text:
    Heber E. WRIGHT and Nita Kay Wright, his wife, Plaintiffs-Appellants, v. INTERCO, INCORPORATED, its Division P. N. Hirsch & Company, Defendant-Respondent.
    No. 38852.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 23, 1978.
    Donald M. Witte, Clayton, for plaintiffs-appellants.

      Evans & Dixon, Eugene K. Buckley; St. Louis, for defendant-respondent.

      . In addition to the slat type pallets just described, there are “smooth pallets” made with plywood. “[Tjhese are the type of pallets that they brought out with the freight on them to my trailer” and these were the ones used in the “shipping area.”

   WEIER, Judge.

Plaintiff Heber E. Wright was injured when he fell while climbing down the slats of a wooden pallet, which was normally used to move merchandise and which was leaning against a loading dock at defendant’s warehouse in St. Louis County. Plaintiff and his wife sued defendant for its alleged negligence in failing to remove this pallet (one slat of which allegedly had a beveled edge) or in failing to warn plaintiff of the allegedly dangerous condition of the pallet. At the close of plaintiffs’ case the trial court sustained defendant’s motion for a directed verdict. On appeal plaintiffs contend they made a submissible case of negligence. We disagree and affirm.

In considering whether the trial court erred in sustaining defendant’s motion for a directed verdict, we consider the evidence and all reasonable inferences which may be derived therefrom in the light most favorable to plaintiff. Wired Music, Inc., of the Great Midwest v. Great River Steamboat Company, 554 S.W.2d 466, 467[2] (Mo.App.1977).

On June 12, 1969, plaintiff drove a truck to defendant’s warehouse in Overland, Missouri, to pick up some merchandise. Prior to that date he had been to defendant’s warehouse “[s]ome forty or fifty times” during the ten-year period he had been a truck driver. At about 2 p. m. plaintiff backed his truck into door number 21 of the loading dock. The dock was about 300 feet long and contained 34 doors or docking stations. Door number one was at the south end of the dock and door number 34 was at the north end. There were two sets of concrete steps, one at each end of the dock, leading up to the elevated surface of the dock which extended along its entire length.

After backing in at door 21 plaintiff “found a pallet up against the dock and I climbed the pallet and went to the door that my trailer was backed into.” Each time plaintiff was at this loading dock he had seen “pallets up against the dock.” Other truck drivers also recalled seeing pallets in the area around the dock or “against the dock” prior to June 12,1969. Plaintiff said that on the day of the accident the dock area was “littered with pallets.” The pallets were made of unfinished wood and were normally used for stacking merchandise so the goods could be moved easily with a forklift. The slat type pallets, which were about four feet square, were made by nailing wooden slats to one or both sides of three two-by-four inch pieces of lumber about four feet long, commonly called “two-by-fours.” Each slat was about three quarters of an inch thick and three inches wide. They were nailed to the two-by-fours about two inches apart on one or both of the two inch sides leaving a space of approximately four inches for insertion of the fork of the lift machine. Plaintiff had seen slat type pallets stacked inside the building. He had used these pallets as if they were ladders other times prior to this date and no employee of defendant had ever told him not to “use these pallets.” The warehouse foreman once “said that where you got your rig backed in that is the way for you to get in.” He also “told me [plaintiff] that I had to go out the same way I came in.” The assistant foreman also told plaintiff “that I had come up that way, you go back down” or “go out the same way you came in.” Other truck drivers also used the pallets to get up and down between the dock and the asphalt surface of the parking lot when there were pallets leaning against the dock. Drivers also got up and down by jumping, pulling themselves up with the help of the back of a truck or by using the concrete stairs.

