to the survivor.

Several cases are cited as authority for the plaintiff’s position that upon the death of Daniel the plaintiff as the surviving joint tenant would, by operation of law, take the entire amounts on deposit. Lowry v. Lowry, supra; Merchants & Planters Bank v. Myers, 644 S.W.2d 683 (Tenn.App.1982); Simmons v. Foster, 622 S.W.2d 838 (Tenn.App.1981). Each of these cases deal with situations where one joint depositor had died and the survivor was enforcing his rights against third parties. Here, at the time of the death of Daniel, there was a lawsuit pending wherein the joint tenants were adversaries on the issue of the ownership of the funds on deposit. The issue here has to do with the ownership of the funds prior to the death of Daniel.

Where funds are on deposit in a joint account with right of survivorship, we hold that during the lifetime of the joint tenants a rebuttable presumption arises that the parties own the money on deposit equally. Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Craig v. Curtiss, 64 Ohio App.2d 72, 411 N.E.2d 197 (1979); Phillips v. Phillips, 70 A.D.2d 30, 419 N.Y.S.2d 573 (1979); McAulliffe v. Wilson, 41 N.C.App. 117, 254 S.E.2d 547 (1979). As a consequence, upon a suit by one joint tenant against the other, the parties may prove the ownership of the funds that went into the account. Craig v. Curtiss, supra.

Even though a joint tenant may withdraw the entire fund, one who does withdraw funds in excess of his moiety is liable to the other joint tenant for the excess so withdrawn. Bricker v. Krimer, 13 N.Y.2d 22, 241 N.Y.S.2d 413, 191 N.E.2d 795 (1963); Austin v. Summers, 237 S.C. 613, 118 S.E.2d 684 (1961); Fecteau v. Cleveland Trust Co., 171 Ohio St. 121, 167 N.E.2d 890 (1960). A contractual agreement between the bank and the joint depositors does not conclusively determine the rights between the depositors during their lifetime. Johnson v. Herrin, 272 S.C. 224, 250 S.E.2d 334 (1978); O’Hair v. O’Hair, 109 Ariz. 236, 508 P.2d 66 (1973); In re Webb’s Estate, 18 Ohio App.2d 287, 249 N.E.2d 83 (1969).

We further hold that T.C.A., § 45-2-703, which absolves a bank of liability upon its payment to either joint tenant or the survivor, was enacted for the protection of the bank and does not affect the rights of the joint tenants, as between themselves, during their lifetime. Keokuk Sav. Bank & Trust Co. v. Desvaux, 259 Iowa 387, 143 N.W.2d 296 (1966); Armstrong v. Daniel, 88 Ill.App.2d 31, 232 N.E.2d 218 (1967).

Based upon the foregoing authorities, we hold that during the lifetime of joint tenants (other than husband and wife) with right of survivorship, the funds deposited in such an account are held in divisible parts and, upon the death of one, the other takes the whole only by survivorship. Therefore, upon suit being brought by Mrs. Leffew claiming one-half of the funds deposited in the joint accounts, the other joint tenant, Daniel, had a right of action to contest that claim and show the realities of ownership, which he did by his intervening petition.

Does the cause of action asserted by Daniel survive his death? Statutes on the issue provide:

T.C.A., § 20-5-101. No abatement where cause survives. — Actions do not abate by the death, or other disability of either party, or by the transfer of any interest therein, if the cause of action survives or continues.
T.C.A., § 20-5-102. Actions surviving death of party. — No civil action commenced, whether founded on wrongs or contracts, except actions for wrongs affecting the character of the plaintiff, shall abate by the death of either party, but may be revived; nor shall any right of action arising hereafter based on the wrongful act or omission of another, except actions for wrongs affecting the character, be abated by the death of the party wronged; but said right of action shall pass in like manner as the right of action described in § 20-5-106.

Upon the death of Daniel, this lawsuit was revived in the name of Ellis Mayes, the executor of the Daniel estate — Daniel’s claim survived his death.

We conclude that the chancellor erred in holding that, as a matter of law, the plaintiff Leffew was entitled to the funds on deposit in the joint accounts. The joint tenants having differed on the ownership of the funds and having, during their lifetime, brought suit to establish their respective interests therein, the ownership of the funds must be determined in that lawsuit, even though one claimant died while the suit was pending.

III. PROOF OF OWNERSHIP.

We will first consider the $40,000.00 joint account with Morristown Federal Savings and Loan Association (Federal Savings).

On July 17, 1970, Theodore C. Daniel acquired a certificate of deposit at Federal Savings, account number 1291, in the amount of $20,000.00. This account was opened in the names of “Theodore C. Daniel or Mrs. J.E. Mayes”. A bank official testified that a new savings certificate was issued to the same parties on October 7, 1974, in the amount of $37,184.03. The bank official testified that on September 10, 1975, and after the death of Mrs. J.E. Mayes, her name was erased from this account book and the name of Mrs. Katherine Leffew inserted, so that the account read “Theodore C. Daniel or Mrs. Katherine Leffew”. At the time of this transaction, Theodore C. Daniel executed, as the individual owner of the account, a bank form titled “Transfer of Individual Ownership to Joint Ownership”. Both Theodore C. Daniel and Mrs. Katherine Leffew signed this form as the new joint owners of the account which, at that time, amounted to $39,258.81. On January 5, 1976, this account had the sum of $40,744.81 and Katherine Leffew signed a withdrawal slip for the sum of $744.81, for a check in that amount payable to Theodore C. Daniel. The account was thus reduced to $40,-000.00, and thereafter interest was paid as it accrued by checks payable to both parties. It is, therefore, obvious that Mrs. Leffew did not deposit one cent to this joint account — all the money came from Daniel.

Mrs. Leffew attempts to establish her ownership of one-half of the funds in this account by testifying that she bought one-half of the account from Daniel in September, 1975, when the account was issued in their joint names. She stated that she paid Daniel $19,000.00 plus for one-half of the account when the account amounted to $39,258.81. She stated that she paid Daniel from cash that she had kept in a desk drawer at her home since 1969. She did not know how much money she had in the desk drawer or how much was left after she paid the $19,000.00 plus. She stated that the cash was in $100 bills, placed in envelopes with $5,000.00 in each envelope. She thought she had one or two envelopes left after the transaction. No other person witnessed the transaction.

The executor’s attorney repeatedly objected to the plaintiff testifying about the transaction with the deceased, the basis of the objections being the Dead Man’s Statute, T.C.A., § 24-1-203, which provides:

§ 24-1-203. Transactions with decedent or ward. — In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. Provided, if a corporation be a party, this disqualification shall extend to its officers of every grade and its directors.

Two things must concur to bring a case within the operation of this statute and authorize the rejection of the evidence, namely, (1) the proposed witness must be a party to the suit in such way that judgment may be rendered for or against him, and (2) the subject matter of the testimony must be concerning some transaction with or statement by the testator. Montague v. Thomason, 91 Tenn. 168, 18 S.W. 264 (1892), We hold that both requirements are met in the present lawsuit and that the testimony of Mrs. Leffew that she paid Daniel $19,000.00 plus for one-half of the $40,000.00 account is inadmissible.

The plaintiff argues that the executor’s attorney cross-examined Mrs. Lef-few on the matter, thereby waiving any objection. The general rule is that where transactions with the decedent are first developed on direct examination over objection of the representative of the decedent, the objection is not waived by subsequent cross-examination relative to the transaction testified to on direct examination. Nabors v. Gearhiser, 525 S.W.2d 145 (Tenn.1975).

