author: HOWERTON, Judge.

text:
    Henry T. BUSH and Ivy D. Bush, his wife, Appellants, v. James Larry PUTTY, Jr. and Joyce Putty, his wife, Appellees.
    Court of Appeals of Kentucky.
    May 26, 1978.

      Paul K. Turner, Turner, Dixon, Kemp & Fletcher, Hopkinsville, for appellants.
    Ben B. Wright, Jr., Wright, Wright & Whitfield, Hopkinsville, for appellees.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   HOWERTON, Judge.

The appellees (hereinafter referred to as Putty) sued appellants (hereinafter referred to as Bush) for specific performance of a contract to convey a farm, and for an abatement of a portion of the purchase price. Bush answered the complaint and asked that Putty either perform the contract at the agreed purchase price or, in the alternative, that the contract be rescinded, with the $100 down payment to be returned to Putty.

On January 8, 1977, the Christian Circuit Court directed Bush to convey his farm to Putty for an abated purchase price of $76,-320.00. It is from that judgment that this appeal is taken.

Bush, who was 83 years old at the time of executing the agreement on February 27, 1976, had owned the farm since October, 1963. Putty had rented the farm in question from Bush, from 1971 until January, 1976. The parties reached an oral agreement whereby Putty would purchase the farm for $90,000.00. Putty had his attorney draft a contract of sale, which was signed by the parties on February 27, 1976.

The contract recited the fact that, “the seller being this day the owner of approximately 125 to 130 acres of land. . . . ” The former deed described the land as consisting of five parcels totaling approximately 130 acres. If the five parcels described in the deed were computed separately, the total acreage amounted to 125.68 acres. The contract further provided that in the event a survey of the farm was required, the cost would be divided equally between the seller and the purchaser.

The property was surveyed, and the actual area of the farm measured 105.99 acres, a variance of approximately 18 percent. Putty refused to pay the agreed price of $90,-000.00, and offered Bush the sum of $73,-400.00.

There was never any discussion of a cost per acre, and the record reveals that there was no discussion of acreage until the contract was signed. There is no indication of any fraud or deceit on the part of Bush or Putty, and both parties were familiar with the farm as a whole and its boundaries, although neither party knew the exact acreage contained within the boundary.

The case was tried before the court by deposition. The court made the following findings of fact and conclusions of law:

FINDINGS OF FACT
‡ * ⅜ 5k Sft *
2. The subject property was represented by defendants to be approximately 125 to 130 acres.
3. The property, by a survey, contained 105.99 acres.
4. Plaintiffs lost the opportunity to farm the property during 1976, suffered losses from nonuse of equipment and fertilizer purchased for this property, and were unable to purchase other property during the period that this sale was pending.
5. Plaintiffs believed and relied upon defendants’ representation that the farm contained 130 acres, more or less, and was entitled to rely upon same.
6. Plaintiffs did not purchase the property without concern for the acreage therein.
CONCLUSIONS OF LAW
1. Plaintiffs are entitled to relief in equity where the shortage of acreage in a land contract exceeds 10 percent (10%), as it does in this case.
2. The plaintiffs are entitled to specific performance of the contract with an abatement of purchase price, based on the reduced number of acres in the farm.
3. Defendants have not established the defenses of estoppel, rescission or defendants’ “Counterclaim” for damages.

The judgment ordered Bush to convey the farm for the sum of $76,320.00.

We have reviewed the depositions and the entire record, and we have some factual differences with the trial court, although most of our differences relate to facts in the record which were omitted in the findings by the court. The differences and omissions appear to be clearly erroneous and significant in that they formed the basis for the court’s conclusions and ultimate judgment. We also have differences with the conclusions reached by the trial court. We would point out that where a case is tried entirely by deposition, the appellate court is in as good a position to judge the credibility of witnesses as is the trial court. We may, therefore, make some independent evaluation of the evidence. Burchett v. Jones, Ky., 291 S.W.2d 32 (1956). CR 52.01.

Bush argues that the correct remedy for this case was rescission of the contract based upon the principle of mistake, as was done in McGeorge v. White, 295 Ky. 367, 174 S.W.2d 532 (1934). Bush also argues that specific performance with an abatement of purchase price is not an authorized or proper remedy in Kentucky.

We conclude that this contract should have been rescinded. As to the question of whether or not specific performance with an abatement of purchase price is a proper remedy in Kentucky, we only conclude that the remedy is not appropriate for the facts in this case.

We agree with the finding by the trial court that the property was represented by Bush to be approximately 125 to 130 acres. It must be noted, however, that this was the description contained in Bush’s deed. We would also agree that Putty was somewhat concerned about the acreage he would purchase, just as anyone would be. But, this case is unique in the fact that Putty had been in possession of the farm for five years before the agreement was made by Bush to sell and Putty to buy the farm for $90,000.00. Putty knew as well as Bush what he was acquiring for the agreed purchase price.

We would also agree with the finding that the actual acreage contained in the farm was 105.99 acres. This constitutes a substantial difference and considerably more than a ten percent variance. We fail to find any serious consequence from Finding # 4 by the trial court, and note that the trial court omitted the fact that Putty could have leased the farm from Bush during 1976 and carried out a farming operation.

The trial court concluded that Putty was entitled to relief because the shortage of acreage exceeded ten percent, and also that Putty was entitled to specific performance with an abatement of the purchase price based on the reduced number of acres. The remedy of specific performance is well settled in cases involving the sale of land. We have been bombarded with authority in the briefs from both sides indicating that specific performance with an abatement of the purchase price is available in a narrow line of cases in Kentucky, and that the remedy is also supported by substantial secondary authority and cases from other jurisdictions. Apparently, most cases do not allow an abatement in price for the buyer or seller, if the variance is within ten percent. If specific performance is ordered, a modification in price is permitted when the variance exceeds ten percent, but we cannot find any Kentucky authority for granting this remedy when the modification would be substantial and when no fraud or deceit is involved. The most common situation occurs when the seller is attempting to force the buyer to carry out a contract with less land than the buyer bargained for.

Some rules have been established for contracts for the sale of a gross amount of land, as was described in Harrison v. Talbot, 32 Ky. 258, 2 Dana 258 (1834). At p. 266, the court describes four types of gross sales, and concludes that either of the first two types should not be modified, while an unreasonable surplus or deficit may entitle the injured party to equitable relief in either the third or fourth situation. The second and third classes are described in Harrison, supra, at 266, as follows:

******

Second — Sales of the like kind, in which though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances or in such manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how-much-soever it might exceed or fall short of that which was mentioned in the contract.
Third — Sales in which it is evident from extraneous circumstances of locality, value, price, time and the conduct and conversations of the parties, that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might be reasonably calculated on as within the range of ordinary contingency.

The trial court apparently found the third category to be applicable, and then applied the theory of the ten percent rule in order to grant the specific performance with a relief from the agreed purchase price. This may be the correct category for this sale, but other factors make the relief unconscionable, which is why we conclude that rescission of the contract is a more suitable and just solution for this controversy.

We would point out that in Harrison, supra, the situation fell within the the third classification, but specific performance at an adjusted price was denied. The opinion of the court reads at p. 268:

We cannot resist the conclusion, that a court of conscience called on to assert its extraordinary equitable discretion, in coercing a specific execution, cannot, consistently with justice, principle or authority, grant the prayer of the appellee.

The error in Harrison, supra, was approximately twenty-two percent. The situation also involved an excess amount of acreage rather than a deficiency, and it permitted the buyer to either accept the proposition of the seller to either convey an amount smaller than the entire tract, or to convey the entire tract at an increased price. The court left the solution up to the parties.

Although there are several distinctions to be made between the case, sub judice, and the case of McGeorge v. White, supra, the McGeorge case did direct a rescission of a contract based upon the principle of mutual mistake, in that there was never an agreement as to the exact number of acres. More correctly, it might have been said that there never was a contract.

17A C.J.S. Contracts § 418(2) provides that:

. [A] mutual mistake as to a material fact, and in some incidences, a unilateral mistake, entitles the party affected thereby to rescind the contract unless the contract has already been executed and injustice to the other party would result.

We have before us a serious mistake which was mutual in the sense that both parties were thoroughly familiar with the farm to be bought and sold. The mistake was one of fact, in that the state of mind of both parties was not in accord with the reality of the actual number of acres contained in the farm. There is no evidence of any fraud or deceit on the part of Bush or Putty, and the mistake was made by Bush through the exercise of ordinary care under the circumstances, although it is always preferable to have property surveyed, which he never did. The mistake is enough to deny enforcement, since we could conclude that no contract was ever made.

Bush agreed to sell his farm for $90,000.00. Putty agreed to buy the farm for $90,000.00 and knew the boundaries of his intended purchase, although neither party knew the exact quantity of the tract in number of acres. To force Bush to sell his farm for $76,320.00 is as unconscionable as it would be to force Putty to buy the farm at $90,000.00, or, more specifically, to force Putty to buy the farm for $105,000.00, if a survey revealed that it contained approximately 150 acres.

When the parties can be returned to the status quo, the best remedy is rescission. The contract in this case was executo-ry, and rescission provides a more just settlement for both parties, as in McGeorge, supra. If Putty can prove any actual damages, he might find a remedy in another action. No funds have yet been transferred, and possession has not changed. Both parties can be restored to their prior positions with little difficulty.

For the foregoing reasons, the judgment of the trial court is reversed and the case is remanded with directions to enter judgment consistent with this opinion.

All concur.


source: Caselaw Access Project

author: GANT, Judge.

license: Public Domain

text:
    Carl BRYAN, Appellant, v. HENDERSON ELECTRIC COMPANY, Western American Insurance Company and Special Fund, Appellees.
    Court of Appeals of Kentucky.
    June 2, 1978.