After climbing up this pallet and going to door 21, plaintiff was told to move his trailer to door 25. Plaintiff “got down off the dock on the same pallet” and moved his trailer to door number 25. He then climbed up to the dock using another pallet on the south (driver’s) side of his truck. Merchandise was brought out to plaintiff’s truck on pallets and plaintiff removed the goods from pallets and stacked them in his truck. Once during the loading process plaintiff climbed down the same pallet on the south side of his truck to get a pair of gloves out of his truck. He then got back up onto the dock by using the stairs at the north end of the dock and continued loading the truck. At about 5:15 p. m. when the truck was loaded plaintiff picked up some bills at the shipping desk, which was near door 21, and walked out of the warehouse and onto the dock through door 29. After checking to make sure the rear door of his truck was secure, plaintiff saw another different slat type pallet leaning against the dock on the north side of his truck. It was wedged underneath the wooden bumper of the dock. The pallet was sticking out about two inches and plaintiff could see it “was weathered quite a bit. It was a very dark gray color.” Plaintiff could see the “spaces between each of the boards but I couldn’t distinguish any other thing about it.” He did not know how this pallet got there. Plaintiff started to climb down the pallet sideways by placing the toe and side of each foot into the openings between the slats while one or both of his hands rested on the top of the dock. He stepped first with his right foot, then his left, then his right. When he put his weight on the right foot for the third step his foot slipped off the slat and he fell about two to two and a half feet to the pavement, landing on his arms and face. He broke his arm and sustained other injuries.

After gaining his composure plaintiff looked at the pallet and observed “[t]he board where I had placed my foot was beveled, the corner edge of it was beveled . the corner of the board was gone. Instead of being a square shoulder, why the shoulder was completely gone and it was a beveled edge.” The beveled part was not across the whole length of the board but only about six inches of it.

A mechanical engineer testified that a person’s foot would be more likely to slip off a beveled edged board than a square board.

The rules adopted by Missouri courts for determining whether defendant was negligent appear in Restatement of the Law of Torts, Second (1965) §§ 343 and 343A(1).

§ 343: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and “(c) fails to exercise reasonable care to protect them against the danger.”
§ 343A(1): “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107, 110[1, 2] (Mo.1974).

It is clear from plaintiffs’ petition and from arguments made by plaintiffs’ counsel at trial that the dangerous “condition” which plaintiffs contend defendant knew or should have known was not a pallet leaning against the dock which might be used as a ladder but rather the beveled edge on a slat of this particular pallet. “[A] case cannot be pleaded and tried in the trial court on one theory and on a different theory in the court of appeals.” Plumlee v. Ramsay Dry Goods Company, Inc., 451 S.W.2d 603, 605[6] (Mo.App.1970). See also, McIlroy v. Hamilton, 539 S.W.2d 669, 677[12] (Mo.App.1976). Plaintiffs’ arguments in their brief to the effect that defendant was negligent in allowing rough wooden pallets to be used as ladders is a different theory of negligence from that pled and tried in the court below and will not be considered on appeal. In order to make a submissible case of negligence against defendant, it was incumbent on plaintiffs to adduce evidence from which a jury could reasonably find that defendant knew (had actual knowledge) or in the exercise of reasonable care should have known (had constructive knowledge) that there was a beveled slat on a pallet which was leaning against the dock in a position to be used as a ladder. See, Ward v. Temple Stephens Company, 418 S.W.2d 935, 938[3] (Mo.1967).

Plaintiffs’ evidence failed to show that defendant had actual knowledge of the existence of this condition. Even though defendant’s employees were on the dock while plaintiff’s truck was being loaded there is no evidence that they saw the beveled slat from the dock. Indeed plaintiff testified that he did not see this imperfection in the pallet when he looked down at the pallet from the dock. Plaintiff did not know how this pallet got there and there can be no reasonable inference from the evidence that defendant’s employees put it there.

