text:
    STATE of Missouri, Respondent, v. Lloyd ADAMS, Appellant.
    No. KCD 27721.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 12, 1976.
    Thomas M. Larson, Public Defender, Sixteenth Judicial District, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

A jury convicted the defendant of first degree robbery by means of a dangerous and deadly weapon and assessed punishment at imprisonment for fifteen years. On this appeal he claims prejudice because the verdict director deviated from MAI-CR, and because a defense exhibit introduced into evidence by the prosecutor was hearsay and otherwise without probative value.

The sufficiency of the evidence is not in dispute. It is enough to say that the State proved that defendant and two others, armed with shotguns, broke into the apartment of the victims and robbed them of money and personal documents.

The first contention of error is that the verdict director prejudicially deviated from MAI-CR 7.62 [robbery first degree by means of a dangerous and deadly weapon] as modified by MAI-CR 2.12 [as an active participant with others] by the omission of the conjunction and between paragraphs Third and Fourth and by using or instead of of in the clause beginning — then you will find the defendant guilty — which follows the numbered paragraphs. As given, the instruction under challenge reads:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on the 23rd day of May, 1974, in the County of Jackson, State of Missouri, Clyde Mitchell possessed lawful U. S. Currency and Coins, and
Second, that at that time and place the defendant, acting with others by means of a deadly and dangerous weapon took the property from Clyde Mitchell against his will by causing him to fear immediate injury to his person, and
Third, that the defendant took the property with the intent to permanently deprive Clyde Mitchell of the property and to convert it or any part of it to his own use,
Fourth, that the defendant knowingly and with common purpose acted together with the persons who engaged in the conduct submitted in the above paragraphs,
then you will find the defendant guilty or robbery in the first degree by means of a deadly and dangerous weapon.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.
If you do find the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon, you will fix his punishment by imprisonment by the Department of Corrections for a term fixed by you, but not less than five years, nor more than life imprisonment. (Emphasis supplied.)

Whenever an approved MAI-CR form applies under the law to the facts in a felony prosecution, Rule 20.02(c) excludes any other instruction on the same subject and a submission given in violation of this rule constitutes error, the prejudicial effect to be judicially determined. Rule 20.02(e).

The defendant cites two civil cases involving MAI verdict directors [Motsinger v. Queen City Casket Co., 408 S.W.2d 857 (Mo.1966) and Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974)] which hold that the omission of the conjunctive and between numbered paragraphs of the instructions constitutes prejudicial error. The logic of these holdings is that omission of the connective and allows a jury to find on a belief of less than all the submitted elements. Quality Dairy Co. v. Openlander, 456 S.W.2d 608, 610[3] (Mo.App.1970).

Although the instruction which the defendant calls in question here misses the connective and between two of the paragraphs, a finding of conviction could not be returned unless the jury believed beyond a reasonable doubt “each and all of the foregoing [submitted elements]”. This direction left the jury with neither doubt nor choice but to make a finding on each submitted fact. R-Way Furniture Co. v. Powers Interiors, Inc., 456 S.W.2d 632, 640[13,14] (Mo.App.1970). The instruction here is only verisimilar to those condemned in Mot-singer and Wilkerson cited by defendant, thus those authorities do not control our decision.

The defendant challenges the verdict director on the additional ground that the substitution of or for of in the clause which follows the numbered paragraphs caused confusion and prejudicial error. On the motion for new trial, the court considered this contention and concluded, nevertheless, that the jury understood that the word, properly typed, was intended to read of. We concur with the trial judge that the lapse was only a peccadillo from which prejudicial error could not have resulted.

The last claim of error relates to this trial incident: The police detective who had conducted the lineup which exhibited the defendant to the victims for identification was called as a witness for the State. He testified that he had recorded the responses of those viewing the lineup in his written report and that one of them made positive identification of the defendant, but that the other victim, Carla Mitchell, was not certain that the defendant was one of the robbers. On cross-examination, counsel for the defendant marked the report as a defense exhibit, established by the detective that the report was recorded in his hand at the time of the lineup and that Ms. Mitchell at that time was not positive of her identification of the defendant. Immediately following this cross-examination of the detective, the prosecutor offered the entire record into evidence. Counsel for defendant objected on the single ground that no proper foundation for the exhibit had been made. The court received the record in evidence over the objection.

On this appeal, the defendant claims only that the exhibit was hearsay and otherwise without probative value and thereby prejudicial. This contention departs from the trial objection of lack of foundation to receive the exhibit as evidence. A litigant may not shift or broaden his trial objection on appeal. State v. Larkins, 518 S.W.2d 131, 135[6] (Mo.App.1974).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: ROBERT R. WELBORN, Special Judge.

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY and News Tribune Company, Appellants, v. Evelyn D. MAJERSKY et al., Respondents.
    No. KCD 27805.
    Missouri Court of Appeals, Kansas City District.
    Dec. 8, 1975.
    Motion for Rehearing and/or Transfer Denied Jan. 12, 1976.
    Application to Transfer Denied March 8,1976.

      Tweedie Fisher, Jefferson City, for appellants.
    Thomas D. Graham, James C. Swearen-gen, Graham & Hawkins, Jefferson City, for respondents.
    Before SWOFFORD, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of circuit court affirming award of Industrial Commission of death benefits under Workmen’s Compensation Act to survivors of employee.

On February 13, 1973, Mr. Joseph Majer-sky, editor of the Jefferson City Post-Tribune, attended a chamber of commerce awards banquet at the Ramada Inn in Jefferson City. He was asked to “cover” the event for the paper by its managing editor and the newspaper company provided the ticket for Mr. Majersky. In covering the function, Majersky was required to write a news article for publication in the paper. He actually composed an article prior to going tb the banquet, but was obliged to call in any changes that might be required by unanticipated events.

The dinner was served beginning around 7:30 P.M. The main course was steak. Ma-jersky was seated at a table with several other persons and insofar as was noticed ate his meal without incident. He did, however, leave the table prior to dessert being served.

A short time later, he was seen in a restroom, coughing and attempting to drink water from his hand. He stated that he had something in his throat. His coughing became worse and he became unconscious. An ambulance was called and he was taken to Still Hospital. The doctor in charge of the emergency room there found Majersky cyanotic, without heartbeat or spontaneous breathing. As part of the emergency treatment, the doctor began intubation with an endotracheal tube in an attempt to supply oxygen. As he started to put the tube down, he saw a large piece of meat, three centimeters by three centimeters by two centimeters, right at the beginning of the trachea. He removed the meat with forceps but efforts to revive Majersky failed. The doctor stated that in his opinion death resulted from a lack of oxygen, the result of blocking of the trachea by a large piece of meat. “Cafe Coronary” was the term used by him to describe the occurrence.

A referee of the Workmen’s Compensation Division awarded death benefits under the Workmen’s Compensation Law, payable to the widow and children of the deceased. The employer-insurer appealed to the Industrial Commission. By a 2-1 opinion, the Commission affirmed the award of compensation. The Cole County Circuit Court affirmed the ruling of the Commission. This appeal followed.

In this court, appellants assert that the award of compensation was erroneous because there was not sufficient evidence of an “accident”, within the meaning of § 287-020 2., RSMo 1969, and further because there was not sufficient evidence that the accident, if any, arose “out of” employment, within the meaning of § 287.120, RSMo 1969.

On the first issue the finding of the Commission was as follows:

“The testimony of Dr. Thomas is that he discovered the piece of unchewed meat in the trachea (windpipe) beneath the fold of the epiglottis (cover of windpipe which ordinarily closes when one swallows). Of course, we will never know whether the large piece of meat became lodged in this position immediately upon swallowing it, or whether the employee regurgitated the piece of meat and it then became fixed in the position in which it was found upon subsequent inhalation. It is clear to us, however, that the piece of meat removed from the trachea by Dr. Thomas had effectively plugged the employee’s windpipe and that this obstruction directly caused his ultimate death from lack of oxygen. It is unimportant for our purpose here by what internal route the piece of meat made its entrance. Having made this seemingly obvious determination, we turn now to the question of whether or not the event constitutes an accident.
“Section 287.020.2, RSMo 1969 provides that:
‘The word “accident” as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.’
“We find that the event in question here precisely satisfied in every respect the statutory definition of an accident. It most certainly was unexpected and unforeseen. It happened suddenly and obviously very violently and vividly produced at the time objective symptoms not only of injury, but of impending death as well. Accordingly we must conclude that the death of the employee was the result of an accident within the meaning of the Act.”

Appellants question the conclusion that, regardless of the course of the passage of the piece of meat, the occurrence was an “accident.” They contend that, if the piece had been swallowed and then regurgitated, the testimony of the pathologist who performed an autopsy suggests that such an occurrence might have resulted from some internal condition of the deceased. They contend that, in such event, the producing cause would have been “natural in the sense of a physical malfunction and not an ‘accident’ * * *.” Appellants refer to the pathologist’s finding of hemorrhaging about the esophagus which he said is “usually” related to “something large having passed into the esophagus and it made an effort to dislodge something.” On cross-examination, the witness stated that the spasm and resulting hemorrhaging need not have been so caused and might have “many other internal causes.”

This testimony did not produce a situation in which the evidence showed the two possible causes of death, one compensa-ble and the other not, making any effort by the Commission to resolve the question necessarily conjecture and speculation. The objective evidence of the presence of the meat in the trachea, which the pathologist did not consider inasmuch as he found no obstruction, coupled with the testimony of the emergency room physician, adequately supports the Commission’s finding on this issue.