      Robert L. Catlett, Jr., Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellant.
    Brown, Todd & Heyburn, Charles S. Cas-sis, Stephen R. Schmidt, Louisville, for ap-pellees, Henderson Electric Co. and Western American Insurance Co.
    Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for Special Fund.
    Before GANT, COOPER and HOGGE, JJ.
   GANT, Judge.

This action was originally brought by the appellant, Carl Bryan, the injured employee, and Electrical Workers’ Welfare Fund, Local 369. The facts disclose that the appellant suffered a heart attack while in the employment of the appellee, Henderson Electric Company. The appellees refused the claim of the appellant on the ground that it was not work-related. Appellant incurred extensive medical expense, in the amount of $11,690.48, $9,903.03 of which was paid by the Welfare Fund pursuant to its plan and from funds accumulated by contributions from the employee and other members; and $1,787.45 being paid by the employee/appellant. Appellant prosecuted his claim against the employer to a successful conclusion, the Workmen’s Compensation Board adjudging that the appellees shall pay “such medical, surgical and/or hospital expenses as may be reasonably required for the cure and treatment” of his condition and during his disability.

After the time for reconsideration and appeal had run, the employee and the Welfare Fund made demand for payment, the appellees refused to pay other than the sums expended by the employee, and this action was commenced. The appellees moved to dismiss the complaint of the Welfare Fund on the grounds that it had not been a party to the award made by the Workmen’s Compensation Board and was therefore not a party in interest. The trial court indicated that he would sustain that motion, that he did not feel that the Welfare Fund had an interest which could be asserted in this action, and insisted that the complaint be amended so that the action was prosecuted in the name of the appellant only. After the second amended complaint was filed, the appellees paid the $1,787.45, securing a discharge of the appellant of his claim, and a summary judgment in favor of the appellees was granted thereafter.

Appellant insists that this action was originally brought pursuant to KRS 342.305. Appellees argue that it was not, and that such statute is available only to the injured party. We cannot agree with the appellees. The statute provides as follows: “Any party in interest may file in the circuit court of the county in which the injury occurred a certified copy . of an order or decision of the board . The court shall render judgment in accordance therewith and notify the parties.” (Emphasis ours).

The sole question to be determined by the lower court was whether the Welfare Fund was a “party in interest.” Appellees urge that only the claimant before the Workmen’s Compensation Board is such a party, but this is clearly not the law.

CR 17.01 directs that “[ejvery action shall be prosecuted in the name of the real party in interest . . . ” In 6 W. Clay, Kentucky Practice, pp. 313, 314 (3rd ed. 1974), the author comments that the assign-ee of a completed chose in action is a real party in interest who may sue in his own name and that since “subrogation is essentially an assignment by operation of law, the same general principle should govern,” citing Monson v. Payne, 199 Ky. 105, 250 S.W. 799 (1923). The requisites for subro-gation are usually described as (1) payment by one of the debt of another; (2) subrogee is not a volunteer; (3) the debt is not one for which the subrogee is primarily liable; (4) the entire debt must be paid unless the others who made payment are joined; and (5) subrogation must not work any injustice to the rights of others.

Examining the above requisites for subrogation, we find that the Welfare Fund had paid 80% of the hospital expenses of the appellant, that they were not a volunteer but were making this pursuant to contribution made to that fund by the injured party, and that the Welfare Fund was obligated to pay this medical expense only if there were no other source available to the injured party. At the outset, both the Welfare Fund which had paid 80% and the employee who had paid 20% were the joint plaintiffs in the action. Indeed, it is paradoxical that the appellees moved to strike the Welfare Fund as a party plaintiff, it being the purpose of CR 17.01 to prevent the persons liable from paying the debt more than once, and the best insurance which they could have would be to leave the Welfare Fund before the court as a party so that their interests would appear in any judgment. Nor could the appellees complain that this subrogation would work any injustice to their rights. The order of the Board directed that the employer pay all medical and hospital expense. KRS 342.020(1) further provides that the employer pay for all medical and hospital expense which may be required at the time of the injury and thereafter during disability. Neither the order of the Board nor the statute says that the employer shall pay these medical and hospital expenses unless someone else has paid them. Such an order by the Board would be in clear contravention of the statute.

The law in this Commonwealth is clearly set out in the case of Conley v. Foster, Ky., 335 S.W.2d 904 (1960). In this case the court stated as follows:

There appear to be only two possible arguments against permitting a negligently injured person to recover, from the tort-feasor, medical or hospital expenses which the injured person has not or will not be compelled to pay out of his own pocket. One would be that since he has not been subjected to any expense, he has not been damaged. However, in the medical and hospital insurance cases, and in the welfare fund cases where the employee has paid a monthly contribution out of his wages, the injured person has been subjected to expense in the nature of premium payments. Furthermore, if someone has been compelled to pay medical or hospital expenses on behalf of the injured person, it would seem that the tortfeasor should be liable to someone for those expenses, his only concern is that he not be required to pay twice.
The second argument would be that the injured person is not the real party in interest. However, we think that where the expenses have been incurred in his behalf, and particularly where he has paid premiums or wage contributions to secure the payment of the expenses, his interest is sufficient to make him the real party in interest. It is true that in cases where there has been an assignment of the claim to the insurer, the assignee is held to be the real party in interest. (Citing cases.) It is possible that this rule may also extend to contractual subrogation cases. But it has not been extended in this jurisdiction to cases of equitable subrogation.
* * * * * *
We now hold that in the absence of an assignment or express contractual subro-gation the injured person may recover medical and hospital expenses incurred in his behalf, at least where these expenses are paid pursuant to an agreement based upon the payment of premiums or contributions by or on behalf of the injured person .

See also McCormick v. Gullett, Ky., 460 S.W.2d 813 (1970) and Our Lady of Mercy Hospital v. McIntosh, Ky., 461 S.W.2d 377 (1970).

The above-cited cases concerned actions against tortfeasors, but we specifically extend this doctrine to include Workmen’s Compensation cases. This is a quite natural extension in light of KRS 342.020, which specifically requires the employer to pay all hospital and medical expenses incurred on behalf of the injured employee, and in light of KRS 342.305 which provides that any party in interest may file a suit to enforce a decision of the Board. The lower court erred in requiring the Welfare Fund to be removed as a party, but this error was not fatal, inasmuch as the law permits the injured party to bring the action in his own name. This is particularly true when the debtor not only failed to ask that the action be brought by the real party in interest pursuant to CR 17.01 but specifically asked his removal when the action was properly brought. At the time the appellees paid to the appellant the 20% which he had incurred in out-of-pocket expense, the appel-lees were totally aware of the claim of the Welfare Fund and that the action was being prosecuted by it in the name of the appellant. To permit the compensation carrier to deny claims over a protracted period of time in the hope that they would be paid by insurance or some other source and then seek to avoid the payment directed by the Board or the courts by contending that the expenses which the law requires them to pay had been previously paid by collateral sources would be unconscionable, in our opinion.

Accordingly, this case is remanded to the lower court with directions to set aside the summary judgment herein, to take proof concerning the actual medical expenses paid on behalf of the appellant by the Electrical Workers’ Welfare Fund, Local 369, and to enter judgment herein against the appellees for that sum so determined.

All concur.


author: FINCH, Judge.

text:
    Michael OBRADOVICH, Petitioner, v. Donald PETERSON, Respondent.
    No. 59308.
    Supreme Court of Missouri, En Banc.
    June 15, 1978.
    Theodore F. Schwartz, Clayton, for petitioner.
    John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Judge.

On August 25, 1970, petitioner, charged in the Circuit Court of the City of St. Louis with murder in the first degree, was found by the court to be not guilty by reason of mental disease or defect excluding responsibility pursuant to § 552.030 and, in accordance with § 552.040, was ordered committed to the custody of the Director of the Division of Mental Diseases and placed in the Fulton State Hospital. In this proceeding petitioner seeks by writ of habeas corpus to be released from confinement in said hospital. We quash.

Petitioner’s amended petition for writ of habeas corpus alleged that at no time did he authorize the filing on his behalf of a written notice pursuant to § 552.030.2 that he had no defense to the charge of murder except mental disease or defect excluding responsibility, that his attorney in the murder case exceeded his authority by filing such a written notice on May 12, 1970, and that petitioner did have other defenses to the murder charge.

In the return to our preliminary writ of habeas corpus, respondent denied the allegation that petitioner had not authorized the filing of a notice that petitioner had no defense other than mental disease or defect excluding responsibility and denied that petitioner’s attorney exceeded his authority when he filed such a notice. In addition, the return alleged that petitioner was in court at the time of the order and judgment whereby he was found not guilty by reason of mental disease or defect and committed to the Fulton State Hospital and that this constituted a waiver of petitioner’s objection.

There being disputed issues of fact raised by the pleadings, we designated the Honorable Frank Conley, Judge of the 13th Judicial Circuit, as master to hear evidence and make findings of fact and conclusions of law with reference to certain issues, including “whether the entering of petitioner’s plea of not guilty by reason of mental disease or defect excluding responsibility, and the filing, if so, of a written notice that petitioner had no other defense was done or filed by petitioner’s attorney of record without petitioner’s authorization or approval or knowledge or acquiescence therein.”

After an evidentiary hearing, the master made a finding “that petitioner’s attorney, Bart Mantia, filed a written statement that petitioner had no defense other than that of mental disease or defect as a necessary step to authorize the trial court to accept petitioner’s plea of not guilty by reason of mental disease or defect excluding responsibility, and that such filing was done with the authority of the petitioner.” In reaching that conclusion, the master points out that while petitioner during the hearing contended that a written statement was not filed, his first amended petition admitted that his attorney did file such written notice. In addition, the master noted, the order and judgment of Judge Vernon W. Meyer on August 26, 1970, accepting petitioner’s defense of mental disease or defect recited that petitioner had filed a written statement that he had no other defense. The master also observed that he declined to find petitioner credible and did not accept his version that he did not authorize the filing of such a written notice.