Plaintiffs’ evidence also failed to show that defendant had constructive knowledge of the existence of this condition. Plaintiff testified that he had climbed on two other pallets that day (by door 21 and on the south side of his truck at door 25) but there is no mention of this third pallet (on the north side of his truck at door 25) until plaintiff related what occurred after he finished loading his truck. Plaintiff said that after checking “the security” of the rear door of his truck he “turned and saw this • pallet against the dock on the north end of my rig.” Plaintiff then made up his mind that he would use the pallet. He walked over to the pallet, looked down at it, started climbing down the slats and fell after the third step. There is no evidence that this pallet was leaning against the dock for more than a minute or two prior to the time plaintiff used it. Under these circumstances defendant cannot be charged with constructive knowledge of the beveled slat on this pallet. Ward v. Temple Stephens Company, supra, 418 S.W.2d 935, 938-39[5-6] (Mo.1967). Pagano v. Kolbrener, Inc., 469 S.W.2d 745, 748-49[3] (Mo.App.1971); Richardson v. Safeway Stores, Inc., 379 S.W.2d 827, 828 — 29[2] (Mo.App.1964). Plaintiffs’ reliance on Brice v. Union Electric Company, 550 S.W.2d 629 (Mo.App.1977) is misplaced. In Brice the court held that defendant had constructive knowledge of a two and one-half to three inch nail protruding up from a board on its property because uniformed employees guarded the property, the cluttered, littered condition of disarray on the property had existed for two years, the nail protruded from a piece of crating and crating had been observed on the property for two years, and the board was weathered and imbedded in mud surrounded by growing grass with no grass in the depression from which the board was lifted. In the case at bar there was no evidence to indicate that the pallet with the beveled slat had been at the dock prior to the time plaintiff first noticed it, only a minute or two before his injury.

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.

      . Even if we were to consider this theory of negligence, it appears that defendant would not be negligent in allowing pallets to be used as ladders (assuming the evidence showed defendant had actual or constructive knowledge of this practice) in that defendant had no superior knowledge of this allegedly dangerous condition on its premises. Hokanson v. Joplin Rendering Company, Inc., supra, 509 S.W.2d 107, 110-11 [5-8] (Mo. 1974).


source: Caselaw Access Project

author: WEIER, Judge.

license: Public Domain

text:
    J & J WINDOW SALES, INC., Respondent, v. Frances J. MUELLER, Appellant.
    No. 38971.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 23, 1978.
    William G. O’Donnell, Clayton, for appellant.
    Paul A. Hennerich, III, Clayton, Homer N. Mastorakos, Mastorakos & Kopsky, Chesterfield, for respondent.
   WEIER, Judge.

Defendant has appealed from a judgment entered against her for the sum of $3,062 which is also declared to be a mechanic’s lien against certain real estate described in the plaintiff’s petition. This judgment ensued after a prolonged period which commenced according to the transcript with the filing of a petition on June 18,1975. Thereafter, on January 14, 1976, defendant filed an answer in which she admitted that plaintiff was a Missouri corporation, that she resided in St. Charles County, Missouri, and was the fee simple owner of the real estate described in plaintiff’s petition. She denied all other allegations in plaintiff’s petition. On March 29, 1976, ten interrogatories with numerous subinterrogatories were submitted to defendant by plaintiff. A motion to strike defendant’s pleadings for failure to answer these interrogatories and to render judgment by default in accordance with Rule 61.01(b) was filed by plaintiff on July 19, 1976. Plaintiff then sent a notice to defendant and her then attorney that the motion would be called for hearing. The court entered an order requiring the defendant to answer plaintiff’s interrogatories on or before the 15th day of October, 1976. The court at that time also added this interlocutory entry to its ruling on the motion:

“Upon defendant’s failure to comply with this order, defendant’s pleadings and Answer herein filed are to be stricken and judgment entered in favor of plaintiff on Count I of plaintiff’s petition for the sum of $3,062.00; together with interest at the rate of 6% per annum, from and after the 9th day of January, 1976; that said judgment be declared a mechanic’s lien against the realty as described in plaintiff’s petition; and for plaintiff’s costs herein expended and incurred.”

On October 15, 1976, the last day that the defendant was allowed to answer plaintiff’s interrogatories, she filed answers to eight of the interrogatories and objections to two. Plaintiff thereupon moved the court to grant it judgment in accordance with the court’s order because defendant had failed to properly answer plaintiff’s written interrogatories by October 15, 1976, as required in the order. A notice was then sent to plaintiff and her former attorney of record that this motion would be called before the court for hearing on January 21, 1977. The notice was dated January 17, 1977. On January 21, 1977, the court entered judgment against defendant in accordance with its order entered on September 24, 1976. On January 31, 1977, defendant filed a motion to vacate the judgment which motion was heard and denied on February 11,1977.