The presumption that Mrs. Leffew owned one-half of the $40,000.00 joint account is totally rebutted by the undisputed proof that Daniel deposited all the money in that account. The inadmissible testimony of Mrs. Leffew being the only evidence offered as to how she obtained a one-half interest in the account, we hold that she has failed to prove any interest in the account and it must be awarded to the executor of Daniel’s estate.

Looking now to the $10,000.00 account, we find that an account was opened with Hamilton National Bank on May 5, 1969, in the amount of $4,700.00. Another deposit of $125.48 was made on August 11, 1969. No other deposits were made, but interest accrued until, on November 10, 1976, there was $7,104.10 in the account, which was closed on that date. The account is in the names of “T.C. Daniel or Katherine Lef-few”. However, the words “or Katherine Leffew” were typed by a different typewriter than the words “T.C. Daniel”. The parties did not clarify just when Mrs. Lef-few’s name was placed on this account; however, it is apparent that it was not typed thereon at the same time as was T.C. Daniel’s name. Mrs. Leffew testified that the $7,104.10 was withdrawn and that she and T.C. Daniel added money equally to that amount and purchased a $10,000.00 certificate from Hamilton National Bank in the names of “Theodore C. Daniel or Mrs. Katherine Leffew”. There was no evidence produced to refute this testimony as to the source of the funds used to purchase the $10,000.00 certificate.

No objection was made to this testimony to the effect that Mrs. Leffew and Daniel equally contributed to raise $2,895.90, which was added to the $7,104.10 taken from the account, with which total amount the $10,000.00 certificate was purchased in their joint names. We, therefore, hold that Mrs. Leffew has established her claim to one-half of $2,895.10, or the amount of $1,447.95.

The presumption that she owned one-half of the $7,104.10 is rebutted. Mrs. Leffew did not testify that she put any amount into the joint account. Considering the fact that the $7,104.10 represents the deposits made in 1969, plus accrued interest; that Mrs. Leffew’s name was not placed on the account book at the same time as Daniel’s name, we hold that the $7,104.10 in the names of both parties was really the property of Daniel, and Mrs. Leffew, in this contest between the joint tenants, has failed to show ownership in her of any part thereof.

IV. INCOMPETENCY OF DANIEL.

The parties and the chancellor treated the competency of Daniel in October and November, 1982, of considerable importance. It was during this time that Daniel appeared at Federal Savings and asked that the $40,000.00 account be changed to his name, individually, and wrote the two notices to the banks asking that Mrs. Lef-few’s name he removed from the accounts. In his Judgment, the chancellor found:

The court is satisfied from a clear preponderance of the evidence that in October and November, 1982, Theodore C. Daniel was not capable of transacting business. He had suffered strokes, was arteriosclerotic, had a chronic kidney disease requiring constant catherters, was wheel-chair bound, aged, and simply incapable of rational thought.

We make no statement concerning agreement or disagreement with the foregoing finding by the chancellor. We do hold that the issue of Daniel’s competency was not, under the pleadings and the facts, a matter requiring the chancellor’s decision and that issue should not have been considered by him.

Regardless of the mental condition of Daniel, neither banking institution made any change in the names on the accounts, paid out no money from either account and took no action of any kind as a result of Daniel’s October 7,1972 request to Federal Savings or his November 16, 1982 notice to both institutions. In her complaint, Mrs. Leffew made the banks parties defendant, but she asked only that they be ordered to pay to her the money on deposit in each account. She made no charge against either institution. She did not allege or attempt to prove any misconduct on the part of the banks. Daniel in his petition to intervene makes no charge against the banks; no misconduct on their part is alleged or proved. Daniel asked that the certificates be returned to him as his sole property. It is also noted that, according to the record, the banks did not even answer the complaint; the chancellor made no order concerning them except to order them to pay out the money as he decreed. We, therefore, hold that the competency of Daniel when he attempted to deal with the banks has no hearing on the lawsuit and is not an issue that should be here decided. We hold that the chancellor erred in determining the issue of Daniel’s ability to transact business and his finding that Daniel was, during the time noted, “incapable of rational thought”. We reverse that decision and leave the issue open should it become important in other matters or proceedings.

V. CONCLUSIONS.

The chancellor’s finding that Katherine Leffew is the owner of the $40,000.00 joint account with Federal Savings is reversed, and that account is adjudged to be the property of the estate of Theodore C. Daniel. The chancellor’s finding that the $10,-000.00 joint account with Hamilton National Bank is the property of Katherine Lef-few is reversed as to $7,104.10 of that account, which amount is adjudged to be the property of the estate of Theodore C. Daniel; the finding is affirmed as to the one-half of the remaining $2,895.90 in that account, the other one-half being the property of the estate of Theodore C. Daniel. The finding by the chancellor that Theodore C. Daniel was incapable of rational thought and not capable of transacting business during October and November 1982, is reversed; no ruling is made on that issue and it remains open. Other matters ruled on by the chancellor are affirmed.

This cause is remanded to the chancery court for a determination of the amounts due each party, including the calculation of accrued interest, and for an order to the two banks to pay out the funds as decreed in this opinion. The cost in this court is adjudged one-half against Mrs. Katherine Leffew and one-half against Ellis Mayes, executor of the estate of Theodore C. Daniel.

GODDARD and FRANKS, JJ., concur.


author: HIGHERS, Judge.

text:
    Louis Evan KLINE, a minor by his father and next friend, Stanley J. KLINE, Plaintiff-Appellant, v. Robert JORDAN, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section at Jackson.
    Nov. 27, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.
    Terry D. Smart and Stanley J. Kline, Memphis, for plaintiff-appellant.
    Albert T. McRae and 0. Douglas Ship-man, Memphis, for defendant-appellee.
   HIGHERS, Judge.

This is an appeal from a summary judgment in favor of the defendant. For the reasons set forth below, we affirm the judgment.

In 1974, Louis Evan Kline was eñr&Hed. in the Atypical Infant Stimulation Prograffi^ of the University of Tennessee Child Development Center. At that time his parents signed a written consent form permitting the child to be observed, photographed and filmed while he was “being interviewed, tested, examined, or otherwise evaluated and/or treated by the members of the Child Development Center professional staff, and their assistants, or their designees.”

In August 1976, the child was enrolled in the United Cerebral Palsy Day Training Center which was administered by the Child Development Center. Another consent form was executed at this time by the father of the child. This form was identical to the previous form and was headed with the words “CHILD DEVELOPMENT CENTER.”

The child, Louis Evan Kline, attended Handicappers, Inc. Day Training Center (the successor-name of the United Cerebral Palsy Day Training Center), and on January 11, 1978, he injured his lip. The director of the program at first called the pediatrician to examine the wound. Upon closer examination she determined that it was a minor injury and that it was not necessary for a medical examination. She thereafter had a conversation with the mother of the child and made the following entry in the progress notes:

Mrs. Kline called to apologize for “abrupt tone of voice,” but asked in the future we have Louis checked by a pediatrician no matter how minor the injury.

On May 7,1979, the child received a head injury while at the Handicappers school, allegedly due to abuse by a member of the staff. The child was immediately seen by Dr. Soto Vera. On May 22, 1979, the defendant, Dr. Robert Jordan, the director of the Child Development Center, who had been away at the time of the incident, examined the child. His examination consisted of looking at the bruise on the child’s head and running his finger over the contusion to check for swelling. Dr. Jordan testified:

Q. Did you touch him?
A. As I recall I think I ran my index finger, just felt across it to see if there was any swelling there.
Q. The purpose for touching him was what?
A. To see if there was any swelling.
Q. Did you otherwise touch Louis Evan Kline?
A. No, I did not.
Q. Did he say anything or respond when you touched him?
A. No, he didn’t. It didn’t seem to bother him in any way at all.
Q. Then what did you do, Doctor?
A. That was all. I just dismissed him.