Sec. 552.030.2 makes it mandatory that defendant file a written notice that he has no defense other than not guilty by reason of mental disease or defect excluding responsibility before the state may accept such plea and, therefore, before the court may find defendant not guilty for that reason. Ex parte Kent, 490 S.W.2d 649 (Mo. banc 1973); State v. Grantham, 519 S.W.2d 19 (Mo. banc 1975); Briggs v. State, 509 S.W.2d 154 (Mo.App.1974). The respondent does not contend otherwise. The dispute between petitioner and respondent involves whether the evidence supports the master’s conclusion that petitioner’s attorney was authorized to and did in fact file a written notice that petitioner had no other defense than mental disease or defect.

At the evidentiary hearing, petitioner offered in evidence a certified copy of the file in the murder case against petitioner in the Circuit Court of the City of St. Louis. He points out that the file does not contain a written notice by defendant that he has no defense other than not guilty by reason of mental disease or defect excluding responsibility. He argues that if such a notice was filed it would be in the court file and that its absence indicates there was no such written notice. That contention was made to the master. He considered it but concluded that the evidence taken as a whole, including the fact that the specific language in Judge Meyer’s judgment indicated that defendant (petitioner herein) had filed such a notice, plus the fact that the filing of such notice had been admitted in petitioner’s amended petition for writ of habeas corpus, established that petitioner had authorized such a notice and that it was filed.

We conclude and hold that the evidence supports and calls for the conclusion reached by the master. Accordingly, the writ of habeas corpus is quashed and petitioner is remanded to the custody of respondent.

MORGAN, C. J., BARDGETT, DONNELLY, RENDLEN and SEILER, JJ„ and HOUSER, Special Judge, concur.

SIMEONE, J., not participating because not a member of the court when cause was submitted.

      . All statutory references are to RSMo 1969 unless otherwise indicated.
      The pertinent portion of § 552.030 provides:
      “1. A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.
      “2. Evidence of mental disease or defect excluding responsibility shall not be admissible at trial of the defendant unless the defendant at the time of entering his plea to the charge pleads not guilty by reason of mental disease or defect excluding responsibility, or unless within ten days after a plea of not guilty or at such later date as the court may for good cause permit, he files a written notice of his purpose to rely on such defense. Such a plea or notice shall not deprive the defendant of other defenses. The state may accept a defense of mental disease or defect excluding responsibility, whether raised by plea or written notice, if the defendant has no other defense and files a written notice to that effect. Upon the state’s acceptance of the defense of mental disease or defect excluding responsibility, the court shall proceed to order the commitment of the defendant as provided in section 552.040 in cases of persons acquitted on the ground of mental disease or defect excluding responsibility, and further proceedings shall be had regarding the confinement and release of the defendant as provided in that section.”

      . Sec. 552.040 provides in part:
      “1. When a defendant is acquitted on the ground of mental disease or defect excluding responsibility, the court shall order such person to be committed to the director of the division of mental diseases for custody, care and treatment in a state mental hospital.”

      . Petitioner also alleged that he was being subjected to cruel and unusual punishment by virtue of his commitment to the state hospital in that he was being forced to use debilitating drugs which serve no legitimate medical function but merely placate petitioner and render him incapable of maintaining his normal mental state. The master, appointed by this court to hear evidence on certain disputed issues and to make findings of fact and conclusions of law, found against petitioner on this issue. Petitioner has not briefed this point and we consider it abandoned.

      . Dr. Peterson was named as respondent in his capacity as Superintendent of the Fulton State Hospital. The evidence discloses that at the time of the evidentiary hearing he had been succeeded in that capacity by Dr. Richard K. Jacks but no substitution of parties was made.

      . The return also alleged that on July 9, 1971, petitioner was civilly committed to Fulton State Hospital by the Probate Court of Callo-way County and that both that order and the order of the Circuit Court of the City of St. Louis committing petitioner under § 552.040 are still in effect. Petitioner, in his reply, alleged that this order of the probate court was obtained by fraud, deceit and trickery. The master heard evidence on this issue and made findings and conclusions against petitioner. The issue has not been briefed by petitioner. We consider it abandoned.

      . Mr. Mantia was deceased at the time of the evidentiary hearing.

      . At the time of the evidentiary hearing before the state, a transcript of the hearing on August 25, 1970, before Judge Meyer was not available and it was believed that the notes thereof could not be found. Thereafter, the notes were found and a transcript prepared. It has been filed by agreement of the parties. We note that the following appears in that transcript.
      “THE COURT: It’s your contention, Mr. Mantia, that at the time of the commission of this occurrence he was mentally ill, not responsible for his actions?
      “MR. MANTIA: Yes, Your Honor.
      “THE COURT: And your only defense is that he is innocent by reason of that condition; is that correct?
      “MR. MANTIA: Yes, Your Honor.
      “THE COURT: And it’s your intention today, if you can, to prove that that condition existed at the time of the commission of this offense and if the Court finds it to be true that this man be acquitted and committed to the director of the division of mental diseases.
      “MR. MANTIA: Yes, Your Honor.
      “THE COURT: All right. I guess first we better go into whether or not this defendant understands the nature of these proceedings at this time.”
      The court then first proceeded to determine that defendant was capable of understanding the proceedings against him and cooperating in his defense.


author: DOWD, Judge.

text:
    Jean M. HEBRON, Petitioner-Appellant, v. Robert E. HEBRON, Respondent.
    No. 38250.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 28, 1978.

      Richeson, Roberts, Webmann, Gasaway, Stewart & Schneider, John A. Schneider, Hillsboro, for petitioner-appellant.
    Jeremiah Nixon, Hillsboro, for respondent.
   DOWD, Judge.

The twenty one year marriage of appellant Jean Hebron and respondent Robert Hebron was dissolved on March 19, 1976 in Jefferson County, Missouri. The court’s division of property, order as to maintenance, and ruling as to attorney’s fees are disputed on appeal.

The parties were married on November 26,1955. From 1965 to 1975 they lived with their five children in a home they built on Lonedell Street in Arnold, Missouri. In April of 1975, appellant obtained a court order for respondent to leave the family home. They have been separated since that time. At the time of the dissolution proceeding appellant was 42 years old and respondent 44 years old.

At the dissolution, the trial court ordered nearly all of the assets of the parties, which consisted of stocks and real estate, sold and proceeds divided equally. Appellant and the five children are to have the use of the family home until the youngest child, age 13, is emancipated. At that time the home is to be sold and proceeds divided equally. However, appellant is to be credited for house payments she makes after April 1, 1976. Respondent is to pay appellant $100.00 per month maintenance which will terminate April 1, 1985 or upon her remarriage. The five minor children are to be in appellant’s custody, with respondent paying $100.00 per month per child until each child is emancipated. The trial court found that the American General Insurance stocks which are held in respondent’s name in a company retirement trust, valued at $3,000, to be respondent’s separate property. The furnishings in the family home, valued at $3,000, were awarded to appellant as her separate property. Each party was to pay his or her own attorneys fees, and respondent is to pay the court costs for trial.

We must affirm the judgment below unless it is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Smith v. Smith, 552 S.W.2d 321, 323[4] (Mo.App.1977).

Appellant first challenges the division of property as to both the family home and the stock. The trial court possesses considerable discretion in its division of marital property following dissolution. Klinge v. Klinge, 554 S.W.2d 474, 477[3] (Mo.App.1977). Its decision will not be overturned absent abuse of that discretion. In re Marriage of Simpelo, 542 S.W.2d 558, 561[8] (Mo.App.1976).

We will first discuss appellant’s contention that the family home on Lonedell was not marital property but her separate property. The relevant statute is § 452.330, RSMo 1969 which states that a trial court shall set apart to each spouse his or her separate property. Section 452.330.3 sets out the presumption that all property acquired by either spouse subsequent to the marriage is presumed to be marital property, regardless of how title is held. The presumption can be overcome by showing that property was acquired by exceptions listed under § 452.330.2. Appellant claims the home is her separate property because it falls into the second exception “property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift.” She claims that if we examine the transactions that resulted in the acquisition of the home and lot upon which it was built, it will be apparent that the home is her separate property.

A discussion of all the details of these transactions is not necessary. To summarize, we need only point to the facts that appellant relies on most strongly to advance her cause. These facts are that $11,750 of the $19,750 purchase price of the first family home bought in 1957 was paid from her separate funds. Her father, Mr. Gangloff, gave $2700 for permanent home improvements and $1900 for furniture. When this house was sold, the proceeds, $14,450, were used to construct the Lonedell home. The lot on which the Lonedell home was built had been in appellant’s family for three generations and was deeded to appellant in 1955 before her marriage. She held it in her name alone from 1955-1964. In 1965 she deeded it to herself and her husband as joint tenants. The parties lived in this home for the last ten years of their marriage. During this time appellant’s father paid the taxes and insurance on the house. There was testimony that he did this in exchange for respondent’s having referred clients to him. Appellant’s father also paid for a rathskeller to be built in the Lonedell home, which cost about $880.

Do these facts require a finding that the Lonedell home is appellant’s separate property because it is “property acquired prior to the marriage or in exchange for property acquired by gift”? § 452.330.2(2) We believe the answer is no.