Appellants’ second contention is that the award of the Commission is erroneous because there was not sufficient competent evidence that the accident arose out of employment. This contention calls into play the provision of § 287.120 1., RSMo 1969, imposing liability upon an employer under the Workmen’s Compensation Law “ * * for personal injury or death of the employee by accident arising out of and in the course of his employment * * Appellants concede that the accident here occurred “in the course of” the employment and question only the existence of evidence to support the required independent finding (Gregory v. Lewis Sales Company, 348 S.W.2d 743, 745[1,2] (Mo.App.1961)) that the accident was one “arising out of” the employment.

This problem is one that has arisen repeatedly in Workmen’s Compensation cases. A fair summary of the law governing the application of this requirement is to be found in Heaton v. Ferrell, 325 S.W.2d 800, 803-804[2-5] (Mo.App.1959), as follows:

“ * * * An injury arises out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury, and in the course of the employment when it occurs within the period of employment, at a place where the employee reasonably may be, and while reasonably is fulfilling the duties of his employment or is engaged in doing something incidental thereto. But, recognizing the difficulty often encountered in applying broad legal principles to specific factual situations, our courts as frequently have said that no all-embracing definition of the phrase ‘arising out of and in the course of his employment’ has yet been framed, and have added the common-sense admonition that every case involving the quoted phrase should be decided upon its own particular facts and circumstances and not by formula. However, it may be helpful in consideration of the instant case to bear in mind that, before an injury may be said to arise out of the employment, it must have been a rational consequence of some hazard connected with the employment; that, generally speaking, the scope of the contract of employment furnishes the determinative test as to whether or not the accident is compensable as ‘arising out of and in the course of * * * employment’; and that cases involving construction and application of the quoted phrase usually have turned upon the point whether, under the particular circumstances of each such case, the injury arose from something which had become an incident to the employment.” (footnotes omitted)

See also Liebman v. Colonial Baking Company, 391 S.W.2d 948 (Mo.App.1965).

In this case, the evidence as to the circumstances of the employee’s death was uncontradicted. The employee attended the dinner at the direction of his employer and in the direct furtherance of the employer’s business. The employer was aware that the duty thus imposed upon the employee entailed the consumption of a meal because it provided a ticket for that purpose. The hazard of choking in eating is well enough recognized to have acquired a denomination in medical terminology of “cafe coronary.” In these circumstances, the accident clearly was “a rational consequence of some hazard connected with the employment.” Heaton v. Ferrell, supra. See Everard v. Woman’s Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51 (1938).

Appellants would further require that the hazard involved have been “a special risk peculiar to the employment” (citing Howard v. Ford Motor Company, 363 S.W.2d 61, 67[7, 8] (Mo.App.1962)) and argues that the risk of choking while eating was common to all partaking of the dinner and was not a special risk of the employment.

That the Industrial Commission so regarded the problem as involving “a special risk” is evident from its finding on this issue, as follows:

“We find that the injury and resultant death in this case had its source in circumstances in which the employee’s employment placed him. The employee’s dinner on the night in question was taken under unusual circumstances at the direction of his employer who furnished the ticket for that very purpose. We find evidentiary support for an inference that the employee took a different and greater risk than if he had been pursuing his ordinary personal affairs. Here the environment of the occasion — the fact that the head table had been served first and was ready to proceed with the program he was to report — the stress of finishing his meal so that he could be on and about his assignment — was a different circumstance than the ordinary leisurely consumption of an evening meal. While it may be true, as the employer contended in oral argument, that the choking was the result of bad eating habits, we find that it was the stress and tension of his particular assignment that night and the haste in which he felt he was required to consume his meal which caused the employee to lapse into the careless method of eating which caused him to choke to death.”

This court cannot say that this was an unreasonable inference for the Commission to have drawn as to the ultimate fact. Common experience teaches that a person who partakes of a meal as part of an evening of pleasure and entertainment is not faced with the same pressures as a man who partakes of the same meal as part of the duties of his employment and who is required to be alert to the developments of the occasion in order to carry out his employer’s mission.

. Certainly the issue here involved is not markedly different from that presented in Everard v. Woman's Home Companion Reading Club, supra. In that case an employee engaged in soliciting magazine subscriptions had lunch with his crew manager and other members of the crew. During the lunch period some activity on behalf of the employer occurred. In leaving the restaurant, the employee stuck a splinter in his foot from the restaurant floor. The case perhaps presented a question more directed to “course of” employment but the court also considered the question of “arising out of” and concluded that the Workmen’s Compensation Commission could have properly concluded that both requirements were met. Under the rationale of that case, had the death here occurred when the employee fell over an obstruction while leaving the site of the dinner, the accident would have been compensable. No difference in principle appears to be presented by the situation here involved, inasmuch as the fault of the employee is not a factor for consideration.

The parties have cited two cases from other jurisdictions which have considered a problem similar to that here presented. Appellants point to Klein v. Terra Chemicals International, Inc., 14 Md.App. 172, 286 A.2d 568 (1972). That case involved a choking death of an employee at a public restaurant. However, in that case the employee was not partaking of his meal because of any obligation, condition or incident of his employment.

More similar to this case is the case cited by respondents, Snyder v. General Paper Corporation, 277 Minn. 376, 152 N.W.2d 743 (1967). That case involved a Workmen’s Compensation claim arising out of the death of a salesman who choked on a piece of meat while eating in a hotel restaurant, where he had, at the direction of his employer, taken a customer to dinner with the hope of making a sale of the employer’s product. In a 4-3 decision, the Minnesota Supreme Court upheld an award of benefits.

Three of the members of the court who voted for affirmance of the award did so on the basis that the Industrial Commission was justified in concluding that the accident arose out of the employment. The essence of their views is found in the following statement (152 N.W.2d 749):

“ * * * The question is simply whether the employment is the predominant factor in exposing an employee, in a different manner and to a greater degree than if he had been pursuing his ordinary personal affairs, to a hazard which may or may not be peculiar to or exclusively associated with the employment, and which hazard, though part of the general working environment, may be in direct consequence of an injury-producing act or event produced wholly within or without the orbit of work done for the employer by the employee or others.”

One judge concurring specially reached a factual conclusion with which the finding of the Industrial Commission in this case is markedly similar. 152 N.W.2d 751.

There were three vigorous dissents, charging that the majority had obliterated the distinction between “course of” employment and “arising out of” employment. The finding of the concurring judge was attacked as without basis in the evidence. 152 N.W.2d 751-754.

That case is, of course, in no manner controlling upon this court. However, its persuasive value may not be ignored. Appellants’ contention to the contrary, it cannot be said that the majority of the court imposed liability on a positional risk basis, as the court did consider and weigh the increase in the hazard to the employee because of the obligation to his employer involved in partaking of the meal.

Given the primary obligation of the Industrial Commission in a case such as this and the nature of the court’s function on review, this court cannot say that “there was not sufficient competent evidence in the record to warrant the making of the award” (§ 287.490 1. (4), RSMo 1969) and therefore the judgment of the trial court, upholding the award in favor of the respondents, must be affirmed.

Judgment affirmed.

All concur.


author: DIXON, Judge.

text:
    Archie L. WELLS and Lawana F. Wells, Plaintiffs-Appellants, v. Deborah A. BELLMAN, Defendant-Respondent.
    No. KCD 27124.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Robert L. Shirkey, Kansas City, for plaintiffs-appellants.
    Donald L. Mason, Kansas City, for defendant-respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

A jury awarded plaintiffs Archie Wells and Lawana Wells $1,000 and $500 respectively for damages resulting from an automobile accident. Plaintiffs’ sole assignment of error is the trial judge’s refusal to grant a new trial on the issue of damages awarded. The claim is that the award was so shockingly and grossly inadequate that refusal to grant a new trial was an abuse of discretion.

Plaintiffs, so postulating their claim of error, cite and rely upon Mitchell v. Mosher, 362 S.W.2d 532 (Mo.1962) which clearly restricts the review of inadequacy of the amount of the award to an examination of the trial court’s discretion reversible only on a showing that trial court discretion to weigh the evidence was abused.

The plaintiffs established that after the accident they paid certain medical bills and lost work due to sickness or injury. The dollar value of these expenses exceeded the damage awards. Plaintiffs contend that since the jury found the defendant liable for the accident, the failure of the jury to give a larger verdict was against the weight of the evidence.

The flaw in plaintiffs’ contention is that the jury finding of liability against defendant did not require a finding that defendant proximately caused every post-accident ailment complained of by the plaintiffs. “A jury may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case.” Burr v. Singh, 362 Mo. 692, 696, 243 S.W.2d 295, 298 (1951); Young v. Kansas City Southern Railway Company, 374 S.W.2d 150, 153 (Mo.1964). In conflict with testimony that the accident caused plaintiffs to suffer numerous injuries was testimony that some of the plaintiffs’ ailments existed before the accident, some of the post-accident medical problems were unrelated to the accident, and some of the claims of injury were spurious. It is apparent that the jury chose to believe only so much of plaintiffs’ testimony which indicated that Archie Wells suffered damage in the amount of $1,000 and Lawana Wells suffered damage in the amount of $500, and that the jury chose to disbelieve the remainder of plaintiffs’ testimony relative to damages.

The trial court was vested with wide discretion in ruling on the motion for a new trial. As heretofore noted, review is limited to a determination of whether the trial court abused his discretion in exercising his function to weigh the evidence. Boehmer v. Boggiano, 412 S.W.2d 103 (Mo.1967). Evidence most favorable to the ruling of the trial court is considered (Mitchell v. Mosher, supra), but evidence that would have sustained a larger award is excluded (Young v. Kansas City Southern Railway Company, supra). If the damages award is founded upon any reasonably rational basis, it will be upheld as responsive to the evidence, and one possibility alone will suffice. Mitchell v. Mosher, supra.

In the case of Mr. Wells, one possibility is that the jury believed his testimony concerning the defendant’s negligence, disbelieved most of the testimony from him and his medical witness about his injuries, and believed the testimony concerning the minor strains he suffered.