On appeal defendant’s contentions are three. First, it is contended the- trial court erred in entering judgment for plaintiff because defendant was not given reasonable notice that the motion for judgment would be heard. The facts do not support this contention. The notice was filed January 17, 1977, and bore upon it a certification by the attorney for plaintiff that a copy had been mailed to plaintiff on January 14, 1977. Defendant argues because even assuming that she could have received the notice on January 17 which was a Monday, she still was given only four days’ notice and that this was not reasona-. ble. Under Rule 43.01 service of a motion may be made upon a party by mailing a copy to him and unless otherwise specified, under Rule 44.01(d) a notice of a hearing on a motion is required to be served not later than five days before the time specified for the hearing. Rule 43.01(c) states: “Service by mail is complete upon mailing.” The time intervening between mailing the notice on January 14, 1977, and the date of hearing January 21, 1977, some seven days, was more than adequate.

Appellant next complains about the court’s action in entering judgment against her because the judgment “on its face it shows that it is irregular inasmuch as defendant had fully complied with the court’s order of September 24, 1976, and the provisions of Supreme Court Rule 61.01(b).” Reviewing the record, it clearly appears that defendant did not comply with the court’s order and with the provisions of the rule referred to. Interrogatories were filed March 29, 1976. The party upon whom the interrogatories had been served is required to serve a copy of the answers and objections within twenty days after service of the interrogatories. Rule 57.01(a). The record does not disclose that any formal order was entered on the answering of interrogatories until September 24, 1976, at which time the court ordered the defendant to answer the interrogatories on or before the 15th day of October, 1976. The record does not disclose any motion on the part of defendant to be allowed to file objections to the interrogatories by that time nor any court ruling allowing the late filing of objections. On October 15, 1976, the defendant failed to comply with the court’s order by answering only eight of the interrogatories. Defendant had already failed to comply with Rule 57.01(a) in observing the twenty day limit set out therein for the filing of answers after service of interrogatories. Defendant failed to comply with the court’s order. The court was acting well within its prerogatives under Rule 61.-01(b) in imposing the sanction of striking the defendant’s answer and rendering judgment by default against her. Speaking on this matter in State ex rel. Jones v. Reagan, 382 S.W.2d 426, 430 (Mo.App.1964), we said:

“If the trial court had no power to enter a default under these circumstances, then the rule has no purpose, and the answers to interrogatories could never be compelled. Whether or not defendant had an answer on file is not in point. Under the aggravated circumstances showing defendant’s utter disregard for various orders of court and notice of motions, the trial court exercised its discretionary power to enter judgment by default for defendant’s failure to answer interrogatories.”

It is noted that the motion to vacate the judgment was filed January 31, 1977, well within fifteen days after the judgment was rendered on January 21, 1977. This is a timely motion and is as effective as though it were denominated a motion for new trial. Although it would extend the time within which the trial court might consider it (Rule 78.06; Gorzel v. Orlamander, 352 S.W.2d 675, 677[1] (Mo.1961)), the court on February 11, 1977, well within the thirty days after rendition of the judgment on January 21, 1977, (Rule 75.01) and after argument of counsel, denied the motion to set aside the judgment. At the time this occurred, in remarks which were transcribed and supplied to us in the record on appeal the court patiently described the course of events culminating in the order of September 24, 1976. It was pointed out that the judge had ordered the interrogatories be answered on or before October 15, 1976, and had set out in the order the .consequences of the defendant’s failure to answer. The judge stated that he did not know how he could have made a more specific order for requiring answers by that particular date. We are in complete agreement that the court exercised its discretion properly in the matter and exhibited a very patient attitude toward defendant on her failure to comply with discovery rules. We are further mindful of the fact that the court had another excellent reason to deny defendant relief which was not mentioned at the time. This we will call upon now in denying defendant’s last contention on appeal: that the court erred when it failed to consider that defendant had a good defense to the action.