It is the contention of the plaintiff that this examination by Dr. Jordan constitutes an assault and battery. Both parties maintain that there are no genuine material issues of fact. Each, however, argues that summary judgment should be granted in his favor.

For a cause of action for assault and battery to arise, there must be an absence of consent. Ray v. Scheibert, 484 S.W.2d 63 (Tenn.App.1972). Consent may appear from the circumstances, so that if there was some manifestation of consent upon which the defendant could reasonably rely, he would not be liable. As Prosser has stated, “[cjonsent to an act is simply willingness that it shall occur. Actual willingness, established by competent evidence, will prevent liability; and, if it can ever be proved, will no doubt do so even though the plaintiff has done nothing to manifest it to the defendant. But the converse is also true, that a manifestation of consent, upon which the defendant may reasonably rely, will be equally effective even though there is no willingness in fact. In our society we must perforce rely upon the overt words and acts of others, rather than upon their undisclosed minds. Consent may therefore be manifested by words. The defendant is entitled to rely upon what any reasonable man would understand from the plaintiff's conduct.” W. Prosser, The Law of Torts, § 18 (4th ed., 1971).

The record is clear that Dr. Jordan, as director of the Child Development Center, was responsible for all of the children enrolled in its program, including the Handicappers program. When Dr. Jordan conducted his examination in May 1979, he was aware of the consent forms signed by the Klines and of Mrs. Kline’s oral consent of January 1978. Dr. Jordan further stated, in his deposition, that his responsibility had been explained to the families during orientation. Under the circumstances, we believe that he had a reasonable basis to believe that he had consent to examine the child as he did. Nothing in the record contradicts the reasonableness of his actions.

The order granting summary judgment for the defendant is, therefore, affirmed and costs are taxed against the plaintiff-appellant.

NEARN, P.J. (W.S.), and BROOKS McLEMORE, Special Judge, concur.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. Freeman TROUT, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Nov. 6, 1984.
    William M. Leech, Jr., Atty. Gen. and Reporter, John F. Southworth, Jr., Asst. Atty. Gen., Nashville, for appellee.
    Sue A. Berry, Oak Ridge, for appellant.
   OPINION

O’BRIEN, Judge.

Freeman Trout appeals denial of relief under a writ of habeas corpus filed in Roane County Criminal Court.

Appellant was sentenced to serve two (2) concurrent eleven month and twenty-nine day sentences for misdemeanor offenses in Cause Nos. 7450-7615. At a probation hearing the trial judge directed that defendant was to serve six months in the Roane County Jail less credit for four months jail time.

As nearly as can be determined from this record appellant was sentenced on September 26, 1983. He was released on November 24,1983, having served sixty days after his sentence was pronounced. In the interval, on October 18, 1983, he filed a pro se petition for writ of habeas corpus alleging that his sentence would have expired on October 14, 1983, if he had been given proper credit for good time on his jail sentence. We find no merit to this contention.

T.C.A. Sec. 40-35-302(b), on which appellant argued in the trial court, provides only, as it applies in this case, that he be entitled to pretrial jail credit. The statute otherwise provides a defendant shall be responsible for the entire sentence undiminished by any other sentence credits except those enumerated in the statute. The trial judge gave appellant credit for four months jail time.

T.C.A. Sec. 41-2-111, which defense counsel argues in this Court, gives a defendant sentenced to the county jail or workhouse for any period of time less than one (1) year, credit equal to one-quarter (Vi) of his sentence, for good behavior. Appellant concedes there was no constitutional violation. We hold there was no statutory infraction and the trial judge properly imposed sentence under T.C.A. Sec. 40-35-302.

Appellant questions whether his release from custody renders moot his appeal from denial of his petition for writ of habeas corpus. He was released from custody on November 24, 1983. He served his sentence in full as imposed by the trial judge and was released, after being given credit for his pretrial detention. The trial judge made it clear in granting probation that it was his intent defendant was to serve the full six months of the sentence imposed, less jail time. Appellant accepted the conditions of the probation. In doing so he waived any right to any further deductions from the sentence imposed by the court. The order of the trial court in dismissing the petition for writ of habeas corpus was correct.

The appeal is dismissed.

TATUM and BYERS, JJ., concur.


text:
    STATE of Tennessee, Appellee, v. Evan Rhea BANNER, Appellant.
    Court of Criminal Appeals of Tennessee.
    Nov. 7, 1984.
    William M. Leech, Jr., Atty. Gen. & Reporter, John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Edward Sempkowski, Asst. Dist. Atty. Gen., Morristown, for ap-pellee.
    Douglas R. Beier, Morristown, for appellant.
   OPINION

O’BRIEN, Judge.

This is an Appeal of Right from the judgment of the Hamblen County Criminal Court convicting the defendant of unlawful possession of marijuana. The trial judge fixed the punishment at eleven months and twenty-nine days in the Hamblen County Jail and a fine of $50.

The sole issue presented by the appeal is whether the trial court erred in failing to grant defendant’s motion to suppress the evidence seized without a search warrant on August 31, 1982.

The facts are that Detective Sam Cook of the Morristown Police Department received information at his home, August 31, 1982 at about 8 p.m., from a person known to him to be a proven reliable informant who had furnished him in the past with information leading to arrests and convictions, that the defendant Evan Rhea Banner, was at the Convenient Food Market on Lincoln Avenue driving a green Ford truck, license number 19-SY44, and that the defendant had approximately three (3) pounds of marijuana in the truck trying to sell it. After unsuccessfully trying to locate his partner, the officer cruised the area and located the defendant’s truck at about 9 p.m. parked in a driveway of a private home. Officer Cook parked his unmarked car on the public street and watched defendant’s truck for approximately 30 minutes. During that time, he tried to locate other officers to provide a back-up for him but was unable to do so. At about 9:30 p.m. the officer observed the defendant and two other persons exit a house and after about five minutes, the defendant and one of the persons entered the truck and drove away. The defendant was driving and the passenger was holding a beer or whiskey bottle in his hand. Officer Cook followed the truck for a short distance and turned on his blue lights and siren. The truck immediately increased its speed and the officer gave chase. At one point, the truck slowed down allowing- the passenger to jump out, and throwing down the beer or whiskey bottle, the passenger ran away and was not seen again. At that time, Officer Cook was able to exit his car and make his way to the side of the cab of the truck where the defendant was vigorously pumping the accelerator trying to drive away. The officer pulled his pistol and forced the defendant to stop.

Standing on the running board the officer observed on the floor of the truck an open cardboard box containing what appeared to be several bags of marijuana. He placed the defendant under arrest and searched him. A small bag of marijuana was found in his pocket. The defendant disclaimed any knowledge about the marijuana after being advised of his Miranda rights. There were 29 bags of marijuana in the cardboard box totaling approximately two pounds.

The defendant argues that the warrant-less stop and subsequent arrest and seizure of the marijuana was without probable cause due to the fact that the green truck was not at the Convenient Food Market when Officer Cook got there. Further, the officer did not observe the defendant doing anything illegal thus leaving the informant’s tip uncorroborated.

The State contends that under the “totality of circumstances” test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the officer had probable cause to believe that the green truck was carrying marijuana as his informant had stated and was legally authorized to arrest the defendant. The failure of the truck to be at the specified location was immaterial in light of the total circumstances justifying the stop and arrest.

The trial judge ruled that the police officer had probable cause to arrest the defendant and there were exigent circumstances present. In Illinois v. Gates, supra, the court said:

“We agree with the Illinois Supreme Court that an informant’s veracity, reliability and basis of knowledge are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case, which the opinion of the Illinois Supreme Court would imply. Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place”.