In the case of Mrs. Wells, one possibility is that the jury believed the defendant negligently caused the accident, believed so much of the testimony that indicated that Mrs. Wells suffered minor injuries as a result of the accident, and disbelieved that she suffered any other damage as a result of the accident.

There was a reasonably rational basis to support the damage award as responsive to the evidence. It cannot be said that the court below abused his discretion in refusing to grant plaintiffs a new trial because of the claimed inadequacy of the verdict.

Affirmed.

All concur.


author: PRITCHARD, Chief Judge.

text:
    G_ R_ E_, Respondent, v. M_ M_ E_, Appellant.
    No. KCD 27407.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    H. George Lafferty, Jr., Kansas City, for appellant; Lafferty, Horowitz & Shurin, Kansas City, of counsel.
    James C. Jarrett, Kansas City, for respondent; Heavner, Jarrett & Kimball, Kansas City, of counsel.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and TURNAGE, J.
   PRITCHARD, Chief Judge.

Appellant ex-wife seeks to reverse a decree of specific performance of a separation agreement to convey 160 acres of land in Caldwell County, Missouri, to the ex-husband upon the grounds (Point I) that the ex-wife “entered into the separation agreement while under duress and not of her own free will”; (Point II) that the ex-husband “misrepresented material portions of the separation agreement and defendant entered into that agreement because she relied on those representations”; and (Point III) that the consideration given appellant for her promises to convey property was grossly inadequate and unfair and should not be enforced.

The parties were married December 22, 1944, and seven children, four girls and three boys, were born of the marriage. Appellant worked as a registered nurse off and on since 1943, and respondent worked as a letter carrier. In December, 1963, appellant learned from her 13 year old daughter that respondent had been having an incestuous relationship with her since she was eleven years old. Shortly thereafter, there was an argument and a confrontation about the incest, and according to appellant, respondent admitted to incestuous relationships with two of the daughters. On direct examination one of the daughters testified that respondent had sexual relations with her on more than one occasion. It is under this factual background that appellant raises the defense of duress in her execution of the separation agreement. As argued by her: “The mother found out about this shocking situation, separated from the father and filed for a divorce. As part of her desperate need to remove her daughters from further danger and avoid public humiliation she entered into a written separation agreement. She signed away her alimony and property rights and her children’s financial security while she was distraught, ashamed, confused and frightened.” The argument resulted in respondent moving from the home to another residence owned by the parties in Kansas City.

Respondent testified that appellant had mentioned the matter of his molestation of some of the girls. He denied that the girls made complaints to him and that they had made complaints or a statement to the juvenile authorities about his molesting them. Respondent testified that he did not coerce appellant into signing the separation agreement on April 16, 1964.

Shortly after the respondent moved out, appellant employed an attorney whom she saw about three times prior to the decree of divorce, and who drafted the separation agreement for her. The decree granted the custody of the four girls to appellant, and the three boys to respondent. The agreement provided that respondent convey to appellant a house and lot, the family home; and another two-family rental property, upon which was a $1,500 lien which they agreed to pay equally, to appellant. She was to have a 1961 Rambler automobile, all the family household goods and furnishings, and was to receive $200 child support for the four girls, subject to a credit of $150 per month income to appellant on the two-family rental property. Respondent was to receive the residence into which he had moved and was to pay the entire mortgage on it; and the 160 acre Caldwell County farm. Appellant waived her personal maintenance and support payments. Both agreed that the value of the rental property was $8,000, and that if appellant ever sold it, respondent was to have a credit of $8,000 toward child support.

The decree of divorce was granted on April 21, 1964. On December 31, 1967, the family home was destroyed by fire, and appellant collected the entire $10,000 insurance which she had on the house. She then received $2,000 from the sale of the lot. It is not clear from the record, but it seems that the rental property was condemned some 10 years after the separation agreement was entered into by the parties.

The rule of duress as a ground to avoid a contract is set forth in Wolf v. St. Louis Public Service Company, 357 S.W.2d 950, 954[4, 5] (Mo.App.1962), cited and relied upon by appellant, “The question in each case is whether or not the victim was so acted on by threats of the person claiming the benefit of the contract as to be bereft of the quality of mind essential to the making of a contract, and whether or not the contract was thereby obtained. 17 C.J.S. Contracts §§ 173, 174, 175.” (Emphasis added.) In this case there was no evidence of threats that the matter of the incestuous relationship would continue if the separation agreement was not entered into, and there was no evidence that the matter would be publicized upon failure to agree on a property division. All that appears is that the incestuous relationship of respondent with his daughters was the precipitating cause of the separation and respondent’s departure from the family home. There is no evidence that he again entered the home or continued the incestuous relationship. Appellant procured the drafting of the agreement from her attorney, and did not tell him of the charge of incest until after the agreement was signed.

There was further evidence that during the four-month period of separation, prior to the signing of the agreement, appellant worked as a registered nurse, taking care of critically ill patients in hospitals pursuant to doctors’ orders. She missed no days of work during this period.

Appellant’s own attorney discussed the matter of the property settlement agreement with her and on numerous occasions with respondent’s attorney. He went over the provisions of the property settlement agreement with appellant rather thoroughly, and he testified, “She’s a rather exacting and specific type of person, as I recall.” If he had thought she did not understand the agreement, he would not have advised her to sign it. “Q. Did Mrs. E_at any time during these negotiations prior to her signing the contract express to you the feeling that she was under duress or being forced to sign this contract? A. Under duress. Well, I think she signed it of her own free will.” She did discuss -the matter of the child molestation with him prior to the signing of the agreement, and she was an emotional person, easily upset. Appellant’s attorney did not have an appraisal of the properties, and his notes did not contain any values, but were concerned with what appellant wanted in the property settlement, which she detailed to him, and she was primarily concerned with keeping the city property.

Appellant’s cited case of Schoen v. Lange, 256 S.W.2d 277 (Mo.App.1953), does not aid her because as noted at page 282, “Ella signed the agreement notwithstanding competent legal advice and even urging by counsel to the contrary, but with the explanation to counsel that ‘it was either a case of signing that agreement or being excommunicated from her church’.” All of the evidence here, including the conflicts in testimony which are to be resolved by the trial court under Rule 73.01 3(b) as to credibility, show that appellant exercised her own volition in executing the agreement, and there is insufficient evidence to show that respondent exercised “any form of constraint or compulsion which is sufficient to overcome the will of a person of ordinary firmness and to induce him to comply with a demand to which he would not have yielded if he had been permitted to act of his own volition.” Schoen, supra, loe. cit. 256 S.W.2d 282[6 — 8]. Point I is overruled.

What has been stated above as to the facts show that appellant relied upon her own information, and not upon anything that she claims was misrepresented to her by respondent as to the income and values of the rental property. Appellant’s claim of misrepresentation rests upon her own testimony, and in this connection it is significant that although she testified that respondent falsely represented to her that the rental property had an $8,000 value, she denied that after the divorce she insured the property for $10,000. That denial was impeached by the production of the insurance policy on the property for $10,000. These matters were for the trial court to determine as to credibility, and no error appears. Point II is overruled.

The claim of inadequacy of consideration again rests upon conflicts in the testimony of appellant and respondent as to values of the property, again a matter for the trial court to determine. Reliance by appellant on McCarty v. McCarty, 300 S.W.2d 394 (Mo.1957), is misplaced, because there the wife, not being represented by an attorney, was overreached, and the court was careful to point out at page 402, that “ * * * this case is to be distinguished from those where each party was adequately represented by counsel * *

The judgment is affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    Dennis E. HESS, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27823.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.

      Gerald Kiser, Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   TURNAGE, Presiding Judge.

Dennis Hess appeals the refusal of the court to set aside his pleas of guilty and the judgment entered thereon as requested by his motion filed under Rule 27.26.

Hess had entered a plea of guilty to two charges of feloniously and knowingly selling marijuana. These pleas followed an agreement between Hess, his attorney, and the prosecuting attorney by which a third charge of feloniously selling marijuana was dismissed.

The court held an evidentiary hearing on Hess’s 27.26 motion. Hess based his claim of relief on the grounds his pleas were not voluntarily and knowingly entered because they were induced by promises that he would receive probation. He made the further assertion his counsel was ineffective because of his failure to respond to statements made by the court at the time probation was denied. He further asserts he is entitled to relief because the court denied him probation.

The evidence at the hearing on the 27.26 motion revealed that Hess was represented by Robert G. Duncan. Mr. Duncan testified he consulted with Hess a number of times about the three charges pending against him and about the pros and cons of Hess going to trial on all three charges of selling. Mr. Duncan stated there were not many pros and all of the relevant factors indicated the best hope for Hess was to enter a plea on two charges, have a third dismissed, and hope the judge would grant probation. Neither Mr. Duncan nor his partner Mr. Russell testified to any promise of probation they made to Hess.

Hess, in his testimony, did not state that any one had promised him probation, but stated he had been “led to believe” he would receive probation.

The transcript of the proceedings in which Hess entered his pleas of guilty was admitted in evidence at the hearing on this motion. This transcript shows the trial judge who took the pleas of guilty fully complied with Rule 25.04. The record shows the judge covered Hess’s physical and mental conditions, his comprehension of the consequences of the pleas, the range of punishment, his right to trial by jury, the availability of counsel, and the factual basis for the charges and his acknowledgment of his commission of these crimes. See Dill v. State, 525 S.W.2d 437 (Mo.App.1975). This record further shows the judge inquired of Hess if any threats, promises or inducements had been made to get him to enter pleas of guilty and Hess denied it. The court informed Hess the range of punishment was from five years to life and he acknowledged understanding this and again denied the existence of any promises or inducements for his pleas of guilty. The court further asked Hess specifically if anyone had indicated to him that if he entered pleas of guilty the judge would grant parole and Hess stated they had not. The court thereupon informed Hess that in all probability he would not grant parole or probation. After this the court again inquired of Hess if he was entering pleas of guilty and Hess replied he was.