The parties first home on Plain-view was held in their joint names, as was the Lonedell home and lot. Property acquired after the marriage and placed in joint names is presumed to be marital property even if one spouse furnishes a greater part of the consideration. Conrad v. Bowers, 533 S.W.2d 614, 622[12, 13] (Mo.App.1975). Clear and convincing evidence is required to show that the transfer of property to joint names was not intended as a provision for a settlement upon, or as a gift to the other spouse. Conrad v. Bowers, supra; Ledbetter v. Ledbetter, 547 S.W.2d 214, 215[1] (Mo.App.1977). The only evidence here is the testimony of appellant’s father that the money he gave appellant over the years for the home improvements and for other things was intended to be gifts to her alone, bolstered by the statements by both appellant and her father that the first home on Plainview, and the Lone-dell lot were both placed in joint names solely to obtain bank loans to finance the homes. This evidence does not rise to the “clear and convincing” standard enunciated in Conrad v. Bowers, especially in light of the following facts: First, during their marriage, appellant made no effort to treat either home as her separate property. Also, the house payments for both homes were made from respondent’s paycheck. Respondent helped maintain the Lonedell lot by cutting grass and painting the old farmhouse before they built their home. He contributed his labor to the building of the home by tearing down the old farmhouse, building a patio, and putting in panelling. Respondent did not learn that appellant would claim the house as her separate property until depositions were taken a few months before trial. The trial court’s memorandum opinion aptly describes the situation:

“This is a twenty-year marriage that produced five children as well as a rather carefully reconstructed financial history which does, in fact, show the helping hands of doting grandparents as well as substantial, continued, economic growth through the successful employment of Respondent. Twenty years ago these parties were married in a church, not an accountant’s office. There was no three-cornered prenuptial agreement, including Petitioners doting parents, to segregate the contributions of those third parties from the respondent herein. The gifts were made to both parties and the intent of those gifts is best determined by the documents and titles evident at the time the gifts were made, rather than the statements of “intent” made during the emotional trauma of the demise of a twenty-year marriage.”

The Lonedell home is marital property. The trial court’s decree regarding it is not erroneous.

Appellant’s second point is that even if the home is marital property, it should have been awarded to her. She relies on § 452.330.1(1-4) for her contention, which is set out below. She claims that if the court had properly weighed these factors, it would have awarded the home to her. The first factor, contribution of each spouse to the acquisition of the marital home, has been discussed. The second factor, value of the property set apart to each spouse, is approximately equal; appellant was awarded the furnishings of the home, valued at $3,000, and her husband was awarded shares of American General stock held in his name alone, also valued at $3,000. All other assets were ordered sold and divided equally although the home was not to be sold until the 13-year-old boy is emancipated and appellant is to get credit at the time of the division of proceeds for the house payments she had made.

The third factor involves the economic circumstances of the parties. Appellant has worked for the past seven years on a part time basis at a church in Arnold, Missouri. Her take home pay is about $310 per month. She is also a licensed real estate broker, but has never participated in any sales. Her other income is $100 per month maintenance and $100 per month child support per unemancipated child. Thus, her monthly income at the present time is $910 per month.

Appellant’s expenses are $103.19 per month for house payments. She also has expenses for private school, college tuition, and dental braces for the children but these need not be detailed since she does not appeal the child support award. Her health is good.

Respondent earns $1,058 per month as a marketing coordinator for an insurance company. Expenses for his rent and living expenses, child support, and maintenance, approximate $1300 per month, so that his expenses exceed his income by about $300 per month. He is under a doctor’s care for a heart condition.

Finally, we are to consider the conduct of the parties during the marriage. There was testimony that respondent drank to excess and that appellant stayed out late at bingo games and was too lenient with the children. We have perused the record and conclude that neither party stands out as the villain in the breakdown of this marriage.

The record demonstrates that the order relative to the home is based on a consideration of the four factors set forth in § 452.-330.1 relative to a distribution of marital property. Nixon v. Nixon, 525 S.W.2d 835[2] (Mo.App.1975). While the trial court gives appellant credit for payments made on the home during her occupancy, we believe under the facts here that she is entitled to further credit for payments of insurance premiums and real estate taxes made after April 1,1976. These payments would inure to the benefit of both parties.

Appellant next contests the court’s division of the stock. She claims certain stock is her separate property because she held it in her separate name. Other stock she claims as separate property because, although held in joint names, it was purchased with cash gifts from her father.

We will first discuss the 150 shares of jointly held American General stock. In 1967, Jean and Robert Hebron bought 50 shares of American General stock. There are now 150 shares since the stocks split three to one. In order to buy the stock the two of them made a $4000 loan at Clayton Bank. Appellant claims she owns the stock because three fourths of the loan was repaid by the sale of a lot from her mother’s farm. This lot was given to appellant but she deeded it to herself and her husband jointly before it was sold to repay the loan.

We hold that the 150 shares of American General Stock were correctly determined to be marital property. It was clearly “property acquired . . . subsequent to the marriage.” § 452.330.3. The fact that she deeded land to herself and her husband as joint tenants before selling it, Conrad v. Bowers, supra, and then used the proceeds to pay off the joint obligation for the stocks, is conduct which shows a clear in-tertt to contribute the land and proceeds from it to the marital property.

Other jointly held stock appellant claims as her separate property is 357 shares of common stock and 350 shares of preferred stock in Hampton Bank. This stock was purchased by Mr. Gangloff as a gift in 1956 or 1957 shortly after the parties were married, and given to them in their joint names. The purchase price was $5500. Mr. Gan-gloff bought it using the money his wife had left appellant. Appellant claims it was a gift to her alone, and thus is not marital property because it falls within the exception listed in § 452.330.2(2), which states that all property acquired by either spouse after marriage is marital property except property acquired by gift.

A gift to both spouses is presumed to be marital property. Elmore v. Elmore, 557 S.W.2d 910, 911[3] (Mo.App.1977); Forsythe v. Forsythe, 558 S.W.2d 675, 678[3] (Mo.App.1977). The Forsythe case noted that this is true because there are actually two presumptions to be overcome; the presumption that property acquired during marriage is marital property, § 452.330.3, and the presumption that property held in the joint names of husband and wife is owned by them as tenants by entireties. Conrad v. Bowers, supra, 533 S.W.2d at 622[12, 13]. Clear and convincing evidence is required to overcome the presumption of joint ownership. Forsythe, supra at 678[9], Conrad v. Bowers, supra, 533 S.W.2d at 622[1], 13].

Mr. Gangloff testified that he put the stock in joint names so it could be used for collateral to make it easier for the parties to obtain other loans financed through Hampton Bank, such as the loan for the Plainview house. Thus at the time he made this gift, when the parties were newly married, Mr. Gangloff intended to benefit his daughter and her husband in their capacity as husband and wife. Appellant’s conduct did not indicate that the stock was her separate property. She put the dividend checks into the joint account or cashed them and spent them for family groceries. The evidence is not sufficient here to overcome the common law presumption that transfer to husband and wife jointly creates a whole estate in them as one person. Forsythe v. Forsythe, supra, 558 S.W.2d at 679. The trial court did not err regarding the disposition of these jointly held stocks.

The final challenge appellant makes to the division of marital property is that the court erred in failing to set apart to her 15 shares of common stock and 15 shares of preferred stock in Hampton Bank, and 25 shares of American Express stock, all of which she held in her name alone. About 2½ years before the trial her father gave her the money for the Hampton Bank stock. About a year later, for a birthday gift, he gave her about $1400 for the American Express stock. We believe the trial court erred in concluding that this stock was marital property. Appellant received it as a gift, and in her name alone during the period when problems with the marriage became apparent. This evidence, plus the absence of any evidence such as commingling the stock with marital assets, Jaeger v. Jaeger, 547 S.W.2d 207, 211[5] (Mo.App.1977) or later placing it in joint names, Conrad v. Bowers, supra, showing an intent to contribute the stock to the marital estate, overcomes the presumption of marital property, § 452.330.3, and establishes that it was a gift to her alone, § 452.330.2(1). See Conrad v. Bowers, supra, 533 S.W.2d 614, 624, n. 16[20]. This portion of the trial court’s decree should be reversed.

Appellant next attacks the maintenance order. Her attack is two pronged; first, she claims it is too small, and second, she contends that it was error to order that maintenance be terminated on April 1,1985.

There are seven factors to be considered in arriving at a just maintenance award § 452.335. After considering these factors and the record we do not believe that the trial court abused its discretion in awarding $100.00 per month maintenance. In re Marriage of Vallroy, 548 S.W.2d 857, 859 (Mo.App.1977). There was substantial evidence to support this award. Carr v. Carr, 556 S.W.2d 511, 512[2] (Mo.App.1977).

Regarding the termination of maintenance, we have held that an order to terminate maintenance is improper absent evidence indicating that the financial circumstances of the parties will change. In re Marriage of Valleroy, supra, 548 S.W.2d 857, 859[2]; LoPiccolo v. LoPiccolo, 547 S.W.2d 501, 503[5] (Mo.App.1977). In this case, the evidence shows that the trial court ordered termination of maintenance to occur three weeks after the youngest child becomes 21 years old. Since a court may properly consider the fact that a spouse was granted custody of minor children as a circumstance going to the propriety of a maintenance award, Goff v. Goff, 557 S.W.2d 55, 57[3] (Mo.App.1977), we believe that it is also proper to consider emancipation of such children as a factor along with other factors to consider relative to a termination. The reason for this is that upon emancipation of minor children the spouse with custody is also “emancipated”, that is, he or she is free to devote time to a job outside the home once child-rearing responsibilities have ceased. Appellant is presently employed part time and the emancipation of the youngest child makes full time employment possible since she has a realtor’s license. We believe there was substantial evidence to support the termination of maintenance, in view of appellant’s skills, health, prospects for employment, the present earnings and capabilities of both parties, and other relevant factors. In re Berkbigler’s Marriage, 560 S.W.2d 36, 39[2] (Mo.App.1977).

Finally, appellant claims the court erred by failing to order respondent to pay her attorney’s fees which amounted to $1,000. The decree reads, “From the proceeds of the sale of the various items of marital property each party will pay their own attorneys fees and the costs of action will be taxed against respondent.”