The court went on to say in that case quoting from the prior case of Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949) that:

“[T]he probable cause standard is ... a practical, non-technical conception. In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” Illinois v. Gates, supra, p. 2328.

The issue in this case involves a warrant-less stop of a vehicle, the subsequent arrest of the driver, and search and seizure of evidence seen by the police officer in plain view on the floor board of the vehicle. The seizure of the marijuana must rest initially upon the validity of the stop.

“A founded suspicion is all that is necessary to justify a brief detention of a person in the course of a routine investigation — some basis from which the Court can determine that the detention was not arbitrary or harassing”. State v. Goad, 549 S.W.2d 377, 379 (Tenn.1977); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

As we view the evidence, the facts and circumstances clearly warranted the police officer to make an investigative stop of the vehicle. He was possessed of specific articulable factual information, from a known informant whose reliability and veracity had been proven in the past, that the defendant by name was selling marijuana from his truck. The detective knew the defendant’s name, the color and make of the truck, the license number of the vehicle and that defendant had about three pounds of marijuana which he had been trying to sell at a specific location a short time before on the same day. When the truck began driving away after the officer had been observing it for about half an hour, the officer determined he must stop the truck in order to check out the information he possessed. The officer turned on the blue lights and siren. The driver attempted to escape by speeding up rather than stopping. Such evasive conduct by the defendant served to corroborate the informant’s tip. Furtive conduct on the part of the defendant is a circumstance to be considered by the officer to justify an investigative stop. See Hawkins v. State, 543 S.W.2d 606 (Tenn.Cr.App.1976); State v. Shrum, 643 S.W.2d 891 (Tenn.1982).

“... The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.... ” United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975).

In Hawkins v. State, supra, p. 609, this Court said:

“This ‘reasonable suspicion’ basis for a temporary investigative stop (“Terry stop”) was upheld in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). There the Court said:
“The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. 407 U.S. 145-146, 92 S.Ct. at 1923 (citation omitted)”.

We conclude that the officer was warranted in stopping the defendant’s truck for further investigation based upon all the facts and circumstances appearing to him at the time. When the defendant defied the officer’s signal to pull over, and sped away, the officer had no choice other than to chase down the vehicle and stop it using all reasonable means necessary to do so including drawing his pistol. The proof shows that even after the officer went to the cab of the truck and ordered the defendant to stop, the defendant was still endeavoring to leave. Upon spying the cardboard box and its contents on the floor of the truck, the officer at that time possessed probable cause to arrest the defendant. The United States Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) said:

"... Probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’, Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).”

A warrantless search of the vehicle is permitted where the officer has probable cause to believe that the vehicle is carrying contraband and there are exigent circumstances. United State v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). State v. Shrum, 643 S.W.2d 891, 893 (Tenn.1982). The demonstrated mobility of the truck constituted ample evidence of the required exigent circumstances. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, supra; Hawkins v. State, supra. The search of the defendant’s person incident to the arrest was proper. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

We hold that the trial court correctly refused to suppress the evidence and accordingly affirm the judgment.

BYERS, J., and WILLIAM H. WILLIAMS, Special Judge, concur.


author: DUNCAN, Judge.

text:
    STATE of Tennessee, Appellee, v. Randy JOHNSON, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Nov. 16, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 28, 1985.

      Howard L. Upchurch, Pikeville, for appellant.
    W.J. Michael Cody, Atty. Gen., Kevin Steiling, Asst. Atty. Gen., Nashville, J. William Pope, Dist. Atty. Gen., Pikeville, L. Michael Caputo, Asst. Dist. Atty. Gen., Jasper, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Randy Johnson, was convicted of simple robbery and was sentenced to the Department of Corrections as a Range I standard offender for ten (10) years. The trial court ordered this sentence to be served consecutively to other sentences which had been imposed upon the defendant for prior convictions. A co-defendant, Michael Johnson, was also convicted but he is not a party to this appeal. Another codefendant, Mitchell S. Berry, had previously pled guilty, and he was called as a State’s witness in this case. Also, another codefendant, Elvert Hendon, was granted a severance and he testified as a State’s witness.

In this appeal, the defendant, Randy Johnson, says the trial court erred in denying certain of his motions, and also contests certain other rulings made by the trial court during the trial. We find no merit to his issues.

First, we will consider the defendant’s contention that the trial court erred in denying his motion for judgment of acquittal, made at the close of the State’s proof. We note that the defendant rested at the end of the State’s proof.

The State’s evidence showed that on the night of August 17, 1982, at approximately 9:50 p.m., Nell Creasman, an employee of a Stop and Go Shop, was robbed by Mitchell Berry of the sum of approximately one hundred ninety-five dollars ($195). Berry was armed with a shotgun. The police arrived on the scene a few minutes after the robbery, saw a car leaving the area at a high rate of speed, and then pursued and stopped the vehicle. Michael Johnson was the driver of the car, the defendant was riding on the passenger side, and Elvert Hendon was in the back seat.

The defendant and his companions were taken to the police station, where the defendant gave a statement to the effect that he, Berry and Hendon were at Hendon’s house earlier in the day at which time Berry said “he needed some money and that he was going to rob something.” Berry had a shotgun and all of them got into the car. The defendant said he told Berry “they’d better not rob that place” as he knew the woman (Ms. Creasman), but that Berry got out of the car and had the shotgun with him. The defendant also stated to the police that he and his companions saw Berry “running down the road and we saw the police car coming and told Scott [Berry] to keep running and the law stopped us.”

Other evidence showed that the victim, Ms. Creasman, recognized Berry as the robber when he returned to the store. She called the police and Berry was arrested.

Mary Creasman, the daughter of the victim, had dated the defendant. She saw the defendant at his house on the day of the robbery. Hendon and Berry were there also. She saw a shotgun at the defendant’s residence. The defendant picked it up and put it in the bedroom.

Sheriff Avery Hickey went to the location where the vehicle had been stopped. He asked the defendant what had happened, and the defendant said “Berry got out of the car with a shotgun.”

Elvert Hendon, a codefendant, whose case had been severed, testified for the State. He said that when he, Michael Johnson, Berry and the defendant approached the store in their vehicle, the defendant told Berry that “the old lady was blind ... and would be easy to hit.” Berry had the shotgun as he left the car, and Berry told Michael Johnson to pick him up around the corner from the store after he committed the robbery. Hendon further testified that when their car reached the corner, they saw the police, and that as Berry left the store and approached the car, the defendant signaled to Berry with his hands “to get back.”

On cross-examination, Hendon admitted that he had previously told defense attorney Howard Upchurch that the defendant had nothing to do with the robbery. According to Hendon he said this because he was scared.

Hendon’s testimony clearly implicates the defendant in this robbery as an aider and abettor. His testimony is amply corroborated by the defendant’s own admissions to the police and by the other direct and circumstantial evidence. In fact, the evidence, apart from Hendon’s testimony, was sufficient to warrant the jury’s verdict finding the defendant guilty beyond a reasonable doubt.

Unquestionably, the State’s proof meets the evidentiary tests as required by T.R.A.P. 13(e) and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We find that the trial court correctly overruled the defendant’s motion for judgment of acquittal.

Next, the defendant contends that the trial court should have dismissed the indictment because he was not arraigned until five (5) days before trial.

Tenn.R.Crim.P. 10 states that before “a person is tried, he shall be called into open court and arraigned. The rule mentions no time period between arraignment before trial. We find that the defendant was properly arraigned. Furthermore, we point out that the defendant was indicted on December 13, 1982, and was not tried until October 26, 1983. The Honorable Howard Upchurch was appointed to represent him on January 19, 1983. Thus, his attorney had several months prior to trial to prepare his defense and to file any desired motions.