On this appeal Hess claims the finding and judgment of the court in overruling his motion is clearly erroneous because the evidence showed that his pleas had not been voluntarily made and in fact such pleas were only entered because of the promises by his attorney that he would receive probation.

The review on this appeal is limited to a determination of whether the findings, conclusions and judgment of the trial court were clearly erroneous. Dill v. State, supra.

As shown above, the judgment of the court was supported by not only the preponderance of the evidence but all of the evidence. Resting as it does on such a firm foundation, finding that the guilty pleas were voluntarily and knowingly made cannot be termed to be clearly erroneous and must, therefore, be affirmed.

Hess further claims to be entitled to relief on the ground the court should have given him probation instead of a fifteen year sentence on each charge to run concurrently.

It is not possible to reach this question because “matters relating to the legality of orders pertaining to probation and parole do not come within the purview and scope of a proceeding under Rule 27.26, which provides a remedy for a prisoner who desires to attack the sentence as such.” Smith v. State, 517 S.W.2d 148, 150 (Mo.1974).

Hess’s final claim for relief is based on his allegation that he was denied effective assistance of counsel because his attorney failed to respond when the judge allegedly made statements outside the record and beyond the information contained in the presentence report at the time he denied probation. During the hearing at which the guilty pleas were entered and again at the sentencing some four months later, Hess expressed satisfaction with the services of his attorneys. It is likewise impossible to reach this contention. “The courts of this state have held that once a guilty plea has been entered the determination of the adequacy of representation is material only to the extent the incompetency of counsel bears on the issue of voluntar-iness and understanding.” State v. Garrett, 510 S.W.2d 203, 206[4-7] (Mo.App.1974).

For the above reasons, the judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Harold D. GOODMAN, Appellant.
    No. KCD 27937.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Thomas M. Larson, Public Defender, E. L. Messina, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   WASSERSTROM, Judge.

The jury found defendant guilty of driving a motor vehicle without the owner’s consent, in violation of § 560.175 RSMo 1969. On this appeal, defendant challenges the sufficiency of the State’s evidence to show the requisite criminal intent and he complains of the trial court’s denial of a continuance.

I.

The evidence showed that the car in question was owned by Mrs. Lola McCoy and was used by her nephew, Mr. Jerry McCoy. Jerry McCoy parked the automobile in front of his home shortly after 4:00 p. m. on November 29, 1974. When he went out to use the car at approximately 6:00 p. m., he found it missing. He called Mrs. McCoy who in turn reported the disappearance to the police.

A description of the automobile was broadcast, and Police Officer Robinett observed the automobile parked at a convenience store at about 10:00 p. m. that same evening. Robinett blocked the driveway with the police car and then proceeded to the McCoy automobile in which defendant was in the driver’s seat. Robinett noticed that the ignition was punched out, with wires hanging under the dashboard. Jerry McCoy testified that the ignition was intact and in working condition at the time he parked the car at 4:00 p. m. Mrs. McCoy testified that she had never given defendant permission to drive the car and that, in fact, she did not know him at all. Robinett testified that immediately after being arrested, defendant stated to him that he had just purchased the car at a tavern.

The foregoing evidence made out a submissible case. Criminal intent is an essential element for a conviction under § 560.175, and this requires a showing that defendant operated the motor vehicle knowing that he did not have the owner’s permission. Such knowledge may be inferred from circumstantial evidence; and the necessary inference may be drawn from defendant’s exclusive and unsatisfactorily explained possession of property proven to have been recently stolen. State v. Ransom, 500 S.W.2d 585 (Mo.App.1973) and cases therein cited. That permissible inference is greatly strengthened in the present case by the evidence of the punched out ignition and the twisted wires hanging below the dashboard. See State v. Crawley, 501 S.W.2d 31 (Mo.1973).

Defendant argues that the inference permissible from “unsatisfactorily explained possession” does not apply here for the reason that he did give Officer Robinett an explanation. It has long been settled by the decisions of this State that not every “explanation” given by a defendant serves to defeat the inference mentioned. The jury is privileged to disbelieve the explanation offered by the defendant, and if so disbelieved, then defendant’s possession stands unexplained. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 454 (Mo.1944); State v. Kennedy, 396 S.W.2d 595, 598 (Mo.1965); State v. Moore, 501 S.W.2d 197, 200 (Mo.App.1973); State v. Benfield, 522 S.W.2d 830, 833 (Mo.App.1975).

II.

Immediately prior to the selection of the jury, defendant’s counsel orally requested a continuance in order that defendant might shave and obtain a change of clothing. The record does not make the situation entirely clear, but it appears that defendant had been arrested the night before on an ordinance violation entirely different from the crime here on trial and he had been lodged in the city jail. The only showing in support of defendant’s application for continuance was the following unsworn testimony of the defendant:

“Q. Defendant has been in the City Jail for at least overnight, I believe; when were you arrested?
A. Last night.
Q. How long have you been in jail?
A. About 12 or 13 hours, probably.
Q. Have you been allowed to sleep during that period?
A. Well, I was allowed to sleep, yes; but couldn’t sleep.
Q. And when they called you over to Court, did they offer you an opportunity to shave at all?
A. No. I wasn’t allowed no phone calls. When I tried to call, I knew I was supposed to be here at 9:00 o’clock this morning to Mr. McBur-ney’s office, if it was possible for me to get here. I couldn’t call them.”

The State objected to the continuance, the prosecutor stating: “First of all, the defendant is not in jail garb, he is in city clothes. In fact, he is dressed quite adequately. The fact that he didn’t shave, I don’t believe is anything prejudicial. He has a light beard, and it is not that noticeable at all.” The court then overruled the application for continuance and stated his reasons as follows:

“The Court notes that the costume, of [sic] the garb, is ordinary sort of garb, no problem about it. As far as the shaving, it is apparent in that he stands immediately before the bench, that he has not shaved this morning; but it wasn’t obvious when he was sitting at the counsel table.”

Defendant’s oral motion for continuance failed to comply with Rule 25.08. State v. Boykins, 399 S.W.2d 70, 73 (Mo.1966); State v. Yeokum, 516 S.W.2d 535 (Mo.App.1974). However, we prefer to rule this point on a more fundamental basis, by answering defendant’s argument on the merits.

Defendant contends that the denial of a continuance forced him to go to trial with an unkempt appearance, thereby prejudicing him in the eyes of the jury. In support of that position he relies upon cases which hold that it is basically unfair to require a defendant to go to trial clothed in prison garb; and defendant urges that rule should be extended to the present situation. Preliminarily it should be mentioned that the rule pertaining to prison garb is not nearly so clear cut as defendant would have it appear. The cases are far from uniform in establishing an inflexible rule that requiring a defendant to go to trial in prison garb automatically constitutes reversible error. A number of decisions hold that such facts do not necessarily result in prejudice. Lenhart v. State, 503 P.2d 918 (Okl.Cr.1972); Alexander v. State, 493 P.2d 458 (Okl.Cr.1972); Atkins v. State, 210 So.2d 9 (Fla.App.1968), cert. den. 396 U.S. 859, 90 S.Ct. 128, 24 L.Ed.2d 111. The federal circuit courts of appeal differ in their approach to the question. Compare Anderson v. Watt, 475 F.2d 881 (10th Cir. 1973) with Brooks v. State of Texas, 381 F.2d 619 (5th Cir. 1967); Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); and Gaito v. Brierley, 485 F.2d 86 (3rd Cir. 1973). Missouri has no decision on this point although the Missouri Supreme Court stated by way of dictum in State v. Johnson, 499 S.W.2d 371, 374 (Mo.1973) that “defendant has a right to be present during his trial in civilian clothing * * * This problem concerning prison garb is presently before the United States Supreme Court and may receive a definitive answer in Estelle v. Williams, No. 74-676, argued October 7, 1975.

Whatever the rule may ultimately be with respect to forcing a defendant to trial attired in prison garb, even an inflexible rule denying such a practice would not apply in the present case. The rationale of the cases prohibiting prison garb in court is that making the defendant go to trial so attired violates his presumption of innocence. Here, however, the defendant appeared in court in his regular street attire. Since defendant went to trial in the present case in his usual civilian clothes, the rationale of the prison garb cases simply does not apply.

Moreover, there is a sharp distinction readily recognized between prison attire as compared to civilian clothes. Any court could immediately grasp that difference and apply a fixed rule prohibiting the prison garb. On the other hand, if the court were to be required to deal with differentiating between the appropriateness of various kinds of civilian clothes and as to whether a defendant at a given time is sufficiently clean shaven, the questions would evolve into infinite gradations. Certainly the defendant’s appearance in a given situation might be so deplorable that forcing him to trial in that condition would be fundamentally unfair. Whether or not the particular case is of that character must of necessity become a matter of sound judicial discretion rather than the subject of an inflexible rule of law.

The trial judge, compared to an appellate court, has a vastly superior position for the exercise of that discretion. In this case, the trial judge not only could observe the defendant’s appearance, but he preserved his observations and conclusions in the record for the purpose of appellate review. Since there is no convincing evidence to the contrary, the trial court’s conclusion that there was nothing prejudicial in the defendant’s appearance will not be disturbed. People v. Sanchez, 275 Cal.App.2d 226, 79 Cal.Rptr. 781, 785 (1969).

Affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Dennis DAY, Appellant.
    No. KCD 28004.
    Missouri Court of Appeals, Kansas City District.
    Dec. 31, 1975.
    Jon M. Krebbs, Asst. Public Defender, Liberty, for appellant.
    John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WASSER-STROM and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant, charged by an information under the Second Offender Act with robbery in the first degree (Section 560.120 RSMo 1969), was found guilty by a jury and his punishment was assessed by the court at twelve years confinement in the Department of Corrections. Defendant timely appealed.