Allowance of attorney fees is a matter entrusted to the trial court’s discretion. Brueggemann v. Brueggemann, 551 S.W.2d 853, 859 (Mo.App.1977). We interfere with its judgment only upon a finding of abuse of discretion. Barnhill v. Barnhill, 547 S.W.2d 858, 860[6] (Mo.App.1977). The circumstances of both parties, including the ability of the husband to pay, are factors to be considered. S. G. E. v. R. L. J., 527 S.W.2d 698, 703[6] (Mo.App.1975). The facts here show that respondent does not have greater resources than appellant. After his payments to her of child support and maintenance, he has $400 reserved per month for his other expenses, and is running a deficit of about $300 per month. Although appellant has limited resources we cannot allow her attorney fees to be charged to her former husband, without a showing of his ability to pay. S. G. E. v. R. L. J., supra, at 704[8] (Mo.App.1975); In re Marriage of C-S-B-, 546 S.W.2d 186, 188[3] (Mo.App.1976). The denial of attorney fees was a proper exercise of discretion.

The judgment is affirmed except as to the finding that appellant’s separately held shares in Hampton Bank and American Express shares and marital property and accordingly are set aside to her. Also, the judgment is ordered modified to give appellant credit at the time the home is sold for payments made after April 1, 1976 for insurance premiums and real estate taxes.

Judgment is affirmed in part, reversed in part, and cause remanded with directions to enter judgment in accordance with this opinion.

SIMEONE, C. J., and SNYDER, J., concur.

      . § 452.330.1 reads:
      “In a proceeding for . . . dissolution of the marriage . . the court shall set apart to each spouse his property and divide the marital property in such proportions as the court deems just after considering all relevant factors including:
      1)The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
      2) The value of the property set apart to each spouse;
      3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and
      4) The conduct of the parties during the marriage.”

      . This is true of both real or personal property, Holt v. Myers, 494 S.W.2d 430, 444[18] (Mo.App.1973) including securities. Cann v. M & B Drilling, 480 S.W.2d 81, 85 (Mo.App.1972).


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Appellant, v. Vito VITALE, Defendant-Respondent.
    No. 39452.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 9, 1978.

      John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for plaintiff-appellant.
    Wolff, Frankel, McConnell & Passanante, Paul J. Passanante, Clayton, for defendant-respondent.
   McMILLIAN, Judge.

The State of Missouri (appellant) appeals from an order entered in the circuit court of St. Louis County setting aside a plea of guilty and sentence. Rules 27.25, 27.26, V.A.M.R. For reversal appellant argues that the trial court’s order setting aside respondent Vito Vitale’s guilty plea and sentence was clearly erroneous. We disagree and, accordingly, affirm the judgment.

On January 6, 1975, respondent entered a plea of guilty to a charge of child molestation, pursuant to the decision in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Respondent had initially chosen to plead not guilty and proceeded to trial before a jury. After detailed examination of respondent, the trial court found the guilty plea was made voluntarily with an understanding of the nature of the charge. Thereafter, the trial court sentenced respondent to two years imprisonment; execution of the sentence was stayed and respondent placed on probation for a period of five (5) years.

On March 24, 1975, respondent filed a motion to withdraw his plea of guilty and on May 1, 1975, a hearing was held on that motion. On May 6, 1975, the trial court overruled respondent’s motion to withdraw his plea of guilty. Respondent appealed. The court of appeals reversed and remanded with directions to the trial court to determine whether there was substantial compliance with Rule 27.26(c), V.A.M.R. State v. Vitale, 541 S.W.2d 329 (Mo.App.1976).

Respondent withdrew the motion to withdraw his plea of guilty pursuant to Rule 27.25 and substituted a motion to vacate judgment and sentence pursuant to Rule 27.26. On May 27,1977, a hearing was held on respondent’s Rule 27.26 motion. The cause was submitted on the transcript of the original hearing on the motion to withdraw the guilty plea. The trial court set aside the guilty plea and sentence “for the reason that [respondent] did not understand the nature of his plea of guilty.” This appeal followed.

Appellant’s sole argument on appeal is that the trial court’s order setting aside respondent’s guilty plea and sentence was clearly erroneous because the trial court’s finding that respondent did not understand the nature of his plea of guilty is clearly refuted by the record. Respondent contends that the record clearly supports the trial court’s order. Our review in a post-conviction proceeding is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous. E. g., Williams v. State, 536 S.W.2d 190, 191 (Mo.App.1976). The decision of the trial court is clearly erroneous only if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. E. g., Crosswhite v. State, 426 S.W.2d 67, 70-71 (Mo.1968) citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Coleman v. State, 542 S.W.2d 53, 54 (Mo.App.1976).

The transcript of the guilty plea proceeding shows that appellant was not mentally ill, addicted to drugs or alcohol; had been advised of the charge, discussed the case with his attorney, and understood the nature of the charge; had been advised of his rights and was satisfied with the advice of his attorney; understood that he was waiving his right to continue with the jury trial, to call witnesses to testify on his behalf, and to have the state prove the charge against him beyond a reasonable doubt; understood that he was pleading guilty to a felony, the effect of such a plea and the range of the possible sentences; stated that no one made any promises, threats or inducements to lead him to plead guilty; knew that his attorney, the prosecuting attorney and the judge had discussed what might be done if he did plead guilty; knew that the prosecuting attorney was not going to make a recommendation for sentencing and was willing to permit the judge to impose whatever punishment suitable and just under these circumstances. Appellant’s attorney testified that he did not know of any reason why appellant should not plead guilty. The trial court accepted the guilty plea, finding that it was made voluntarily with an understanding of the nature of the charge. It is true that similar records in other cases have been held sufficient to support the trial court’s finding of voluntariness. See, e. g., Beavers v. State, 520 S.W.2d 675 (Mo.App.1975); Griffin v. State, 513 S.W.2d 706 (Mo.App.1974).

At the evidentiary hearing on May 1, 1975, the transcript of. which was subsequently used on remand, the record shows that appellant admitted making the guilty plea; that he pleaded guilty because his attorney told him to plead guilty; that his attorney said that he (the attorney) and the judge had gotten together with the result that the judge would sentence him to six months probation and drop the charge itself if he pleaded guilty; that he did not understand that he was pleading guilty to a child molestation charge at the time he did so and did not make the guilty plea voluntarily; that he was not guilty of the offense charged; that he did not plead guilty because he feared the jury would assess a greater punishment than if he pleaded guilty; and that he left everything up to his attorney who he now believed had “led [him] the wrong way.” The state called a polygraph examiner but this witness was excused before he testified. On remand the state attempted to call the appellant’s attorney (counsel at trial and at the guilty plea proceeding) as a witness but was unable to reach him.

Under these circumstances the trial court was confronted with two different stories: (1) the guilty plea proceeding in which appellant was thoroughly questioned by the trial court and answered consistently with the ultimate finding of voluntariness and (2) the evidentiary hearing in which appellant stated that he did not understand at the time that he was pleading guilty to the charge and pleaded guilty only because his attorney promised him six months probation. The credibility of the witnesses, including the movant in a proceeding for post-conviction relief, is an issue for the trial court. See, e. g., Campbell v. State, 515 S.W.2d 453 (Mo.1974); Parton v. State, 545 S.W.2d 338 (Mo.App.1976); Trice v. State, 540 S.W.2d 613 (Mo.App.1976). The trial court in the present case found the story presented at the evidentiary hearing to be the more credible version and set aside the guilty plea and sentence. We can find nothing in the record before us that indicates this conclusion is clearly erroneous.

Judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.


text:
    SPIELBERG MANUFACTURING COMPANY, a corporation, Plaintiff-Appellant, v. DIRECT SALES INTERNATIONAL, INC., a corporation, Defendant-Respondent.
    No. 39326.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 16, 1978.
    Cupples, Cooper & Haller, Inc., Bernard W. Gerdelman, Clayton, for plaintiff-appellant.
    David J. Letvin, Lawrence Alan Wald-man, East St. Louis, Ill., for defendant-respondent.
   McMILLIAN, Judge.

This appeal arises from an action filed by Spielberg Manufacturing Company (Spielberg) against Direct Sales International, Inc., (Direct), based on breach of contract and quantum meruit, in which Direct filed a counterclaim for breach of contract. The ease was tried without a jury, and the trial court entered judgment in favor of appellant Spielberg in the sum of $976.19, and in favor of respondent Direct on its counterclaim in the sum of $3,483.73.

On appeal, appellant challenges the evidence; therefore, a recitation of the pertinent facts is necessary. Spielberg is a Missouri corporation organized to manufacture, distribute and sell handbags and other goods to retail outlets. On January 13, 1975, appellant and respondent allegedly entered into a written agreement whereby appellant was to manufacture and distribute handbags, wallets and other merchandise in the amount of $10,000 to third parties who had placed orders with respondent. Direct was to have submitted a $2500 down-payment, with the balance due within thirty days. Subsequent to this date, appellant filled and shipped several orders. On January 13, February 12 and February 26, appellant billed Direct for salesmen’s samples in the amount of $802.42. After thirty days, appellant notified respondent that it would no longer fill orders until payment was received. Although no payment was received thereafter, appellant did fill two subsequent orders, one to a Charles Gellis of Miami, Florida, and a second to the Helen Wolff Shop of Frontenac, Missouri. Both orders totalled approximately $173.77. Appellant claimed that these subsequent orders were filled due to a special request made by Direct.