We find that the trial court properly denied the defendant’s motion to dismiss the indictment.

Another contention by the defendant is that the trial court should have sustained his counsel’s motion to be permitted to withdraw from the case.

Prior to trial, Elvert Hendon had told Attorney Upchurch that the defendant had nothing to do with the case. Consequently, at the outset of the trial, when Mr. Upchurch learned Hendon would be a witness for the State, he made a motion to withdraw so he could be available to testify if Hendon testified contrary to his prior statement.

In denying defense counsel’s request to withdraw, the trial court indicated it could not delay the proceedings on mere possibilities of what might occur in the trial. Obviously, the motion was premature at that time.

An attorney should withdraw from the trial of a case where he foresees before trial that he will be a witness. Rules of the Supreme Court, Rule 8, D.R. 5-101(B), D.R. 5-102, Canon 5, Code of Professional Responsibility. However, our Court has held that when the need for an attorney to testify is brought about by testimony of other witnesses during trial, then his competency to testify is discretionary with the trial court. Bowman v. State, 598 S.W.2d 809 (Tenn.Cr.App.1980).

The defendant appears to argue that the trial court would not permit his attorney to testify. Some discussion was had about this matter after Hendon testified, but the record is unclear as to this matter, and we do not find in the record any express request by defense counsel that he be permitted to testify and no express ruling by the trial court that he could not testify. At any rate, the record shows that Hendon admitted before the jury the inconsistency between his trial testimony and his prior statement to Mr. Upchurch. In view of this admission by Hendon, there remained no basis for any impeachment testimony.

From all of the above, we find that the trial court did not err in declining Mr. Up-church’s motion to withdraw.

Additionally, we find that the trial court properly ruled that Elvert Hendon was competent to testify.

While the record showed that Hendon had received some treatment for mental deficiencies and was mentally retarded to some degree, the trial court determined thafe the witness understood the nature of an oath and was otherwise sufficiently competent to testify. The record supports the trial court’s ruling. The trial court did not abuse its discretion in permitting Hen-don to testify. Surcey v. State, 4 Tenn.Cr.App. 542, 474 S.W.2d 167 (1971).

Next, the defendant says the trial court erred in allowing the State to cross-examine Mitchell Scott Berry as a hostile witness.

Berry had given a statement to two (2) police officers in which he incriminated the defendant in the robbery. The State called Berry as a witness, and before the jury, he testified that he committed the robbery by himself; that no one was with him; and that he was the one who planned the robbery.

Thereafter, at a jury-out hearing, Berry admitted that he had given a statement to the police but denied that he had told them anything that incriminated the defendant. Berry further testified that he had told representatives from the district attorney general’s office a few days before the trial that he would not testify, but acknowledged that he did not tell them that he would repudiate his prior statement.

The trial court ruled that the State could cross-examine Berry before the jury on the inconsistencies between his trial testimony and his former statement. Subsequently, before the jury, the State cross-examined Berry on several facets of his prior statement regarding what he had told the police about the defendant’s participation in the robbery, and he denied that he had told the police anything that implicated the defendant.

The general rule is that when a party calls a witness who turns hostile, such party may impeach the witness, if the witness is indispensible or takes the party by surprise. Montesi v. State, 220 Tenn. 354, 417 S.W.2d 554 (1967); King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948); State v. Marlow, 665 S.W.2d 410 (Tenn.Cr.App.1983). The hostility of. the witness may be shown through questioning the witness or by other circumstances. Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449 (1965).

Further, the rule is that impeachment of one’s own witness is limited to those cases “where his testimony is direct contradiction to his prior statements, and he cannot be impeached where he is merely reluctant to give testimony or unless the testimony is actually prejudicial.” (emphasis added). King v. State, supra, 187 Tenn. at 436, 215 S.W.2d 813; Mays v. State, 495 S.W.2d 833, at 836-37 (Tenn.Cr.App.1972).

The defendant argues that the State was not taken by surprise in this case because Berry had told the State’s representatives prior to trial that he would not testify. However, we note that Berry acknowledged at the jury-out hearing that he did not tell the State’s representatives that he would repudiate his prior statement that the defendant was a participant in the robbery.

Thus, while the State was aware that Berry was reluctant to appear as a witness, it had no advance warning that Berry, if required to appear, would repudiate his pri- or statement. Obviously, when Berry was called, he was certainly not reluctant to testify because as soon as he took the stand before the jury, he immediately gave testimony that he was the only participant in the crime and that the defendant had nothing to do with it, all such testimony being totally inconsistent with his prior statement and being highly prejudicial to the State.

Therefore, under all of the foregoing circumstances, we hold that the trial court did not abuse its discretion in allowing the State to cross-examine Berry regarding the inconsistencies between his trial testimony and his prior statement.

Also, the defendant complains about the admission into evidence of his statement to Sheriff Avery Hickey. When the sheriff appeared at the scene where the suspect car had been-stopped, he asked the defendant what had happened. The defendant responded by saying that Berry had gotten out of the car with a shotgun.

Responses to general on-the-scene questioning by an officer during the fact finding process as to facts surrounding a crime are admissible in evidence. Braziel v. State, 529 S.W.2d 501 (Tenn.Cr.App.1975); Gordon v. State, 478 S.W.2d 911 (Tenn.Cr.App.1971). Furthermore, we point out that after the defendant was taken into custody, and after receiving his Miranda warnings, the defendant made the same statement to T.B.I. Agent Bill Barbrow.

We hold Sheriff Avery’s testimony about this isolated statement by the defendant was properly admitted into evidence.

Finally, we find that the trial court did not err in permitting the State to recall Sheriff Hickey after previously tendering him as a witness.

The recall of a witness to testify a second time is within the discretion of the trial judge. Lillard v. State, 528 S.W.2d 207 (Tenn.Cr.App.1975).

Part of Sheriff Hickey’s initial testimony precipitated a hearing out of the presence of the jury. Later the witness was recalled to testify further before the jury. «

We find no abuse of discretion on the part of the trial court in allowing Sheriff Hickey’s further testimony.

We find no reversible errors in this record. The judgment of the trial court is affirmed.

TATUM and CORNELIUS, JJ., concur.


author: ROBERTSON, Justice.

text:
    Sam C. BASHARA, Petitioner, v. BAPTIST MEMORIAL HOSPITAL SYSTEM, Respondent.
    No. C-3187.
    Supreme Court of Texas.
    Feb. 6, 1985.

      San C. Bashara, San Antonio, for petitioner.
    Ertel & Prashner, E.S. Prashner, San Antonio, for respondent.
   ROBERTSON, Justice.

This case involves a quantum meruit claim for attorneys’ fees from the sum recovered and allocated to payment of a hospital lien. Tex.Prop.Code Ann. ch. 55 (Vernon 1983).

Kelley F. Axtell was involved in an automobile accident with Jody Maxwell Toombs. Axtell retained petitioner, Sam C. Bashara, an attorney, whose efforts resulted in a settlement agreement with Toomb’s insurance carrier, Texas Farmers Insurance Company, for the policy limit of $50,-000.

While suit was pending, and before the settlement was reached, respondent, Baptist Memorial Hospital System, filed a hospital lien for charges incurred in treating Axtell’s injuries. Farmers issued two drafts in payment of the total amount of the settlement. One draft was for $34,-789.55, payable to Axtell and Bashara. The other draft was for $15,210.45, the amount of the hospital lien, made payable to Axtell, Bashara and Baptist Hospital.