On appeal, defendant’s dissidence with his trial is expressed in a single point which he claims entitles him to reversal of his conviction and remand of the case for a new trial — the trial court erred in permitting one of the state’s witnesses (Bonnie Miller) to testify that an alleged co-participant (Henry Loftis) told her that he committed the robbery in question. Defendant does not question the sufficiency of the evidence to sustain his conviction. A synopsis of the facts and certain procedural events will reveal (1) the nature of the state’s case and (2) the irreconcilability of defendant’s claim of error with the record.

On the night of November 4, 1974, Aldis Tuck, an employee of Clark Oil Company, was in the process of closing his employer’s service station located in Clay County, Mis souri. While doing so, two men entered the station. Tuck was struck on the back of the head and knocked down. He feigned unconsciousness and while doing so heard a sound which he described as a “bunch of banging”. He then heard the two men leave. After the two men left the station, Tuck observed that the “money drawer” in the station, containing in excess of one hundred dollars in coin and currency belonging to Clark Oil Company, had been removed and was missing.

During the course of the trial Tuck positively identified the defendant as one of the two men who entered the service station on the night in question. Henry Loftis appeared in the courtroom while Tuck was on the witness stand and was positively identified by Tuck as the man who accompanied defendant. Defendant, during presentation of his side of the case, managed to cast some doubt on Tuck’s identification of defendant and Henry Loftis as the two men who perpetrated the robbery. Consequently, the state called Bonnie Miller as a rebuttal witness for the professed purpose of “shoring up” Tuck’s identification of defendant and Henry Loftis. The state asked Bonnie Miller, a “girl friend” of Loftis, if Loftis told her that he had robbed the Clark Oil Company station. Defendant interposed a timely objection on the ground that the question sought to elicit an answer which would violate the hearsay evidence rule. The trial court overruled defendant’s objection and permitted Bonnie Miller to answer. To the state’s apparent surprise and consternation, Bonnie Miller denied that Henry Loftis ever made such a statement. Although defendant’s objection appears to have been well taken, Bonnie Miller’s negative answer rendered any claimed error associated therewith harmless. In view of Bonnie Miller’s negative answer, defendant’s claim of error literally defies any clear perception or understanding. The record itself reduces defendant’s single claim of error to a recondite status. Unfortunately, the briefs submitted by the parties fail to throw any light on this legal conundrum.

Probing the matter further, the record discloses that the state, after being rebuffed by Bonnie Miller’s negative answer, proceeded to cross-examine her by claiming surprise and hostility. Defendant made no objection thereto. The state proceeded to do so by having Bonnie Miller identify a written statement, bearing her signature and initials, which she had given to two detectives who interrogated her in connection with the robbery. In her written statement she inculpated Henry Loftis by certain remarks, the general tenor of which was he told her that he had committed the robbery in question. After Bonnie Miller identified the extrajudicial written statement she had made to the interrogating detectives, the state offered it in evidence. When the statement was offered by the state, defense counsel unequivocally stated, “I have no objection”, whereupon the court admitted the statement into evidence. The state then proceeded, without objection, to question Bonnie Miller by specific reference to certain portions of the statement regarding remarks contained therein inculpating Henry Loftis. Bonnie Miller admitted that she had made remarks to the interrogating detectives inculpating Henry Loftis, as evidenced by her written statement, but denied the truth and veracity of such remarks and contended that they were made solely for the purpose of her being released from custody by the interrogating officers. Defense counsel, in cross-examining Bonnie Miller at this juncture of the trial, utilized her written statement and obtained a reconfirmation from her that any remarks she made to the interrogating officers inculpating Henry Loftis were, in fact, untrue. The total effect of Bonnie Miller’s testimony, both on direct and cross-examination, is inconsistent with the single claim of error raised by defendant on appeal. Viewed in its totality, Bonnie Miller, both on direct and cross-examination, disavowed that Henry Loftis ever told her that he perpetrated the robbery in question.

Although defendant does not contend that his initial objection (which was overruled by the trial court) viably carried over to the remarks contained in Bonnie Miller’s extrajudicial statement inculpating Henry Loftis, the court will ex gratia view the matter in the perspective mentioned. After doing so, it is obvious that such a contention, if made by defendant, would be erroneous for the following reason. When defense counsel unequivocally stated that he had no objection to Bonnie Miller’s extrajudicial statement being admitted into evidence, any hearsay attribute attached to it with reference to remarks contained therein inculpating Henry Loftis was affirmatively waived. State v. McGee, 336 Mo. 1082, 83 S.W.2d 98,108 (1935); State v. Holbert, 416 S.W.2d 129, 131 (Mo.1967), reversed on other grounds; and State v. Starr, 492 S.W.2d 795, 801 (Mo. banc 1973). Hearsay evidence, although otherwise inadmissible, when admitted without objection, is in a case for all purposes and may be given its natural and logical probative effect by the trier of the facts. State v. Thomas, 440 S.W.2d 467, 470 (Mo.1969); and State v. Bradley, 515 S.W.2d 826, 828 (Mo.App.1974).

Judgment affirmed.

All concur.

      . See: State v. Hill, 352 Mo. 895, 179 S.W.2d 712, 716 (1944); State v. Cross, 357 S.W.2d 125 (Mo.1962); and State v. Newell, 462 S.W.2d 794 (Mo.1971).


author: FONES, Chief Justice. HENRY, Justice

text:
    V. L. COOPER, Appellant, v. RUTHERFORD COUNTY, Appellee.
    Supreme Court of Tennessee.
    Dec. 15, 1975.
    Dicken E. Kidwell, Murfreesboro, for appellant.
    William T. Sellers, Smith & Sellers, Mur-freesboro, for appellee.
   OPINION

FONES, Chief Justice.

In this direct appeal the appellant, V. L. Cooper, filed a suit for damages against the appellee, Rutherford County, as a result of the drowning death of his wife. The trial court dismissed the action under T.R.C.P. Rule 12.02(6) on the ground that the doctrine of sovereign immunity precluded recovery against the defendant county. We affirm the action of the trial court.

The following facts are alleged in the complaint: On December 24, 1974, at approximately 11:15 p. m., appellant’s wife had left work at the Rutherford County Nursing Home and was proceeding on the County Farm Road, a two lane black top road, toward her home when she “suddenly and unexpectedly” ran into the flood water of the Stones River, where the road crosses over the river. Her car was then carried downstream and she drowned. Mrs. Cooper’s automobile was in front of another automobile driven by a Mrs. Pitts who also drove into the water. Mrs. Pitts escaped from her automobile, but it was carried away by the water. The complaint also alleges that the night was dark and rainy, and there were no lights, markers, or signs in the vicinity where the road crosses the river.

Appellant argues that this action may be maintained on three (3) separate theories: (1) the County is liable in negligence because the doctrine of sovereign immunity should be abrogated; (2) the county may not escape liability by relying on sovereign immunity as it maintained a public nuisance by building and operating a dangerous road and bridge; (3) the dangerous road and bridge resulted in a trap created by the defendant county which precludes defendant’s reliance upon the doctrine of sovereign immunity.

I.

In support of his proposition that the doctrine of sovereign immuni+y "hould be judicially abrogated, appellant cites many cases in jurisdictions where this has been accomplished.

In 1973 the General Assembly of Tennessee enacted the Governmental Tort Liability Act, T.C.A. § 23-3301 et seq. T.C.A. § 23-3309 expressly removes immunity from suit for injury caused by the dangerous condition of any street, alley, sidewalk or highway, where construction or actual notice of such condition is alleged and proven. As originally enacted a local political body had the option to “exempt itself under certain conditions.” We assume Rutherford County to be exempt pursuant to T.C.A. § 23-3303 by the failure of appellant to raise the issue in response to the county’s plea of governmental immunity. In Johnson v. Oman Construction Company, 519 S.W.2d 782 (Tenn.1975) we considered this statute and stated:

“We do not regard this statute as dealing with the subject in a complete or comprehensive manner. We are reluctant to take judicial action in this area, however, without giving the General Assembly an opportunity to establish a comprehensive and uniform tort claims procedure governing suits against cities, counties and other political subdivisions or their agencies in the duly constituted courts of the state.” 519 S.W.2d 786.

Subsequent to the Johnson decision, the General Assembly enacted Chapter 252 of the Public Acts of 1975 which removed the option of the local government to exempt itself from the Government Tort Liability Act. Chapter 252 provides that the governmental units that have exempted themselves from the Act would automatically be subject to the provisions of that Act for all claims or actions arising after January 1, 1976. After that date, this category of tort claims will be stripped of the shield of governmental immunity in all of the counties and municipalities of Tennessee.

The legislature has given the local units what it considers to be appropriate time to adjust their procedures and take adequate steps to protect against the consequences of a change in the law of governmental immunity. It would be inappropriate for us to judicially accelerate the tort liability of counties in the present and prospective state of the law.

II.

The theory of nuisance has been urged in the Courts of Tennessee for many years, in an effort to circumvent the bar of governmental immunity. In many of the reported cases, the conclusion that the condition of the roadway or bridge complained of constituted a trap was alleged in support of the nuisance theory.

In Vance v. Shelby County, 152 Tenn. 141, 273 S.W. 557 (1925), the missing bridge was alleged to be a dangerous pitfall, snare, death trap and nuisance. In Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W.2d 455 (1943), an overflow of “clear” water across the highway that was said to appear innocuous but was alleged to be a death trap in support of the theory that the creation of a nuisance on the public road by the county superseded the bar of sovereign immunity.

Both Vance and Buckholtz reject the nuisance theory, as have other reported cases too numerous to mention. In short, counties, as distinguished from municipalities, have consistently avoided liability in such circumstances.