Direct admitted the existence of an agreement, but denied Spielberg’s version of the terms of the contract. Direct claimed that the contract called for Direct to obtain orders for the sale of Spielberg’s “Handbags From Denise Perry,” and forward these orders to Spielberg who would fill and ship them to the purchasers. According to Direct, there was neither a downpayment requirement nor a thirty day balance due requirement. The evidence showed that Direct had not paid for the orders filled by Spielberg through April. Direct claimed that the initial orders covering the salesmen’s samples .were not its responsibility and that the custom of the industry called for Spielberg to cover such costs. In addition, Direct claimed that at the time it received the billings for the Gellis and Helen Wolff Shop orders on April 1, the contract had already been breached by Spielberg’s refusal to further perform and the funds received were used to offset already existing losses incurred due to its reliance on the agreement.

On appeal appellant raises two points. First, appellant argues the trial court erred in admitting respondent’s exhibits A, B, C, D, E, F and G because such exhibits were hearsay and the admission was prejudicial to the appellant. The second point attacks the sufficiency of the evidence to support the judgment of the trial court.

The first point raised is without merit. Appellant claims prejudice in the introduction of respondent’s exhibits A through G. Respondent’s exhibits A through G were admitted to prove up expenses incurred due to the reliance on the agreement. Respondent’s award was for lost profits on gross billings and did not include costs or expenses. Thus, there could not possibly have been any resulting prejudice to appellant. Even had the exhibits been introduced to prove up lost profits, a trial court, sitting without a jury, may properly allow wide latitude in the admission of evidence because the trial judge is presumed not to give weight to incompetent evidence. Mashak v. Poelker, 367 S.W.2d 625, 626 (Mo.1963); Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 632 (Mo.App.1976) and Powers and Boyd Cornice Roofing Company v. Muir, 146 Mo.App. 36, 123 S.W. 490, 496 (1909). Therefore, no prejudice could have resulted here.

As to the second point raised, appellant fails. The judgment of a trial court will be sustained by the appellate court 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). On appeal from a court-tried case, where there is conflicting testimony given, and where there are no specific findings made, all fact issues are deemed to have been found in accordance with the results reached. Rule 73.01, subd. 1(b), V.A. M.R.; e. g., Richardson v. Richardson, 524 S.W.2d 149, 151 (Mo.App.1975).

Applying these principles of appellate review to the present situation, there appears no error. There were several fact issues raised at trial. First, there was an issue as to the terms of the agreement entered into on January 13. Secondly, there was an issue as to whether there was a material breach on the part of Direct when Direct failed to pay for the salesmen’s samples. Thirdly, there was an issue as to whether a special arrangement had been made to fill the Gellis and Wolff orders. The trial court made no findings of fact or conclusions of law, and therefore, in accordance with Rule 73.01, subd. 1(b), all fact issues are deemed to have been made in accordance with the results reached. It can only be assumed here, under our scope of review, that the trial court accepted Direct’s version of the terms of the contract, and found that there was no material breach on the part of Direct. It can further be assumed that because there was no material breach found, that Direct was allowed recovery for Spielberg’s breach in refusing to further perform. In addition, because Direct did admit that an agreement existed, and that it did owe Spielberg on the orders filled through April 1, it can be assumed that the trial court granted Spielberg recovery based on quantum meruit, rather than breach of contract. Hence, Direct did not benefit by its own breach of contract. Upon review of the record, we find all fact issues are sufficiently supported by the evidence to warrant the re-suits reached. Thus, appellant fails as to this point.

The judgment of the trial court is affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . We note that the case presented herein is an example of the type of case in which an attorney should consider requesting specific findings of fact and conclusions of law from the trial court.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Daniel WILLIAMS, Defendant-Appellant.
    No. 38864.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 16, 1978.

      James M. Smith, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant appeals from his conviction of first degree murder, first degree robbery, assault with intent to kill with malice and striking a police officer. On appeal, defendant raises four points of alleged trial error: (1) that a warrantless search of a bus station locker and seizure of the fruits of the robbery found therein was a violation of his Fourth Amendment rights; (2) that his statements admitting the commission of the murder and robbery should have been suppressed as being involuntary and made without an intelligent waiver of his Fifth Amendment rights; (3) that exclusion of a defense witness’ proffered testimony relating to defendant’s incoherent condition three days after the crime was improper because it was relevant to the voluntariness of his confessions; (4) that the identification procedures tying defendant to the crimes were faulty. We find no reversible error and affirm the judgment.

Carleton Curry was the State’s key witness linking defendant to the crime. Mr. Curry testified that just prior to entering the Seventh Street Lounge in St. Louis he heard shots from within. Curry observed defendant emerging from the tavern carrying a green money bag and viewed his face in daylight for about a minute at a distance of 8-10 feet. When Curry made inquiry of defendant as to what was happening, defendant opened fire on him. Curry fled and called the police giving the defendant’s description as being stocky, about 6'4" tall and wearing a polka dot coat and dark hat. Police responding to Curry’s call found the husband of the owner of the Seventh Street Lounge lying in the tavern, mortally wounded from a .22 caliber gunshot to the head.

Shortly thereafter, Curry was summoned to the Greyhound Bus Station by police. The police told him they “had a guy” who fit the description given to them by Curry. At the bus station Curry unhesitatingly identified defendant as the assailant and the person he had seen emerging from the tavern. He also gave in-court identification of defendant at trial.

A limited initial personal search of defendant at the bus station revealed a .22 caliber pistol with five spent cartridges, another gun without a cylinder and a wad of currency. Defendant was conveyed to the police station, and another search disclosed a lady’s gold watch and a bus station locker key. The victim’s ring and watch were also found in defendant’s possession.

At the police station, defendant became bellicose and kicked a police officer. He was forcefully subdued by a single night stick blow to the head. While handcuffed and being taken to the hospital by police for examination as to the extent of injury from the blow, defendant made an escape attempt and fell down some stairs, sustaining several cuts on his head. Although defendant never lost consciousness, he was rendered groggy by the fall. At the hospital, defendant’s head wounds were sutured, and while in custody, he gave four statements to police: two at the hospital emergency room; one at the police station on his return from the hospital; one the following morning, also at the police station. Each of the statements was given after the defendant was fully informed of his rights. Each statement was consistent with the other and completely incriminating, in that defendant stated that he had gone to the victim’s tavern intending to rob it; that he had scuffled with the victim, taken his watch and shot him several times.

About two hours after defendant’s arrest, police, without a search warrant, took the bus station locker key which had been found on defendant and opened the locker. The locker contained a green money bag described as the kind which had been taken from the Seventh Street Lounge and containing several rolls of coins. A bottle of whiskey of the kind sold in the tavern was also found in the locker.

Defendant’s counsel strongly objected to the introduction into evidence of the contents of the locker, particularly the green money bag, claiming a violation of defendant’s Fourth Amendment rights. The basis of the objection was that no warrant had been obtained to search the locker and that the warrantless search was not within any of the recognized exceptions by which such a search could be made. We find that we need not discuss the merits of the legality of the search, for we hold that defendant waived his objection to the admission of fruits of the search by failing to object to the admission of photographs depicting the items seized. The actual receipt of the green money bag into evidence was merely duplicative of what already had been submitted to the jury without objection. During the course of the State’s case, a series of color photographs was received into evidence without objection which showed the locker, its contents — including the money bag — rolls of coins and a bottle of whiskey. The photographs clearly and in full detail showed a green money bag of the exact kind taken from the Seventh Street Lounge. Also, rolls of coins which had been taken from the green money bag were apparent in the photographs, even to the extent of their denominations. The photographs, admitted without objection, depicted all items removed from the locker. The green money bag to which defendant did offer objection at trial was clearly shown, and the jury could make no mistake as to its identification. Inasmuch as the jury had for its unobjected viewing the photograph of the green money bag as it lay in the locker, defendant’s objection to the introduction of the bag into evidence was completely devitalized. Defendant cannot complain of the receipt of evidence where evidence of the same tenor — in this case, the same evidence (a green bag) — has been admitted without objection. State v. Eiland, 534 S.W.2d 814 (Mo.App.1976); State v. Patterson, 516 S.W.2d 571 (Mo.App.1974). See also State v. Simone, 416 S.W.2d 96, 100 (Mo.1967).

Defendant next contends that the inculpatory statements he made to police were involuntary and that there was no intelligent waiver of his right to remain silent. Defendant argues that the statements were made from fear of police brutality and that his injuries resulting from his escape attempt left him mentally torpid and unable to intelligently waive his rights. There was ample evidence at trial to refute defendant’s contentions in this regard. Hence, we are brought within the prevailing rule that on a hearing or motion to suppress statements, where the testimony conflicts as to the voluntariness of the statement, admission of the confessions by the trial court is a matter of discretion. State v. Carroll, 562 S.W.2d 772 (Mo.App.1978); State v. Blankenship, 526 S.W.2d 78 (Mo.App.1975); State v. Garrett, 510 S.W.2d 853 (Mo.App.1974). Without detailing the evidence, we find that the trial court had the benefit of considering all of the relevant testimony in the pretrial suppression hearing to establish that defendant’s statements regarding the perpetration of the crime were voluntary and intelligently made after having been given full and proper advice as to his Fifth Amendment rights. The mere fact that the defendant had been injured prior to his statement does not proscribe the use of such statements. State v. Ambus, 522 S.W.2d 306 (Mo.App.1975); State v. Thomas, 522 S.W.2d 74 (Mo.App.1975). Further, the fact that a lawyer was not present at the time the statements were given does not render them inadmissible. State v. Hunter, 456 S.W.2d 314 (Mo.1970). We find no abuse of the trial court’s discretion in admitting defendant’s statements.