Nowhere in the motion to set aside the judgment is there any allegation of facts which would indicate that defendant had a meritorious defense. Merely alleging that the defendant had a meritorious defense is a conclusion. The facts constituting the proposed defense must also be set forth in detail so the court may judge whether it is meritorious and sufficient. The motion to set aside the judgment in its fourth paragraph said: “That Defendant has a good and adequate defense to the allegations of Plaintiff’s Petition.” Even though this may be considered to be a timely motion for new trial, as a prerequisite to obtaining the relief prayed for, it was incumbent upon the defendant to prove in some manner that she had a meritorious defense to the action. Gorzel, supra at 678[2, 3]; see also, Luce v. Anglin, 535 S.W.2d 504, 508[6, 7] (Mo.App.1976); State ex rel. Diners’ Financial Corporation v. Swink, 434 S.W.2d 593, 596[3] (Mo.App. 1968). Defendant’s unverified answer merely denied the controverted allegations in plaintiff’s petition. According to the transcript the motion to set aside the judgment was not verified. There were no affidavits in the transcript in support of this bare statement and no testimony was offered at the hearing of the motion.

It is apparent that the court below had good reason to enter judgment against the defendant after failing not only to comply with the court rules in regard to filing answers to interrogatories but also with respect to the court order imposing the sanction of a default judgment in the event that defendant failed to file answers by a certain day. Furthermore, defendant has failed to show any fact which would indicate that she had a meritorious defense to the action in her motion to set aside the judgment. This in itself was sufficient justification for the court to deny the motion. Gorzel, supra at 678[2, 3].

The judgment is affirmed.

GUNN, P. J., and KELLY, J., concur.


author: HARBISON, Justice.

text:
    OLD REPUBLIC INSURANCE COMPANY, Appellant-Defendant, v. Wylie BLANKENSHIP, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Jan. 30, 1978.
    Earl R. Layman, Knoxville, for appellant-defendant.
    H. Calvin Walter, Knoxville, for appellee-plaintiff.
   OPINION

HARBISON, Justice.

This is the second appeal of a workmen’s compensation case in which the employee claims benefits for disability from coal worker’s pneumoconiosis, T.C.A. § 50-1102.

Initially petitioner contended that he was automatically entitled to total permanent disability benefits under the Tennessee Workmen’s Compensation Act because he had been awarded benefits from the Social Security Administration under the Federal Coal Mine Health and Safety Act of 1969. Both the Chancellor and this Court held that such an award was not binding or conclusive upon the state courts in determining entitlement to workmen’s compensation under T.C.A. § 50-1102.

In its original opinion, the Court reversed and remanded for reconsideration, being unable to determine from the record whether the trial court had considered the criteria and standards set out in T.C.A. § 50-1102. Further, the record contained none of the medical evidence upon which the Social Security Administration had based its determination. Blankenship v. Old Republic Ins. Co., 539 S.W.2d 23 (Tenn.1976).

Despite the fact that both parties were specifically accorded an opportunity to introduce further proof upon remand, the only additional evidence introduced consisted of some medical reports which had been used in the proceedings before the Social Security Administration. These records were introduced by agreement and were considered by the Chancellor. The employer offered no further medical testimony and relied upon that which it had submitted at the first trial.

Upon consideration of the entire record, including the original testimony of the employee, the Chancellor concluded that the evidence justified an award of total permanent disability pursuant to and under the criteria and standards set out in T.C.A. § 50-1102. The employer offered evidence that the employee does not have pneumoco-niosis and that his physical disability is due to other causes. On the other hand, the medical records from the Social Security proceedings indicate the contrary and contain findings that the employee in fact does have pneumoconiosis, although not advanced to the “complicated” stage. There is also material evidence to support the finding that the employee’s lung condition significantly contributes to his inability to work.

One of the assignments of error on behalf of the employer is that the Chancellor treated the presumptions provided in the federal statute and regulations as being irrebuttable. We do not find that this occurred. The previous opinion of this Court made clear that the Chancellor was free to make his determination independently of that made by the federal administrative agency, and based upon all of the evidence which the parties wished to submit to him. In making this determination, of course, the trial judge is free to consider the evidence which was before the federal agency, if offered before him by consent or ir. conformity with the rules of evidence. While not bound by the federal agency’s conclusions, he is not prohibited from considering and evaluating the proof which was before it.