The history of tort liability of municipalities for negligence in the construction and maintenance of streets is contra. Cities were judicially declared responsible in tort for failure to keep roads in good repair as early as 1839 and the duty was statutorily imposed in 1913, along with a notice requirement.

In The Metropolitan Government of Nashville and Davidson County, Tennessee v. Allen, 220 Tenn. 222, 415 S.W.2d 632 (1967), the case history of cities and counties in this field of the law is recounted along with the reasons therefor.

There are numerous cases wherein plaintiffs have sought to extend the tort liability of cities beyond the narrow limits of negligent construction and maintenance of streets, by the use of the nuisance theory. In Powell v. City of Nashville, et al., 167 Tenn. 334, 69 S.W.2d 894 (1934), a city ordinance required a stop sign at the intersection of Second and Monroe, but the city failed to maintain the sign and its absence was said to constitute a nuisance. Obviously that theory was urged because this Court had previously held that the making and enforcing of ordinances regulating the use of the streets was a governmental function. Town of Gainesboro v. Gore, 131 Tenn. 35, 173 S.W. 442 (1915). The Court, in Powell, rejected the nuisance theory in the circumstances alleged, on the basis that the condition complained of involved an act of non-feasance. Parenthetically, the condition complained of in this case also involves non-feasance, not misfeasance.

III.

The only case in this state that has discussed the trap theory, as a cause of action separate and distinct from nuisance, is Sullivan v. Herbert, 225 Tenn. 564, 473 S.W.2d 453 (1971). There, as in Powell, failure to maintain a stop sign in place was alleged to have created a dangerous condition amounting to a nuisance. After rejecting nuisance as a basis of action, in accord with Powell, the opinion speculates that:

“. . . if this Court is to hold the failure to maintain a traffic stop sign at an intersection is actionable negligence, . it must be upon a case showing that the intersection is, in fact, virtually a trap, and as such, a causative factor in the accident. .
Such a requirement would not be harsh in view of the present general rule against liability.” 225 Tenn. 569, 570, 473 S.W.2d 455.

The Court’s observation was dictum and motivated by the desire to chip away a portion of the sovereign immunity doctrine. That particular approach has not been adopted by this Court and will not be in this case, in view of the present and prospective state of the Tennessee Governmental Tort Liability Act.

In conclusion, the principles of law in Vance and Buckholtz control the disposition of this case, and similar suits against the counties of this State that have excluded themselves from the Tennessee Governmental Tort Liability Act, until January 1,1976.

The decree of the trial court is affirmed. The costs are adjudged against appellants.

COOPER and HARBISON, JJ., concur.

HENRY and BROCK, JJ., dissent.

HENRY, Justice

(dissenting).

Governmental immunity is a cankered, corroded and corrupted area of our law. It is the flaming sword used by cities and counties in Tennessee to banish the innocent victims of their wrongs and deny them their traditional day in court. It has become the hallmark of governmental irresponsibility — the defense by which governmental entities stoop to conquer their own citizens.

It was with tremendous pride that I concurred in Johnson v. Oman Construction Company, Inc., 519 S.W.2d 782 (1975), wherein this Court unanimously denounced the doctrine of sovereign immunity as “an anachronism” and as “at variance with modern concepts of justice.” In effect, we said that we would give the legislature an opportunity to act, with the clear implication that if it did not we would. We recognized the Governmental Tort Liability Act (§ 23-3301 et seq. T.C.A.) and commented upon this Act:

We do not regard this statute as dealing with the subject in a complete and comprehensive manner. We are reluctant to take judicial action in this area, however, without giving the General Assembly an opportunity to establish a comprehensive and uniform tort claims procedure governing suits against cities, counties and other political subdivisions or their agencies in the duly constituted courts of the state. (Emphasis supplied). 519 S.W.2d at 786.

I wish to make it a matter of record that my concurrence was based upon an honest belief that if the legislature did not establish a “comprehensive and uniform” tort claims procedure, this Court would abrogate governmental immunity. We recognized and held, in effect, that the Governmental Tort Liability Act was neither comprehensive nor uniform.

Subsequent to Johnson v. Oman, the legislature adopted Chapter 252 of the Public Acts of 1975 which removed the option of local governments to exempt themselves from the application of the law, effective 1 January 1976. This made the law uniform but did not make it comprehensive and, of course, continued immunity for all cities and counties not electing to come under it until 1 January 1976.

Again in City of Memphis v. Roberts, 528 S.W.2d 201 (1975), this Court, addressing the statute waiving the immunity of cities and counties with respect to tort actions based upon the action of police officers, sheriffs, etc., unanimously declared:

Section 6-640 T.C.A. was wholesome legislation, designed for the partial correction of a problem which exists without justification or excuse, and, as Justice Harbison so eloquently stated in Johnson v. Oman Construction Co., 519 S.W.2d 782, 786 (1975), is “at variance with modern concepts of justice.” 528 S.W.2d at 205.

The profession took us at our word and in briefs and oral arguments made at the bar of this Court the lawyers of Tennessee have recognized our view that sovereign immunity is an “anachronism.”

The Sixth Circuit accepted our pronouncement at face value. In Sawyer v. Methodist Hospital, et al., 522 F.2d 1102 (1975) that Court said:

We recognize that in Johnson v. Oman Construction Co., 519 S.W.2d 782, 786 (Tenn.1975), the Tennessee Supreme Court expressed its dissatisfaction with the doctrine of sovereign immunity. Nevertheless, the court affirmed the dismissal of certain claims on the basis of governmental immunity, concluding that the doctrine should not be abrogated judicially without affording the Legislature an opportunity to act on this issue. Thus it appears that Tennessee may join the growing number of states that have abolished or substantially modified sovereign immunity.

I had thought that Johnson v. Oman sounded the death knell of governmental immunity in Tennessee, but our decision today restores it to a robust condition of sound good health.

Consistency demands that I abide our admonition in Johnson v. Oman and the Court’s hasty departure from its holding necessitates this dissent.

I.

The doctrine of sovereign immunity is deeply rooted in feudal notions of the divine right of kings. In feudal England the King was at the very pinnacle of the power structure and was answerable to no court since “the King can do no wrong”. Our courts proceed upon the general assumption that sovereign immunity is an established part of our common law. Such is not the case.

Sixteen years after the men of the Wa-tauga settlement organized the Watauga Association and adopted the first written constitution (1772) to be prepared on American soil and adopted by native Americans, who sought to remove themselves from the rule of British Colonial governors—

Twelve years after the American Colonies separated from the mother country by the adoption of their Declaration of Independence (1776)—

Eleven years after the Articles of Confederation were agreed to by the Continental Congress (1777)—

Eight years after the adoption of our Cumberland Compact (1780)—

Seven years after the Articles of Confederation were ratified (1781)—

Three years after the Constitution of the State of Franklin was adopted (1785)—

And one year after the Constitution of the United States was written (1787)—

And after Tennessee had adopted “the common law of England, as it stood at and before the separation of the colonies” [Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965)]—

A man by the name of Russell broke his wagon on a British Bridge and there ensued the historic case of Russell v. Men of Devon, 2 Term.Rep. 667, 100 Eng.Rep. 359 (1788). Thus the putative ancestor of governmental immunity came into being and thus was the English Common Law established — after we were no longer a part of England had severed all ties therewith.

As the style indicates this was a suit against the inhabitants of an unincorporated county.

This case turned on the propositions that it involved an unincorporated county having no corporate fund and no means of obtaining one; that it is better that an individual should sustain injury than that the public suffer inconvenience; and upon lack of precedent and fear of a multiplicity of suits.

It is an interesting footnote to history that his Majesty, George III sat on the throne of England when Russell was decided. He was another king who could do not wrong.

He has been called “the most famous case of manic-depressive insanity.” From time to time it was necessary that he be restrained by a straight jacket. His first attack came in 1765, when he was 27 years old. His second and most severe attack came when he was 50 years old and, oddly enough it was in that same year, 1788, that Men of Devon was decided.

To say that the King can do no wrong is to ignore Tudor despotism, royal roguery and every fact of an unsavory history of the Kings of England, at least up through George III which is the period here in question.

The Declaration of Independence recites:

The history of the present King of Great Britain is a history of repeated injuries and usurpations.

Thereafter, this magnificent declaration of our separation, absolving ourselves from all allegiance to the British Crown, lists 27 specific abuses and wrongs committed by a king who could do no wrong.

To say that we adopted as a part of our American Heritage, this portion of the common law representing the type of injustice from which we fled, is to ignore every fact of history and every facet of our early American aims and objectives.

And, of course, like so much of English law that we have so much difficulty in discarding, the rule of governmental immunity has long since ceased to exist in England.

II.

In 1812 when we were again at war with England — while an insane king who could “do no wrong” was ruling by regency and impressing our seamen on the high seas — a man named Mower moved his horse onto the Leicester Bridge with the result that the horse’s hoof hit a hole and the horse died.

The Massachusetts Court, in Mower v. Inhabitants of Leicester, 9 Mass. 247 (1812), immortalized the horse by resurrecting and revising the rule in Men of Devon and misapplying the same with the result that between the hoof of the horse and the mouth of the court a precedent was set which has plagued the profession, perverted justice and tormented the courts for more than sixteen decades.

There is a unanimity of agreement that this is the American ancestor of the immunity rule as we know it today.

Both Men of Devon and Mower have been widely criticized.

Professor Barnett, writing in 16 Ore.L. Rev. 250 (1937), refers to Mower as:

. a sorry application of the Russell case ... a combination of misguided logic and misapplied precedent.

In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the Court said that these two cases:

(h)ave set the tumbleweed in motion and nearly every state adopted the same theory as to sovereign liability for torts of its agents or employees, [citations omitted]. Even though this doctrine has subsequently been overruled in England, the rule still exists in most of the states of this country. 381 P.2d at 110.