Three days after the first three statements had been made and two days after the final statement was made, defendant was interviewed by his court appointed attorney. The attorney considered defendant to be incoherent at the time of the interview. The trial court refused to permit the defendant’s attorney to testify regarding the state of defendant’s mind on the ground that such testimony would not be relevant to defendant’s condition at the time the statements were made. As stated in State v. Proctor, 546 S.W.2d 544, 545 (Mo.App.1977), “[t]he determination of the materiality of evidence is a matter within the discretion of the trial judge, (cite omitted). Evidence is relevant if it tends to prove or disprove a fact in issue or corroborates relevant evidence bearing on the principal issue, (cite omitted). It is settled that doubts as to the relevancy of evidence should be resolved in favor of the admissibility of the evidence.” Defendant asserts that if he was incoherent three days after his statements to police, that it is logical to assume that he was incoherent at the time the statements were made. In this case, such reasoning is a non sequitur. There is nothing in the record to support defendant’s argument. By his own testimony, defendant established that following his return to the police station from the hospital after the statements had been made, he was in full possession of his thought processes and faculties even to the point of being able to give a vivid description of the events which occurred. Defendant’s chief complaint was that for the three intervening days between his return to the hospital and his meeting with his attorney he had no sleep. Thus, we believe it would be too speculative to infer that even if defendant was incoherent at the time of his interview with his attorney, that it was a product of the injury suffered three days previously or that any such incoherence stemmed from his injury. Defendant’s own testimony negates such a conclusion. The better practice would have been to admit the attorney’s testimony, but we find no abuse of the trial court’s discretion in rejecting the testimony of defendant’s counsel in this instance, as the counsel confessed complete lack of knowledge of defendant’s mental capacity at the time the statements were given.

Finally, defendant contends that it was error to have admitted witness Curry’s in-court identification of defendant. In support of this contention defendant argues that Curry misdescribed the color of defendant’s coat and that police unduly suggested to Curry that defendant was the guilty party by telling him that they “had a guy” who matched the description given to them. Defendant’s arguments are devoid of merit. We first note that defendant, who is 6'4" in height and 240 pounds in weight, was scarcely nondescript. But aside from that fact, Curry had a clear and unobstructed view of defendant in daylight for a full minute; he even spoke to him. He saw his face full front even while defendant was shooting at him. There was thus ample independent source for Curry’s in-court identification of defendant apart from the allegedly tainted show-up. State v. Radford, 559 S.W.2d 751 (Mo.App.1977). We are not impressed by the fact that police told Curry that they “had a guy” who matched the description given to police. State v. McDonald, 527 S.W.2d 46 (Mo.App.1975), is directly on point in this regard. In McDonald, police statements to a witness that they had “ ‘a subject’ in the car and wished her to ‘take a look at him’ ” were held not to be unduly suggestive. Further, Curry’s identification of defendant on seeing him outside the bus station as he alighted from his automobile was unhesitating and unequivocal. Neither are we concerned about Curry’s misdescription of defendant’s coat as polka dot when it was actually a tweed. Such inconsistency is a matter for the jury to consider and resolve. State v. Bady, 561 S.W.2d 748 (Mo.App.1978); State v. Radford, supra.

The judgment is affirmed.

WEIER and KELLY, JJ., concur.

      . Also, in his direct testimony, defendant disavowed any association with the locker and apparently lost standing to object to a lack of search warrant regarding the search of the locker. State v. Dodson, 556 S.W.2d 938 (Mo.App.1977).


author: HARBISON, Justice.

text:
    STATE of Tennessee, Petitioner, v. James WAYCASTER, Respondent.
    Supreme Court of Tennessee.
    Nov. 14, 1977.
    Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, for petitioner; Brooks McLe-more, Jr., Atty. Gen., Nashville, of counsel.
    Larry R. Dillow, Kingsport, for respondent.
   OPINION

HARBISON, Justice.

Respondent, James Waycaster, was charged by warrant issued in the General Sessions Court of Sullivan County with violation of T.C.A. § 39-4901, carrying a pistol for the purpose of going armed. After his conviction in the General Sessions Court, he appealed to the Criminal Court where his case was tried before a jury. He was found guilty and fined fifty dollars. In addition the Court imposed a jail sentence, to be suspended upon good behavior. The Court of Criminal Appeals, in a divided decision, reversed and dismissed the charges on the basis of the illegality of the arrest of respondent and inadmissibility of the pistol obtained as an incident to that arrest.

At the trial respondent admitted carrying the pistol, which was fully loaded, and his statements made to the arresting officers afforded ample evidence from which the jury could conclude that the weapon was being carried in violation of the statute. There was no objection to the introduction of the pistol as an exhibit, no suppression hearing requested, and no issue raised as to legality of the arrest or of the subsequent frisking of respondent, during which the pistol was discovered. A motion for a directed verdict made by counsel for respondent at the conclusion of the State’s evidence was predicated solely upon insufficiency of proof of intent to go armed.

In his motion for a new trial respondent did assign as error the legality of the arrest and lack of probable cause for the stopping of the vehicle in which he was riding. On appeal to the Court of Criminal Appeals, the assignments made in the motion for a new trial were listed. However, the assignment regarding the arrest was expressly waived, and it was not briefed in the Court of Criminal Appeals. The principal insistence of respondent on appeal, as in the trial court, was insufficiency of the evidence to show an intent to go armed.

Nevertheless, the Court of Criminal Appeals held that respondent’s arrest was unlawful, that the pistol should not have been admitted in evidence, and that the charges should be dismissed. Apparently it concluded that the trial judge should have himself raised the issue of the legality of the arrest and should have excluded the pistol from evidence on his own motion, without benefit of objection or request for a suppression hearing.

In this regard, we are of the opinion that the Court of Criminal Appeals was in error. For whatever reason, the legality of the arrest and the admissibility of the pistol simply were not developed as issues in the trial record. The defense concentrated upon lack of intent and offered numerous witnesses in support of that contention. We are of the opinion that questions were not sufficiently raised concerning the arrest or the admissibility of evidence to warrant summary reversal and dismissal by an appellate court, sua sponte, particularly in view of the express waiver contained in the appellate brief.

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated at the cost of respondent. The cause will be remanded to the trial court for entry of any further orders which may be required.

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


author: COOPER, Justice.

text:
    Marguerite Rosemond FUERST, Appellant, v. METHODIST HOSPITAL SOUTH, Appellee.
    Supreme Court of Tennessee.
    Jan. 9, 1978.
    Frank C. Byrd, Wayne Chastain, Jr., Memphis, for appellant.

      Armistead F. Clay and Fred Acuff, Jr., Pittman, Clay, Morgan, Gilliland & Saunders, Memphis, for appellee.
   OPINION

COOPER, Justice.

This cause is before us on appeal from the trial judge’s dismissal of the plaintiff’s action as being barred by the statute of limitations.

On July 22, 1975, the plaintiff, Marguerite Fuerst, filed a complaint in which she alleged, in substance, that she formerly had been employed as a nurse by the defendant, Methodist Hospital, that on April 2, 1974, she was discharged by the defendant on the basis of an unfounded complaint made against her by a patient at the hospital, and that this discharge was an unlawful termination of her contract of employment. In its answer, the defendant admitted that the plaintiff had been employed by it and then discharged, but denied that the discharge was improper.

On June 17, 1976, the defendant filed a motion for judgment on the pleadings, asserting inter alia that the plaintiff had failed to state a claim for relief. In his order overruling the motion, the trial judge stated that he was “of [the] opinion” that the plaintiff’s contract was terminable at will and that the plaintiff, therefore, could not establish a claim for breach of contract, but that he was nevertheless denying the motion to dismiss because the complaint might also be read to state a cause of action in tort.

Thereafter, the defendant moved to amend its answer to assert that the plaintiff’s claim had been brought more than one year after her cause of action had accrued, and thus was barred by the statute of limitations applicable to tort actions. The trial judge granted the defendant’s motion to amend, and dismissed the case sua sponte.

The plaintiff claims that the trial court was in error both in permitting the defendant to amend his answer so as to assert the statute of limitations as a defense, and in dismissing the action sua sponte on that ground, thus implicitly holding that the plaintiff had failed to state a claim for breach of contract.

Amendments to the pleadings are governed by Tenn.R.Civ.P. 15.01, which provides in pertinent part that

[a] party may amend his pleadings once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been set for trial, he may so amend it at any time within 15 days after it is served. Otherwise a party may amend his pleadings only by written consent of the adverse party or by leave of court; and leave shall be freely given when justice so requires. .

Here, the defendant attempted to raise an affirmative defense by an amendment to his answer. As he made this motion more than fifteen days after the answer had been filed, he could not do so as a matter of right. However, under rule 15.01 he could do so if given leave to amend by the court. See 5 Wright & Miller, Federal Practice & Procedure § 1278. The trial court, in its discretion, granted the defendant’s motion. In light of the language of the rule that “leave [to amend] shall be freely given,” it cannot be said that the plaintiff has shown that the trial court’s action constituted an abuse of discretion. Therefore, the action of the trial court permitting the defendant to amend its answer is affirmed.

In dismissing the plaintiff’s action as being barred by the one year statute of limitations applicable to tort actions, the trial judge also implicitly held that the plaintiff had failed to state a claim for relief for breach of contract.

It is well established that “a complaint' should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In making this judgment, the court should construe the complaint liberally in favor of the plaintiff. Holloway v. Putnam County, 534 S.W.2d 292 (Tenn.1976).

The trial judge appears to have based his ruling, in part, on his opinion that the employment in question was terminable at will, with the result that the discharge of the plaintiff by the defendant was not a breach of contract. It should be noted, however, that there is as yet nothing in the record from which it can be determined as a matter of law that the plaintiff’s employment was “terminable at will.” Therefore, a finding that the defendant’s actions did not constitute a breach of contract is premature.

In her complaint, the plaintiff has alleged her employment by the defendant, her discharge and the facts surrounding it, and that this discharge constituted a breach of a contract of employment. This is a sufficient statement of the nature of her claim to withstand a motion to dismiss.