The employer did not see fit to introduce any additional medical testimony, or even to submit the medical records from the Social Security Administration to its medical witness for examination and evaluation. In the last analysis, the Chancellor had before him in this case, as in so many compensation cases, conflicting medical evidence from which he had to make a determination. By statute he was required to use the same presumptions, standards and criteria as are used by the federal administrative agency in making its determination. It is clear from the record that he made his own independent evaluation of all of the testimony before him. He decided that any permissible inferences or presumptions favorable to the employee were not rebutted by the employer’s evidence and concluded that the employee was totally permanently disabled from coal worker’s pneumoconiosis within the purview of T.C.A. § 50-1102. We find material evidence to support that determination and accordingly affirm his decree, at the cost of appellant.

The cause will be remanded to the trial court for the entry of such further orders as may from time to time be necessary and appropriate.

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


author: BROCK, Justice. HENRY, Chief Justice,

text:
    STATE of Tennessee, Petitioner, v. Bruce Edward TAYLOR, Respondent.
    Supreme Court of Tennessee.
    Feb. 27, 1978.

      Robert A. Grunow, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Fernand D. Brackstone, Memphis, for respondent.
   OPINION

BROCK, Justice.

We granted certiorari in this case to consider issues identical to those which we have discussed fully and decided in State v. Hudson, Tenn., 562 S.W.2d 416 (1978) and our decision in the Hudson case controls the disposition of this case.

The victim in the instant case was a pregnant young woman who was walking down a street in Memphis when she was accosted by the defendant who drove up beside her in his automobile, stopped and tried to persuade her to join him. When she refused, he gdt out of the automobile, seized her by the hair and threatened her with a drawn pistol. When she resisted his dragging her toward his car by the hair, he shot her in the chest and abdomen, thereby killing her unborn baby. He then grabbed her purse and sped away.

In the trial court the defendant was convicted of assault with intent to commit murder in the first degree, T.C.A., § 39-604, for which he was sentenced to imprisonment in the penitentiary for not less than 3 nor more than 21 years; of robbery with a deadly weapon for which he was sentenced to confinement in the penitentiary for a period of 25 years, T.C.A., § 39-3901; use of firearm in committing a felony, to wit: assault with intent to commit murder in the first degree, for which he was sentenced to confinement in the penitentiary for not less than one nor more than five years, T.C.A., § 39 4914; and carrying a dangerous weapon with intent to go armed, T.C.A., § 39-4901, for which he was sentenced to confinement in the workhouse for 11 months, 29 days and was fined the sum of $50.00. The sentence for the T.C.A., § 39-4914, offense was ordered to run consecutive to the other sentences but all other sentences were ordered to run concurrently. The Court of Criminal Appeals reversed the conviction for use of a firearm in committing a felony, T.C.A., § 39-4914, holding that it was merged into the conviction for armed robbery; the other three convictions were affirmed. We have this day decided in State v. Hudson, supra, that T.C.A., § 39-4914, does not create a separate offense, but increases the punishment for one who commits a felony by use of a firearm. Therefore, upon the authority of the Hudson case, we hold that the Court of Criminal Appeals did not err in reversing and dismissing the conviction for using a firearm in commission of a felony. However, as we did in the Hudson case, we direct the trial court, upon remand, to vacate the judgment entered with respect to the conviction for assault with intent to commit murder in the first degree and using a firearm in committing a felony and, in lieu thereof, to enter a judgment for assault with intent to commit murder in the first degree by means of using a firearm and to revise the sentence for the assault conviction by providing that the punishment for that offense shall consist of the two sentences fixed by- the jury for the assault and the use of a firearm in committing a felony convictions, those two sentences to run consecutively.

For the reasons expressed in State v. Hudson, supra, we affirm the judgment of the lower courts with respect to the conviction for carrying a dangerous weapon with intent to go armed, T.C.A., § 39-4901.