A dispute arose over distribution of the proceeds of the latter draft. Attorney Bashara claimed a share of the proceeds; Baptist Hospital refused to recognize the claim and filed the instant suit against Farmers. Axtell and Bashara intervened, respectively seeking a reduction in the overall amount of the lien and quantum meruit attorneys’ fees for creating the fund of money from which Baptist Hospital recovered. Farmers filed a bill of inter-pleader, and requested its own attorneys’ fees in the action.

The trial court awarded $2,885.00 to Ax-tell, as a reduction in the amount of the hospital lien, $750.00 to Farmers’ attorney as fees for filing the interpleader, $7,720.83 to Baptist Hospital, and $3,854.62 to Bash-ara as a quantum meruit recovery from Baptist Hospital’s lien payment, for services rendered in effecting the original settlement of Axtell’s cause of action.

Baptist Hospital appealed, limiting its appeal to that portion of the judgment rendered against it for Bashara’s attorneys’ fees. Tex.R.Civ.P. 353. The court of appeals reversed and rendered, holding that conflict of interest problems precluded recovery of attorneys’ fees from Baptist Hospital. 685 S.W.2d 352.

This is a case of first impression in Texas, presenting the question whether a plaintiff’s attorney can enforce a quantum meruit claim against a health care provider, thereby reducing the amount otherwise recoverable by virtue of a hospital lien. We hold that such a claim is precluded as a matter of law, and thus affirm the decision of the court of appeals.

Attorney Bashara suggests that Baptist Hospital actively obstructed the progress of the suit, providing inaccurate information and charging excessively for copies of the hospital records. We note the provision in the hospital lien statute that “[o]n request ... a hospital shall as promptly as possible make available for the attorney’s examination its records concerning the services provided to the injured individual,” subject only to “reasonable rules” as the hospital shall prescribe. Tex.Prop.Code Ann. § 55.008(a) and (b) (Vernon 1983). No point of error, or written or oral argument of parties, however, has been directed to the question of whether lack of cooperation can result in a waiver of the lien, and we decline to decide the point in this cause. Tex.R.Civ.P. 469.

We are also not called upon to decide, nor do we decide, what the result would be m a case where the plaintiff’s recovery is insufficient to pay both his contractual obligation to his attorney and his debt to the hospital for medical services rendered. See generally Note, Hospital Liens, 20 Baylor L.Rev. 365, 369-370 (1968). It is undisputed that the recovery in the instant case is more than sufficient to discharge fully both the plaintiffs obligation to his attorney and his debt to Baptist Hospital. The issue here is simply whether Baptist Hospital should be required to shoulder a part of plaintiffs lawyer’s charges for services rendered to his client.

The purpose of a hospital lien statute is to provide hospitals an additional method of securing payment for medical services, thus encouraging the prompt and adequate treatment of accident victims.

“The legislature’s intent in passing the statute was to provide for payment to the hospital.... Giving the hospital a separate cause of action to satisfy its lien insures that an accident victim will receive aid and that the hospital will be reimbursed for its services, thus reducing hospital costs.”

Baylor Univ. Med. Center v. Borders, 581 S.W.2d 731, 733 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.). The 1933 act creating hospital liens stated that “the hospitals of the State of Texas are losing vast sums of money which amounts to the taking of property without compensation therefor.” Baylor Univ. Med. Center v. Travelers Ins. Co., 587 S.W.2d 501, 504 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.); see also Comment, Liens—The New York Hospital Lien Law, 37 Colum.L.Rev. 1036, 1036 (1937) (characterizing Texas’ law as “an attempt to alleviate the financial burdens on hospitals caused by the increase of nonpaying accident cases in the past few years”).

Although the statute does not specifically address the situation presented in this case, it is replete with language that the hospital recover the full amount of its lien, subject only to the right to question the reasonableness of the charges comprising the lien. The statute states that “[t]he lien is for the amount of the hospital’s charges for services provided to the injured individual_” Tex.Prop.Code Ann. § 55.-002 (Vernon 1983). In the context of this case, it is particularly interesting to observe the statutory provision that “[a] release of a cause of action or judgment to which the lien may attach is not valid unless ... the hospital’s charges were paid in full," among other alternatives. Tex. Prop.Code Ann. § 55.007 (Vernon 1983) (emphasis added). Thus, while not conclusive, the language and intent of the statute militate strongly against permitting recovery of a patient’s attorney’s fees from the corpus of the hospital lien.

Although this is a novel question in Texas, highly similar claims have been advanced in a number of other states with hospital lien statutes. While no such cases were cited in briefs of parties or in oral argument, this court cannot help but note an apparent unanimity of opinion on the subject. Beginning with the Supreme Court of Montana in Sisters of Charity of Providence of Montana v. Nichols, 157 Mont. 106, 483 P.2d 279 (1971), a succession of recent decisions by unanimous courts have rejected claims by plaintiffs’ attorneys to compensation from the corpus of a hospital lien. See, e.g., Crowder v. Dade County, 415 So.2d 732 (Fla.App.1982) (per curiam); Maynard v. Parker, 75 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298 (1979); Broadlawns Polk County Hospital v. Estate of Major, 271 N.W.2d 714 (Iowa 1978); Hillcrest Med. Center v. Fleming, 643 P.2d 868 (Okla.Ct.App.1982); see also generally Annot., 25 A.L.R.3d 858 (1969). While these decisions are not controlling on this court, they have addressed virtually every argument made by attorney Bashara in this appeal, and thus deserve careful consideration.

Petitioner relies on three arguments to support his claim for attorneys’ fees: the theory of quantum meruit, the “common fund” doctrine, and an analogy to third party actions under workers’ compensation statutes. These will be discussed in turn.

The most appealing argument, and one found persuasive by the trial court, is that attorney Bashara has presented a quantum meruit claim against Baptist Hospital. This theory of recovery is founded in the principle of unjust enrichment. The elements of a quantum meruit claim include proof that:

“1) valuable services were rendered or materials furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.”

City of Ingleside v. Stewart, 554 S.W.2d 939 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n.r.e.) (citations omitted). At first blush, the quantum meruit approach has some appeal. Mr. Bashara’s efforts certainly benefited Baptist Hospital, in that he brought about the settlement with Farmers, the proceeds of which were used to discharge the lien. Had the hospital retained Bashara to collect its debt from Axtell, Bashara would undoubtedly be entitled to compensation.

It is not enough to show that attorney Bashara’s efforts benefited Baptist Hospital, however. Those efforts must have been undertaken “for the person sought to be charged.” City of Ingleside, 554 S.W.2d at 943. It is well settled that “[n]o one can legally claim compensation for ... incidental benefits and advantages to one, flowing to him on account of services rendered to another by whom the attorney may have been employed.” Landman v. State, 97 S.W.2d 264, 265 (Tex.Civ.App.—El Paso 1936, writ ref’d).

Although Baptist Hospital may well have received benefits traceable to Bashara’s efforts on Kelley Axtell’s behalf, those benefits are only incidental, and create no claim for compensation. The point was explained succinctly by the Supreme Court of Montana:

“The attorneys here simply performed the services they were obligated to perform under their employment contract with their client, the accident victim. The client received the benefit of her attorneys’ services in the form of accident settlement proceeds from which she could pay the hospital bill she owed to the hospital and discharge its lien. The fact that an incidental benefit was also received by the hospital from her attorneys’ services in the form of settlement proceeds from which its bill could be paid does not, in itself, create an implied contract by the hospital to pay her attorneys for their services.”

Sisters of Charity, 483 P.2d at 283; accord Broadlawns Polk County Hospital v. Estate of Major, 271 N.W.2d 714, 716 (Iowa 1978).