Accordingly, the action of the trial court dismissing the plaintiff’s cause of action is reversed, and the case remanded for further proceedings not inconsistent with this opinion. Costs attendant the appeal will be taxed to the defendant.

FONES, HENRY, BROCK and HARBI-SON, JJ., concur.


author: FONES, Justice.

text:
    The TRANE COMPANY and Employers Insurance of Wausau, Appellants, v. Phillip D. MORRISON, Appellee.
    Supreme Court of Tennessee.
    Jan. 30, 1978.
    Luther E. Cantrell, Jr., Smith, Davies, Smith & Cantrell, Nashville, for appellants.
    Thomas R. Meeks, Clarksville, for appel-lee.
   OPINION

FONES, Justice.

Defendants, Trane Company and its insurer, appeal from a decree awarding permanent total benefits to employee, Phillip Morrison. Defendants admit plaintiff suffered a compensable injury and is entitled to benefits, but attack the admissibility and efficacy of the medical proof.

Plaintiff was injured on November 14, 1973. Following a myelography, an operation was performed on January 10, 1974, and an extruded disc removed from the L-4,5 space. On January 13, 1974, while still confined to the hospital, plaintiff slipped and fell in the bathroom. Plaintiff acknowledged that he fell on his buttocks, and that it was a hard fall rendering him semiconscious. However, there is no indication in the medical testimony that the fall contributed to plaintiff’s continuing pain and disability following the disc surgery.

He consulted a number of doctors but testified that none of the treatment administered improved his condition; that he had not worked since the November, 1973, accident and was not able to perform any work he was qualified to do.

The first assignment of error complains of the admission in evidence of the deposition of Doctor Balensweig on the ground that proper notice of the taking of the deposition was not given. The deposition of Dr. Balensweig was taken in New York City on August 25, 1975. The technical record contains a motion filed by defendant on December 15, 1975, excepting to the deposition of Dr. Balensweig on the ground that it had been taken and filed without notice, and an order entered February 10, 1976, reciting that the motion was heard on January 29th and overruled. At the trial of the ease on April 30, 1976, defendants’ attorney asked permission of the court to have the reporter mark as exhibits copies of letters “that were introduced as exhibits when we argued the motion pertaining to Dr. Balensweig’s deposition . . . .”

We must assume that when the letters were “introduced” at the January 29th hearing, proof was adduced with respect to when and by whom the letters were written, mailed, received or not received, as such evidence was necessary to determine the issue raised by the defendants. Defendants having failed to preserve that evidence in the bill of exceptions, we must conclusively presume that it was sufficient to justify the ruling of the trial judge. See Southern Foundry Supply, Inc. v. Spang & Co., 225 Tenn. 447, 470 S.W.2d 187 (1971).

We observe, parenthetically, that facially, if both letters were mailed on the respective dates shown, plaintiff’s notice was in compliance with Tennessee Rules of Civil Procedure 30.01 and 5.02 and defendants’ only remedy was to seek relief under Rule 30.02 prior to August 25, 1975, if they desired additional time or a change of place or other relief. Defendants’ reliance in their brief on T.C.A. 24-901, et seq., is misplaced.

Next, defendants contend that a portion of plaintiff’s disability resulted from the fall sustained while a patient at Baptist Hospital; that the negligence of the hospital was an intervening cause; that plaintiff failed to distinguish the amount of permanent disability that resulted from the work related accident from that disability as aggravated by the hospital fall; and therefore the trial judge’s award was erroneous. There is no merit to the first assignment of error.

Defendants’ contentions are fully answered in the cases of Forest Products, Division of Ludlow Corp. v. Collins, 534 S.W.2d 306 (Tenn.1976), Knox Porcelain Corp. v. Dockery, 223 Tenn. 64, 442 S.W.2d 607 (1969), Mallette v. Mercury Outboard Supply Co., 204 Tenn. 438, 321 S.W.2d 816 (1959), and Revell v. McCaughan, 162 Tenn. 532, 39 S.W.2d 269 (1931).

The remaining assignments of error raise the single question of whether there was any material evidence to support the finding of the trial court that plaintiff was totally and permanently disabled.

Defendants insist that Dr. Balensweig’s deposition was the only medical proof offered by plaintiff, and, as it failed to establish any causal relationship between the disabilities found by Dr. Balensweig and his job related injury, no award of permanent disability should have been made.

Defendants overlook the admission in their answer and the deposition of Dr. Arnold Meirowsky, filed pursuant to order of the trial judge to produce all the medical testimony available to the parties.

Defendants’ answer, after denying that plaintiff was totally permanently disabled, admitted that “Dr. Thomas Parrish, the treating and operating physician, had stated the complainant sustained a 15% permanent partial impairment to the body as a whole,” further asserted that defendants had offered benefits on that basis, and reasserted the offer as a continuing one. That pleading was in effect a binding admission for all purposes, that plaintiff sustained an accidental injury causally connected with his employment by Trane Company, and that his injury had resulted in a medically determined permanent partial disability.

Dr. Meirowsky examined plaintiff December, 1974, and performed a myelogram in January, 1975. The substance of his testimony was that plaintiff’s continuing pain and alleged poor results following this surgery by Dr. Parrish might be caused by a small disc fragment or scar tissue pressing against a nerve root. Dr. Meirowsky advised that plaintiff should consider a second operation to decompress the nerve root. He affirmed that plaintiff had and would continue to have permanent disability even following a successful second operation. However, it was his opinion that fifteen percent permanent partial disability was a generous rating.

Dr. Balensweig examined plaintiff on May 29,1975. His findings were essentially the same as Dr. Meirowsky’s but his recommendations were materially different. He did not recommend surgery “at this time.” He recommended trunk'exercises, injections of cortisone or demirol into the spinal canal and a pill called dilantin, for nerve root inflammation. When his deposition was read at the trial, defendants’ objection to the question and answer calling for Dr. Balensweig’s opinion as to the extent of plaintiff’s permanent disability was sustained. However, in response to another question Dr. Balensweig testified without objection, as follows:

“Even with the treatment, I don’t think he can recover completely. Without the treatment he is totally disabled.”

Dr. Balensweig apparently recommended, if his conservative treatment failed, the rhi-zotomy, which would involve cutting the sensory branches of the L-5 nerve root which he felt was causing plaintiff’s pain.

Dr. Meirowsky, whose deposition was taken after that of Dr. Balensweig, violently disagreed with any suggestion of a rhizoto-my or spinal canal injections.

Plaintiff was asked if he had sought or taken the treatments recommended by Dr. Balensweig and responded that he had attempted to, but had been unable to obtain them.

When causal connection and permanency of the injury have been established by expert medical testimony, the trial judge is not bound to accept the doctors’ opinions of the extent of the employee’s disability. In determining work disability as distinguished from clinical disability, the trial judge is entitled to consider the employee’s job skills, education and training, duration of disability, and job opportunities for the disabled. Employers Ins. Co. v. Heath, 536 S.W.2d 341 (Tenn.1976).

In reviewing the award of the trial court, it is not for us to determine whether we agree with his findings, but only whether there was material evidence to support those findings. Bevis v. Southern, 489 S.W.2d 35 (Tenn.1973).

Plaintiff, his brother, and his sister, testified that plaintiff’s only work experience was at Trane Company and at a restaurant, and he was only qualified for manual labor; that his efforts at even light work around the house and at his mother’s restaurant demonstrated that he could not hold such a job.

Affirmed. Costs are adjudged against defendants.

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


author: PER CURIAM.

text:
    James F. THRASHER and Jeffrey L. Searles, Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    March 13, 1978.
    Jerry H. Summers, Harold E. Brown, Chattanooga, Paul Antinori, Jr., Tampa, Fla., for petitioners.
    David L. Raybin, Asst. Atty. Gen., Nashville, for respondent; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

PER CURIAM.

Certiorari was granted in this case for the limited purpose of considering one aspect of the opinion of the Court of Criminal Appeals, dealing with the filing of the bill of exceptions.

Judgment of conviction was entered after a nonjury trial on October 29, 1975. ' No motion for new trial was filed. The bill of exceptions was both filed in the office of the Criminal Court Clerk and signed by the trial judge on January 28, 1976, ninety-one days after the entry of the judgment. The ninetieth day would have been Tuesday, January 27, 1976. This being neither a Sunday nor a legal holiday, the filing did not occur within ninety days as asserted on behalf of the petitioners.

Counsel for petitioners contends that an oral motion for an extension of time was made within the first thirty days following the entry of judgment, and was granted, but that a written order to this effect was not entered until thereafter. Although this statement is not supported by affidavit of counsel, it is accepted by the State in its reply brief. In all events there does appear of record an order dated January 15, 1976 purporting to allow an additional sixty days within which to file the bill of exceptions, and the order purports to have been entered nunc pro tune for November 26, 1975. The Court of Criminal Appeals held that this order was not supported by any factual recitations and could not be considered valid, although on its face the order states that it was “for good cause shown . . . Nevertheless, sixty days from November 26, 1975 would have been January 26, 1976, and, again, the bill of exceptions was not filed with the clerk or approved by the trial judge until January 28, 1976.

The State, in its reply brief, did not question the timeliness of filing of the bill of exceptions, and seemed to concede that an application for late filing should have been granted by the Court of Criminal Appeals, if made, pursuant to T.C.A. § 27-111. Further, it appears from the opinion of the Court of Criminal Appeals that it did in fact consider the evidence contained in the purported bill of exceptions, even though the record reflects lack of timely filing and absence of a proper application under T.C.A. § 27-111.

For this reason, we are of the opinion that petitioners have had the benefit of full appellate review as though the bill of exceptions had been properly filed. Accordingly the judgment of the Court of Criminal Appeals is affirmed at the cost of petitioners.