In Spanel v. Mounds View, 264 Minn. 279, 118 N.W.2d 795 (1962), the Court said:

It was on this shaky foundation that the law of governmental tort immunity was erected in Minnesota and elsewhere. 118 N.W.2d at 797.

III.

We turn now to Tennessee, where the doctrine exists upon the quite erroneous and somewhat novel basis that somehow the state’s immunity trickles down to cities and counties and, therefore, they, as “arms of the state”, are also immune. This insistence will not withstand critical analysis for two reasons. First, the Constitution of Tennessee gives the state no absolute immunity and second, it gives the cities and counties no immunity. Assuming arguendo that the state is immune, it is sheer sophistry to say that Tennessee cities and counties also partake of the state’s sovereignty and as sovereigns are immune. This awkward theory borders on the ludicrous when we attempt to draw the illusory and elusive distinction between governmental and propriety activities.

Tennessee’s first constitution became effective on 1 June 1796. Article XI, Section 17, provided in pertinent part:

Suits may be brought against the State in such manner and in such courts as the legislature may by law direct: Provided, The right of bringing suit be limited to the citizens of this State. (Emphasis supplied).

In Shannon’s Annotated Constitution of Tennessee at page 148, it is suggested that the last proviso was “probably omitted because it was considered to be ineffectual and invalid.” At any rate, it does not appear in subsequent constitutions.

In the constitutions of 1834 (actually 1835 —it became effective 27 March 1835) and 1870 (effective 5 May 1870) the Declaration of Rights is transferred from Article XI to Article 1. Section 17 of each Article simply provides, in this regard that:

Suits may be brought against the State in such manner and in such courts as the legislature may by law direct.

The construction of this section does not require brilliance — just intellectual honesty. Clearly the authors of our Constitution have said in plain, simple and unambiguous terms that the state may be sued, leaving it to the legislature — not to determine whether — but the manner or procedure to be followed and to identify the appropriate courts. It is arguable that once the legislature has established courts, delineated their jurisdiction and outlined their procedures, the Constitution has been satisfied. It is not arguable, in my view, that the legislature has the right to nullify the Constitution by providing that suits may not be brought against the state.

The determination of our earlier courts on the matter of governmental immunity is of controlling significance.

The case of Mayor of Memphis v. Lasser, 28 Tenn. 757 (1849) was decided in the fifty-third year of our statehood. This was tort action against the City of Memphis seeking damages for personal injuries sustained when plaintiff fell into a deep well or cistern dug by the city at the intersection of two public streets.

The Court held:

(I)t is well settled at this day, both in England and America, that such a corporation (municipal) is liable to be sued in actions of tort in like manner as natural persons, (emphasis supplied). 28 Tenn. at 760.

It has always been a matter of peculiar interest, and admittedly some frustration and chagrin, to the author of this dissent that this court in Coffman v. City of Pulaski, 220 Tenn. 642, 422 S.W.2d 429 (1967) did not quote the foregoing language from Lasser, although it quoted extensively from that case. Nor did it quote the clincher conclusion of Lasser:

Municipal corporations are likewise liable for the wrongful acts and neglects of their servants and agents, upon the same grounds, in the same manner, and to the same extent as natural persons, (emphasis supplied). 28 Tenn. at 762.

Who were the authors of this clear rejection of the doctrine of sovereign immunity? We think it material that they be identified.

Tennessee’s three judge Supreme Court at that time was composed of Nathan Green, William B. Turley and Robert J. McKinney.

The name of Nathan Green is synonymous with superior legal craftsmanship in Tennessee. He was described by Dr. Robert H. White, Tennessee’s noted historian, as “one of the most illustrious men who ever occupied a position on the bench of the Supreme Court of Tennessee”. See Messages of the Governors of Tennessee, Volume Two, page 417. After his voluntary retirement in 1852 he was associated with Tennessee’s historic Cumberland University Law School. Unto this day his fame as a lawyer, judge and teacher of law has endured. Surely, he was a giant of the Tennessee legal profession.

Judge William B. Turley was from Clarksville. Goodspeed instructs us (page 394) that “his opinions are distinguished for their perspicuity, polished language and exact and logical reasoning”.

Judge Robert J. McKinney, of Greene County, served in the Constitutional Convention of 1834 and reference to its journal will document the fact that he was an active, informed and influential member of that body. Goodspeed instructs us (page 395) that “of the long list of illustrious names engraven in its temple of fame, none occupy a higher position than that of Robert J. McKinney.”

This was truly a remarkable court. Had there been any substance to any suggestion of sovereign immunity they would have known and recognized it. Had it been a part of our common law they would have applied it. Had there been any suggestion that the state’s immunity, if any, inured to the benefit of cities and counties they would have so held. Had there been any semblance of validity to the “arm of the state” theory, they would have applied it. Instead these three distinguished justices, speaking through Justice McKinney, who helped write the constitution, flatly rejected sovereign immunity by holding that a Tennessee Municipal Corporation was “liable to be sued in actions of tort in like manner as natural persons.”

Seven years after Lasser came Cole v. Corporation of Nashville, 36 Tenn. 162 (1856). The court proclaimed the law to be:

(T)hat corporations are liable for the wrongful acts and neglect of their officers and agents in the course and within the scope of their employment upon the same grounds, in the same manner and to the same extent that natural persons are liable for wrongs and negligence of their servants and agents. 36 Tenn. at 166.

The opinion by Justice McKinney was concurred in by Justices Harris and Robert L. Caruthers.

Justice Robert Looney Caruthers succeeded Judge Nathan Green. Goodspeed (page 395) tells us he was the “best advocate Tennessee ever produced.” He was a remarkable man. During the War between the States he was elected Governor of Tennessee, but did not take office. See Moore, Tennessee, The Volunteer State, p. 521. Like Judge Green he devoted his time after leaving the bench to teaching law at Cumberland University.

Again we have no sophisms and sophistries. Just hard-core law. Tennessee knew not sovereign immunity constitutionally or under the common law.

Ten years later, in the seventieth year of our statehood, there came before the court the case of Pesterfield v. Vickers, 43 Tenn. 205 (1866). This was an action for assault and battery committed by a policeman. The court alluded to two Tennessee cases, viz: (1) Humes v. Knoxville, 20 Tenn. 403 (1839) wherein the court held that Knoxville, as proprietor of its streets, was answerable for damages incurred by a private citizen, and (2) Lasser.

The Court held:

(T)hat a municipal corporation is not liable for the wrongful acts of its officers. 43 Tenn. at 213.

Neither Humes nor Lasser support such a holding.

The court cited also a Massachusetts case which was based upon “a sorry misapplication” of the Russell case.

Thus it was that in the seventieth year of our statehood, seventy-eight years after Russell v. Men of Devon, supra, there came into being in Tennessee the court decreed doctrine of governmental immunity.

Pesterfield suggests no constitutional question.

It was not even hinted that the city was an “arm of the state”.

It was not suggested that the common law was involved.

In fact, governmental immunity, per se, was not discussed.

The origin of the municipal immunity rule as it exists in Tennessee today, with its blurred distinctions, gray area differentiations and casuistic conclusions, is the case of Memphis v. Kimbrough, 59 Tenn. 133 (1873).

This is the first Tennessee case to draw a distinction between “corporate” and “public” duties. This case, as others which follow its reasoning, wholly fails to point out why a municipality is an arm of the state when exercising governmental functions and is not when exercising proprietary functions. Subsequent decisions of the courts are similar studies in frustration. This distinction, to quote Abraham Lincoln (on the sophism of an adversary) is “as thin as the boiled shadow of a homeopathic pid-geon”.

In the 109 years that have intervened since Pesterfield the Tennessee Supreme Court has never explained why governmental immunity exists and has never examined the arguments of history and policy as to its validity. I have not overlooked Coff-man, supra. The immunities were simply adopted because some other states and some text writers sustained them. They stayed here merely because they were here.

Parroting previous holdings has produced ludicrous results. A city is liable for negligent failure to keep its streets in safe condition, Mayor and Aldermen of Knoxville v. Bell, 80 Tenn. 157 (1883) but it sprinkles its streets in a governmental capacity, Connelly v. Nashville, 100 Tenn. 262, 46 S.W. 565 (1897). But a county maintains its roads in a governmental capacity and is immune. Davis v. Scott County, 222 Tenn. 559, 439 S.W.2d 102 (1969). A city is liable for a nuisance, Chattanooga v. Dowling, 101 Tenn. 342, 47 S.W. 700 (1898). A county is not liable for the commission of a nuisance. Hawkins v. Dawn, 208 Tenn. 544, 347 S.W.2d 480 (1961). The operation of a water plant is a governmental function, Smiddy v. City of Memphis, 140 Tenn. 97, 203 S.W. 512 (1918); it operates its water plant in a proprietary capacity, Williams v. Morristown, 32 Tenn.App. 274, 222 S.W.2d 607 (1949).

What a tangled web we have woven to protect and promote an unjust rule of law. All we can say with certainty is that in Tennessee today a city or county is answerable for ordinary negligence in the discharge of its corporate functions, but in its governmental capacity its employees are free to shoot fleeing misdemeants, in the back (Coffman); its fire department is free to fail to answer fire alarms [Irvine v. Chattanooga, 101 Tenn. 291, 47 S.W. 419 (1898)]; its police department may commit assault and battery [Combs v. City of Elizabethan, 161 Tenn. 363, 31 S.W.2d 691 (1930)]; it is free to employ a mentally ill chief of police and is unanswerable when he shoots a citizen without provocation (Bobo v. City of Kenton, 186 Tenn. 515, 212 S.W.2d 363 (1948). In short, the employees of Tennessee municipalities that have not elected to come under the Governmental Tort Liability Act are free to kill, murder and commit mayhem, when the city is operating in its governmental capacity unless the city has waived its immunities or unless a nuisance is created. And as I read the law, counties enjoy absolute and unqualified immunity in virtually all their operations.