Petitioner Bashara also urges application of the “common fund” doctrine, as exemplified by this court’s decision in Knebel v. Capital Nat’l Bank in Austin, 518 S.W.2d 795 (Tex.1974). The doctrine is in many ways similar to quantum meruit, and the arguments just discussed are equally persuasive on this point. It has been observed that

“This rule rests upon the ground that where one litigant has borne the burden and expense of the litigation that has inured to the benefit of others as well as to himself, those who have shared in the benefits should contribute to the expense.”

Annot., 49 A.L.R. 1149, 1152 (1927). While Baptist Hospital has “benefited” in a sense from Bashara’s creation of the settlement fund, the hospital’s lien is not co-equal with the injured plaintiff’s claim of right to the settlement proceeds, but results from the debtor-creditor relationship between the two.

We agree with a number of other courts that there is no reason to expand the “common fund” doctrine to this situation.

‘[T]he benefit to the hospital resulting from [the attorney’s] services was merely incidental to the primary purpose of obtaining compensation for plaintiff’s injuries. ... We cannot justify extending the common fund doctrine to require a mortgagee or a furniture store or any other creditor of a plaintiff to contribute to the fees of the plaintiff’s attorney if the funds recovered by litigation are used to satisfy the plaintiff’s obligations.”

Maynard v. Parker, 54 Ill.App.3d 141, 11 Ill.Dec. 898, 901, 369 N.E.2d 352, 355 (1977), aff'd, 755 Ill.2d 73, 25 Ill.Dec. 642, 387 N.E.2d 298 (1979); see also Wheaton v. Department of Public Aid, 92 Ill.App.3d 1084, 48 Ill.Dec. 507, 416 N.E.2d 780 (1981); Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974) (generally disapproving the doctrine).

Petitioner’s final argument is an analogy to Tex.Rev.Civ.Stat.Ann. art. 8307 § 6a (Vernon 1967), whereby a subrogated workers’ compensation carrier may be required to bear part of the costs of prosecuting the injured worker’s suit. The analogy is inapt. While' attorneys’ fees in a workers’ compensation setting are mandated by statute, the language and intent of the statute at issue here, as discussed earlier, is to the contrary. In addition, while the insurance carrier’s recovery in a workers’ compensation case is based on subrogation principles, whereby the carrier “stands in the shoes” of the employee, with no greater rights than the employee himself has, the hospital’s rights are based on the independent debtor-creditor relationship. Either distinction is sufficient; both have been found persuasive by other courts. See, e.g., Broadlawns Polk County Hospital v. Estate of Major, 271 N.W.2d 714, 716 (Iowa 1978); Sisters of Charity of Providence of Montana v. Nichols, 157 Mont. 106, 483 P.2d 279, 283 (1971).

The decision of the court of appeals is affirmed.


author: KILGARLIN, Justice.

text:
    Mary C. WILLIAMS, Petitioner, v. CULLEN CENTER BANK & TRUST, Respondent.
    No. C-3273.
    Supreme Court of Texas.
    Feb. 20, 1985.

      Baker & Botts, Mary C. Williams, Houston, for petitioner.
    Margraves, Schueler & Parker, Craig E. Power, Houston, for respondent.
   KILGARLIN, Justice.

Absent a written indemnity agreement or proof of benefit, can a nondrawing cosigner be liable for an overdraft in a joint checking account? The trial court said yes, and granted Cullen Center Bank & Trust a summary judgment against Mary C. Williams in the amount of $4,242.29 with an additional $1,600 allowed as attorney’s fees. The court of appeals affirmed that judgment. 671 S.W.2d 711. We reverse the judgments of the courts below and remand this cause to the trial court.

Mary C. Williams maintained a checking account with T.M. Williams at Cullen Center. Although they were joint signers on the account, undisputed summary judgment proof showed that Mary C. Williams had never signed a check on the account nor ever made a withdrawal from that account. Somehow, the bank discovered an overdraft in the account. How the overdraft occurred is not known. Cullen Center’s summary judgment evidence merely reflects that as of April 7, 1981, there was a negative balance in the account of $5,119.79. That negative balance was reduced by a $900 deposit on August 13, 1981, perhaps in response to a letter written to the Williamses two days previously advising of the negative balance.

Cullen Center filed suit on August 28, 1981, against both T.M. Williams and Mary C. Williams. Although served, T.M. Williams did not answer, and an interlocutory default judgment was taken as to him. After the summary judgment against Mary C. Williams was signed, a joint and several judgment was entered against both defendants. Only Mary C. Williams appealed.

Before embarking upon a discussion of the law in this case, we should point out that there is no contention that Mary C. Williams is liable under a community property theory as set forth in Tex.Fam.Code Ann. § 5.61. Neither are there summary judgment allegations that would make this court’s holding in Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975), applicable. Indeed, there is no summary judgment proof that T.M. Williams is or was in fact the husband of Mary C. Williams. Therefore, this case must be decided on the basis of the Uniform Commercial Code, and applicable principles of agency, partnership and joint tenancy law.

In support of its position, Cullen Center relies upon Tex.Bus. & Com.Code Ann. § 4.401(a), which provides “[a]s against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.” This provision entitles the bank to treat an overdraft as a loan by the bank, which carries with it an implied promise to repay.

Ms. Williams, on the other hand, argues that her signature alone on the account card is insufficient to establish her liability. She contends that the bank should be required to prove she benefited from the overdraft or participated in creating it. Since the bank’s records do not reveal who created the overdraft, and since Ms. Williams positively avers that it was not she, we must decide if “customer” means the drawer of the item creating the overdraft, or if it can simply be one of the cosigners on the signature card. There are no Texas cases precisely in point.

However, several cases from other jurisdictions, as well as some commentators, support Ms. Williams’ position. Professors White and Summers in their Handbook of the Law Under the Uniform Commercial Code at 662 (2d ed. 1980) recognize that under some circumstances, one party should be liable for his cosignatory’s overdraft, such as when both parties enjoyed the use of the funds or when an explicit agreement existed that each would be liable. However, they conclude by commenting, “[i]n general we would suggest that the agreement [as to liability] should be manifested by something stronger than the fine print on a deposit agreement before the bank should be permitted to hold a co-signatory on overdrafts of the other when the benefits of the overdraft were enjoyed only by one.” Id.

Another commentator states “[t]he Code does not alter the prior rule that in the case of a joint account one cosignatory cannot be held beyond the balance in the account and that a joint deposit does not make each cosignatory the agent of the other with respect to the making of overdrafts.” 3 R. Anderson, Uniform Commercial Code § 4-401:4 (1971).

Cases from other jurisdictions interpreting the Uniform Commercial Code favor Ms. Williams’ position. Cambridge Trust Co. v. Carney, 115 N.H. 94, 333 A.2d 442 (1975), acknowledges that commentators are divided in their opinion as to the liability of a nondrawing cosigner. The New Hampshire court cites the paucity of case law from other jurisdictions on this subject, and concludes “[sjince Mrs. Carney neither participated in the transaction creating the overdraft nor received funds as a result of it, she cannot be held liable for payment of it.” In National Bank of Slatington v. Derhammer (No. 1), 16 Pa.D. & C.2d 286 (1958), a Pennsylvania lower court observed that were the bank’s position to be upheld, “[ejvery cosignature would constitute a partnership without limits as to the liability of one partner for the machinations of the other.” Id. at 288.

United States Trust Company of New York v. McSweeney, 91 A.D.2d 7, 457 N.Y.Supp.2d 276 (1982), offers a well reasoned opinion favorable to Ms. Williams. There, the bank argued that Mrs. McSweeney should have been liable along with her husband for the amount of the overdraft because a broad construction should be given to the terms “account” and “customer” in the U.C.C. The New York appellate court disagreed, stating:

The rationale for this holding is found in the law of agency and joint tenancy: ‘The mere fact of ownership of undivided interests in the same property by two or more persons does not create an agency relationship between them, and ordinarily one co-tenant cannot bind the other co-tenants by contracts with third persons, unless he is duly authorized or unless they ratify or acquiesce in his act.’ (24 N.Y.Jur.2d, Cotenancy and Partition § 83 [citations omitted]).