Likewise, we affirm the conviction for armed robbery for the reasons stated in State v. Black, Tenn., 524 S.W.2d 913 (1975) it being a separate offense upon the facts shown in this record.

Other errors alleged by the respondent have been considered but found to be without merit and they are, accordingly, overruled.

This cause is remanded to the trial court with instructions to vacate the judgment entered with respect to the convictions for assault with intent to commit murder in the first degree and using a firearm in committing a felony and, in lieu thereof, to enter a judgment for assault with intent to commit murder in the first degree by means of using a firearm and to revise the sentence as hereinabove set out. The judgment of the trial court with respect to the offenses of armed robbery and carrying a dangerous weapon with intent to go armed is affirmed. Costs incurred in this Court are taxed equally against the State and the defendant.

FONES, COOPER and HARBISON, JJ., concur.

HENRY, C. J., concurs in part; dissents in part.

HENRY, Chief Justice,

concurring in part and dissenting in part.

For the reasons set forth in my dissent in State v. Hudson, 562 S.W.2d 416 (Tenn. 1978), I dissent from so much of the majority opinion as affirms the conviction for carrying a dangerous weapon with intent to go armed. I concur in all else.


text:
    STATE of Tennessee, Petitioner, v. John DeWitt McDOWELL, Jr., Respondent.
    Supreme Court of Tennessee.
    Feb. 27, 1978.

      Robert A. Grunow, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Stanley Fink, Memphis, for respondent.
   OPINION

BROCK, Justice.

This is a companion case to State v. Hudson, Tenn., 562 S.W.2d 416 (1978) decided this date. It involves issues identical to those discussed and decided in the Hudson case respecting T.C.A., § 39-4914 and 39-4901.

We briefly state the facts out of which this prosecution arose. The defendant visited the home of his former girl friend and engaged in an argument with her and two male visitors. During this time the defendant struck the woman, waved a pistol, then fired the weapon through a door and wounded one of the men. These facts served as the basis for the following action in the trial court:

(1) Defendant was convicted for assault with intent to commit murder in the second degree and was sentenced to confinement in the penitentiary for not less than two nor more than five years;

(2) Defendant was convicted for using a firearm in the commission of a felony, T.C.A., § 39-4914, for which the jury fixed a punishment of imprisonment for not less than two nor more than five years, but the trial judge reduced the penalty, making it a sentence of not less than one nor more than five years in the penitentiary;

(3) Defendant was convicted of carrying a dangerous weapon with intent to go armed, T.C.A., § 39-4901, for which he was punished with a fine of $50.00.

The Court of Criminal Appeals in a split decision reversed and dismissed the convictions for use of a firearm in the commission of a felony and carrying a dangerous weapon with intent to go armed, holding that these offenses were lesser offenses included within the offense of assault with intent to commit murder in the second degree. We granted certiorari to consider the construction and application of T.C.A., § 39-4914 and 39-4901. For the reasons stated in our opinion in State v. Hudson, supra, we hold that T.C.A., § 39-4914, does not create a separate offense but authorizes increased punishment for one who commits a felony by means of using a firearm. Therefore, we hold that the conviction based upon that • section of the Code cannot stand. As we did in the Hudson case, supra, we correct this error by directing the trial court upon remand to delete the separate conviction for using a firearm in commission of a felony, T.C.A., § 39-4914, and to revise the judgment for assault with intent to commit murder in the second degree by specifying that the assault was “committed by means of using a firearm, to wit: a pistol.” We further direct that the punishment for the assault conviction shall consist of the two sentences fixed by the jury for the assault and the use of a firearm in committing a felony conviction, those two sentences to run consecutively.

Likewise, for the reasons expressed in our opinion in State v. Hudson, supra, we hold that the conviction for carrying a dangerous weapon with intent to go armed may stand and we, accordingly, reverse the decision of the Court of Criminal Appeals with respect to this offense and affirm that of the trial court.