They may be “low grade” corporations Chandler v. Davidson County, 142 Tenn. 265, 218 S.W. 222 (1919), but they enjoy high octane immunity status.

This is the unholy state of the law of our State today, brought on by blind adherence to an indefensible system of court-licensed negligence with attendant chaos and confusion, both in reasoning and in results.

This is the anachronism we spoke of in Johnson v. Oman Construction Company, supra, which my brothers of the majority would perpetuate.

IV.

Other American jurisdictions have weighed sovereign immunity in the balances and have found it wanting. The first assault upon the citadel was made in Florida in 1957 and resulted in the landmark case of Hargrove v. Cocoa Beach, 96 So.2d 130, 60 A.L.R.2d 1193 (Fla.1957). Since that time a majority of American jurisdictions have followed suit, the latest being New Mexico, which held in Hicks v. New Mexico, 544 P.2d 1153 (New Mexico 1975) that sovereign immunity is no longer a valid defense in tort actions against the state or its political subdivisions.

A fairly recent landmark decision made by the Supreme Court of Pennsylvania in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). The crux of the court’s holding, in a masterful opinion by Justice Roberts, is contained in the following sentence from the opinion:

We now hold that the doctrine of governmental immunity — long since devoid of any valid justification — is abolished in this Commonwealth. 305 A.2d 878.

I had dared to hope and believe that someday we might close out an opinion of this court with similar phraseology. Such result would cause the profession and the public to exclaim “we have a great Supreme Court”. Moreover, and of more importance, it would be just.

I condemn sovereign immunity. I believe that justice demands, reason dictates, morality mandates and elemental consideration of conscience decree a change in confidence in the quality of justice, which according to Daniel Webster, is “man’s greatest interest on earth”. Man’s eternal quest for justice is of equal dignity with his search for certainty.

I would condemn this legal monstrosity to the oblivion which it so richly deserves.

I am authorized to state that Mr. Justice BROCK joins in this dissent.

      . Guttmacher and Weihafen, Psychiatry and the Law. W. W. Norton & Co.

      . Stone was decided in 1963. At this time the majority of American jurisdictions had discarded governmental immunity.

      . The Tennessee Supreme Court was composed of only three judges from 1827 until 1860.

      . He was the grandfather of the late Chief Justice Grafton B. Green.

      .Goodspeed’s History of Tennessee from Earliest Times to Present (1887).

      . Abolished by judicial decision in Alaska, Arizona, California, Colorado, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New Jersey, Rhode Island, Wisconsin, Pennsylvania, District of Columbia and New Mexico. Abolished by statute in Hawaii, Iowa, New York, Oklahoma, Oregon, Utah and Washington.


author: COOPER, Justice.

text:
    LAWRENCE COUNTY HIGHWAY DEPARTMENT and Aetna Insurance Company, Appellants, v. J. W. HARDIMAN, Appellee.
    Supreme Court of Tennessee.
    Dec. 22, 1975.

      Keaton & Turner, Hohenwald, for appellants.
    Boston, Weatherford & England, Law-renceburg, for appellee.
   OPINION

COOPER, Justice.

This is a workmen’s compensation case. The employee, J. W. Hardiman, was found to be totally and permanently disabled, from a work-connected heart attack, and was awarded benefits accordingly. The employer and its insurance company appealed insisting primarily there was no material evidence to support the trial judge’s finding that the myocardial infarction arose out of and in the course of appellee’s employment, or his finding that the disability of appellee was causally connected with his employment.

Mr. Hardiman was employed by the Lawrence County Highway Department in April, 1972, and worked without incident until November 22, 1972, when he suffered a myocardial infarction that caused severe damage to his heart. Mr. Hardiman testified he was a tractovator operator and his work assignment called for him to use a shovel and to manually loosen and remove chert from the tractovator bucket at the close of each working day. While performing this task on November 22, 1972, he suffered chest pains, sweated profusely, and vomited. He stopped work and the pain and sweating went away “after a little while,” and he was able to finish cleaning the bucket. He and a fellow employee then left in Mr. Hardiman’s automobile to drive from the chert pit to the nearby town. Mr. Hardiman intended to go to his home and the passenger to go to the highway department garage. Both Mr. Hardiman and the employee testified that Mr. Hardiman vomited several times during the short drive. On reaching town, Mr. Hardiman went directly to the office of his family doctor and finding it closed, went immediately to the hospital emergency room where he was admitted for treatment. Mr. Hardiman remained in the hospital until December 3, 1972. He was readmitted to the hospital on December 12, 1972, suffering from a blood clot on the lung, and remained in the hospital under treatment until December 24, 1972.

Dr. James C. Hudgins, Mr. Hardiman’s family physician, testified that Mr. Hardi-man was hospitalized in October, 1970, for treatment of a “moderate” myocardial infarction and that, at that time, it was discovered that he had arteriosclerosis. Mr. Hardiman’s condition improved under treatment and he was permitted to return to work, the only caution being that he should do light work for a time. According to Dr. Hudgins, Mr. Hardiman had no further serious illness and worked without incident until November 22, 1972, when he was admitted to the hospital suffering from “acute” myocardial infarction as evidenced by his classic symptoms of sweating, shortness of breath, paleness of color, and chest pains. Dr. Hudgins also stated that vomiting “frequently” goes with a myocardial infarction. Dr. Hudgins was of the opinion the work stress of cleaning the tractor bucket on November 22nd aggravated the arteriosclerosis and caused Mr. Hardiman to suffer the infarction. He also expressed the opinion that the subsequent blood clot resulted from the extended bed rest prescribed in treatment of the infarction. Dr. Hudgins further testified that the infarction had caused extensive damage to Mr. Hardiman’s heart and that, as a result, he was permanently disabled from working.

The trial judge concluded “there was exertion on the job which overtaxed [appel-lee’s] heart muscles and brought on a heart attack.” He further stated that “whether the results took place immediately at the job site as the petitioner claimed they did, or whether it was on the way back to town as the defendant’s witnesses claimed they did, there [is] no question in the court’s mind that the exertion in the cleaning of the bucket caused the heart attack and the ultimate disability of the petitioner.”

Appellants point to testimony in the record that contradicts Mr. Hardiman’s testimony as to events that occurred on the job site and argue that “if Mr. Hardiman] can recover under these facts, i. e., the uncorroborated testimony of an employee in the face of overwhelming testimony of disinterested parties to the contrary, then indeed, this court was right when it said:

“ ‘One of the primary errors in the application of the Workmen’s Compensation Laws in the United States is confusing them with a form of social, insurance as found in Great Britain.’ Armstrong v. Liles Construction Co., supra, 215 Tenn. 678, 389 S.W.2d 261 at page 265 (1965).”

This argument is one to be made to the trial court, not this court. In workmen’s compensation cases this court does not reweigh the evidence or attempt to see where the preponderance of the evidence lies on appeal, but must affirm even though the preponderance is against the trial judge’s findings if those findings are supported by material evidence. Strader v. United Family Life Insurance Company, 218 Tenn. 411, 403 S.W.2d 765 (1966). Within the scope of our review of the record, there is material evidence in this case to support the trial judge’s finding that appellee is totally and permanently disabled as the result of a myocardial infarction caused by the physical exertion he expended in cleaning the tractovator bucket on November 22, 1972.

Appellants further insist the trial judge was in error in ruling that it makes no difference whether Mr. Hardiman suffered a myocardial infarction while at work or while on the way home from work, citing cases where benefits have been denied employees who suffered heart attacks while off from work. There is no iron-clad rule which calls for payment of benefits to an employee who is disabled from a heart attack while on the employer’s premises and for denial of benefits to an employee who is disabled from a heart attack that occurs while the employee is on the way home from work. The key to the recovery or denial of benefits is whether the disabling heart attack is precipitated by the physical activity and exertion of the employee’s work. See Coleman v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959), where, in discussing the causal relationship between employment and heart attacks, it was pointed out that:

“ ‘[We are] committed to the proposition of law that an employee who dies in the course of his employment as a result of a heart attack, although suffering from a previous heart disease, is covered under the Workmen’s Compensation Act even if the result was produced by ordinary exertion and usual strain of the work.’ ”

And,

“Some of these cases in which we have determined that if the physical activity and exertion of an employee’s work aggravates a pre-existing heart condition, precipitates the fatal heart attack, and thus hasten his death, such death is the result of accident arising out of and in the course of the employment within the meaning of our Workmen’s Compensation Law. Patterson Transfer Co. v. Lewis, 195 Tenn. 474, 260 S.W.2d 182; Heron v. Girdley, 198 Tenn. 110, 277 S.W.2d 402; Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S.W.2d 18; Lucey Boiler & Mfg. Corp. v. Hicks, 188 Tenn. 700, 222 S.W.2d 19.”

In the instant case the trial judge found as a fact, and there is material evidence to support his finding, that “the exertion in the cleaning of the bucket caused the heart attack and the ultimate disability of the petitioner.” In the face of such a finding, we agree with the trial judge that it is immaterial whether the heart attack occurred while appellee was in the chert pit or in the automobile on the way to town from the chert pit.

Appellants also question the trial judge’s action in allowing appellee to recover medical expenses incurred in the treatment of the pulmonary emboli (blood clot), contending there was no material evidence of causal connection between appellee’s employment and the condition. As heretofore noted, Dr. Hudgins stated that the blood clot was caused, in his opinion, by the prolonged bedrest required for treatment of the work-connected myocardial infarction. This testimony is sufficient to support the award of medical expenses.

Judgment affirmed. Costs are adjudged against appellants and their sureties.

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