457 N.Y.Supp.2d at 279.

Cullen Center relies upon two cases with holdings adverse to Ms. Williams’ position. The first, a pre-U.C.C. case, is Popp v. Exchange Bank, 189 Cal. 296, 208 P. 113 (1922). In that case Lenora S. Popp and Jay Popp were clearly identified as husband and wife. Without providing any reasoning behind its decision, the California Supreme Court stated that although Mrs. Popp thought she had never drawn any checks against the account, “nevertheless the overdraft was in law as much her indebtedness as that of her husband....” 208 P. at 115. Whether the basis of this opinion rests in the community property laws of California or on some other grounds is not revealed.

The other case against Ms. Williams was decided after the 1965 enactment of the Uniform Commercial Code in Missouri. In Bremen Bank and Trust Co. v. Bogdan, 498 S.W.2d 306 (Mo.Ct.App.1973), Mrs. Bogdan was a signatory on a business account with Mr. Bogdan, but she claimed it was only as a matter of convenience. Without expressing a rationale for its holding, the Missouri Court of Appeals stated “[nevertheless, there was ample evidence to support the finding by the jury that Mrs. Bogdan as a joint tenant was liable on the overdraft.” However, the Missouri court relied not on the U.C.C. for its decision, but upon Mo.Rev.St. § 362.470, which is a separate provision governing banks. Thus, although decided after adoption of the U.C.C. in Missouri, the Bremen Bank and Trust holding is easily distinguishable from our case.

Additionally, some commentators also agree with Cullen Center’s position. While conceding that most states have implied that the promise to repay the overdraft is imposed only on the drawer and not on all members of an overdrawn joint account, Dean William D. Hawkland advocates that the broad U.C.C. definitions of “account” and “customer” make any account cosignatory liable. 1 Hawkland, A Transactional Guide to the Uniform Commercial Code at 385 (1964). Section 4-104 of the code defines “account” as meaning “any account with a bank and includes a checking, time, interest or savings account.” “Customer” is defined as meaning “any person having an account with a bank or for whom a bank has agreed to collect items and includes a bank carrying an account with another bank.” Hawkland rationalizes that as subsection 1 (subsection [a] in the Texas Business and Commerce Code) “speaks in terms of charging the account rather than in terms of charging the actual drawer of the check, it is believed that the subsection authorizes the bank to charge the payment on overdraft to all members of an overdrawn joint account.”

Professor Barkley Clark arrives at the same conclusion as Dean Hawkland. Clark, The Law of Bank Deposits, Collections and Credit Cards 2-81, 82 (1981). Clark, likewise, recognizes that decisional law is adverse to his position, and recommends that the only prudent course for a bank is to place express language in the joint deposit agreement making one cosigner liable for the overdrafts of the other. A casenote, Liability for Overdrafts of a Joint Bank Account Under the UCC, in B.Y.U.L.Rev. 499 (1976) points out that the code itself:

[Sjtates that ‘[t]his Act shall be liberally construed and applied to promote its underlying purposes and policies.’ One of those underlying purposes and policies is ‘to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties.’ To the extent the code encourages banks to pay overdrafts by allowing them to recover from the maker, it tends to promote this underlying purpose of expanding commercial practices.

Id. at 507. The same casenote reasons that U.C.C. § 4-401(1) was designed to both permit banks to pay overdrafts and to protect banks by giving them the legal right to recover the amount of overdrafts they pay. The note suggests that if all cosignatories are not liable, then “the frequency with which banks pay overdrafts of joint accounts would be reduced, and the underlying purpose of the U.C.C. to continue the expansion of commercial practices would not be served.” Id. at 508.

Although Dean Hawkland is correct that the code should be construed broadly, that policy does not require that legal relationships should be written into the code where none exist. Indeed, one commentator has flatly rejected the Hawkland-Clark position for this reason, saying:

To construe the Code to impose liability on each cosignatory of a joint account for all overdrafts would in effect establish an implied partnership without limit as to the liability of one signatory for loans obtained by another. From the language of § 4-401(1) it is not clear whether the drafters of the Code contemplated the liability of a signatory for an overdraft in a joint account. Since doubt exists as to whether the problem was examined fully in the development of the U.C.C., one should not conclude from definitional language that the drafters of the Code intended to imply such a partnership in a joint account.

Note, Overdraft Liability of Joint Account Cosignatories, 36 La.L.Rev. 1083, 1087-87 (1976).

As to allowing for continued expansion of commercial practices, requiring banks to have something more than a signature card to impose liability is not an onerous burden. Nothing prohibits banks from placing express language in a joint deposit agreement making one cosigner liable for the overdrafts of the other. Not only does this provide a potential basis for liability but it also allows the commercial practice of paying overdrafts to continue.

After examining the opposing arguments, we conclude that the position taken by the New York court is the most persuasive. Texas law in the areas of coten-ancy and agency is similar to that of New York. In Home Owners’ Loan Corp. v. Cilley, 125 S.W.2d 313, 316 (Tex.Civ.App.—Amarillo 1939, writ ref’d), this court approved the general statement found at 62 C.J. 533 Tenancy in Common § 209 (1933):

Under ordinary circumstances neither tenant in common can, in dealing with third persons, bind the estate or person of the other by any act with relation to the common property, not previously authorized or subsequently ratified, for co-tenants do not sustain the relation of principal and agent to each other, nor are they partners.

Likewise, in Myers v. Crenshaw, 116 S.W.2d 1125 (Tex.Civ.App.—Texarkana 1938), aff'd, 134 Tex. 500, 137 S.W.2d 7 (1940), it was stated:

The power of a co-tenant to act for and bind his co-tenants is aptly stated in 11 Tex.Jur. p. 487, as follows: ‘Unlike the ordinary copartnership wherein each partner is the agent of all the others to transact the business, each owner in a cotenancy acts for himself and no one is the agent of another nor has any authority to bind him merely because of the relationship. So that, ordinarily, one dealing with property held in coparcen-ary can acquire only the rights of those individual cotenants with whom he bargains.’ ”

116 S.W.2d at 1129.

In a case where the parties were clearly labeled “joint tenants,” Lander v. Wedell, 493 S.W.2d 271, 273 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.), the rule announced in Myers v. Crenshaw was applied. This rule has been upheld by other appellate courts in this state. See, e.g., Elliott v. Elliott, 597 S.W.2d 795, 802 (Tex.Civ.App.—Corpus Christi 1980, no writ); Hamman v. Ritchie, 547 S.W.2d 698, 706-07 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n.r.e.); and, Little v. Williams, 272 S.W.2d 409, 413 (Tex.Civ.App.—Austin 1954, writ ref’d n.r.e.). Thus, on the reasoning of McSweeney, summary judgment was improperly granted Cullen Center in this case.

Our decision to reverse the court of appeals does not mean that Ms. Williams is, under all circumstances, free of liability for the overdraft. If upon a new trial the bank is able to demonstrate that Ms. Williams participated in the transaction which created the overdraft; was enriched by the overdraft; or, in some manner ratified the transaction creating the overdraft, the bank will be entitled to recover from her the amount of the overdraft. This position is consistent with the holdings in Carney, McSweeney, and Derhammer I.

The judgments of the courts below are reversed and this cause is remanded for a new trial.

McGEE, J., notes his dissent.