Therefore, we remand this cause to the trial court with instructions to vacate the judgment entered with respect to the convictions for assault with intent to commit murder in the second degree and using a firearm in committing a felony and, in lieu thereof, to enter a judgment for assault with intent to commit murder in the second degree by means of using a firearm and to revise the sentence, as hereinabove set out. The judgment of the trial court with respect to the offense of carrying a dangerous weapon with intent to go armed is affirmed. Costs incurred in this Court are taxed equally against the State and the defendant.

FONES, COOPER and HARBISON, JJ., concur.

HENRY, C. J., concurs in part; dissents in part.

HENRY, Chief Justice,

concurring in part, dissenting in part.

For the reasons set forth in my dissent in State v. Hudson, 562 S.W.2d 416 (Tenn.1978), I dissent from so much of the majority opinion as affirms the conviction for carrying a dangerous weapon with intent to go armed. I concur in all else.


author: HENRY, Chief Justice.

text:
    Linda Gail Page HARRIS, Appellant, v. KROGER COMPANY, INC. and Pacific Employers Insurance Company, Appellees.
    Supreme Court of Tennessee.
    April 3, 1978.

      Sam E. Wallace, Jr., Nashville, for appellant.
    Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for appellees.
   OPINION

HENRY, Chief Justice.

This is a workmen’s compensation action in which the employee appeals from a judgment awarding her additional temporary disability benefits but denying her any .benefits for permanent partial disability or any reimbursement for medical expenses incurred in seeking a doctor chosen by the employee without consulting her employer.

I.

It is undisputed that appellant injured her back on October 1, 1975, in an accident arising out of and in the course of her employment as a produce worker at appel-lee’s supermarket. Appellant was taken to the emergency room of a local hospital, where she was treated and referred to Dr. John Lamb, an orthopedic surgeon. Dr. Lamb saw her over the next month and a half until November 24, 1975, when he released her for work. At that time Dr. Lamb told appellant that she would be capable of lifting up to fifty pounds.

Appellant felt that she needed further medical treatment, and her employer arranged for her to see Dr. Jack Miller in early December. When shé was told of her appointment, however, appellant replied that she had other plans and was unable to see the doctor. In fact, she never saw Dr. Miller nor contacted her employer to arrange for another appointment.

Upon the expiration of the leave of absence given her because of the injury, appellant failed to return to work. As a result of this, and because she did not keep her appointment with Dr. Miller, appellant’s employment was terminated on December 17, 1975. Her employer’s workmen’s compensation carrier paid the medical bills resulting from her visits to Dr. Lamb and the emergency room.

In the meantime, on December 4, 1975, appellant, without informing her employer or expressing any discontent with the treatment she had received, saw Dr. Lloyd Walwyn, another orthopedic surgeon. The appellant complained of pain and suffered from muscle spasms. Dr. Walwyn treated her with muscle relaxants and physical therapy until October 28,1976. By January 14, 1976, her “symptoms were subsiding”; but Dr. Walwyn did not advise her to return to work. The doctor testified that, even though she “improved a little” during the months in which he treated her, her condition remained essentially unchanged. However, he did not advise her against seeking employment when she informed him in February 1976 that she was looking for a new job.

II.

The appellant makes two contentions. First she insists that the Chancellor should have awarded her benefits for permanent partial disability as well as extending her temporary benefits. Appellant argues that there are “no facts in evidence which would lead a reasonable man to believe that there is, in fact, no injury here.” We disagree.

Dr. Lamb testified that after appellant’s initial visit he could make no objective findings of any back injury. Her final examination was “completely normal.” X-rays taken by both doctors revealed no injuries to the spine. When asked whether she would have any permanent disability, Dr. Lamb testified that it was safe for him to say that any disability would be “very minimal.”

Dr. Walwyn found no objective signs of disability other than muscle spasm. Although he testified that appellant suffered from a 10% disability to the body as a whole, he was unable to state whether the disability would continue. When asked about the permanency of her condition, he replied, “I think it will continue for an indefinite period of time. I can’t say it will continue permanently. I don’t know.”

The extent and degree of disability, if any, in a workmen’s compensation case, once determined by the trial court, is binding upon this Court if supported by any material evidence. Bradford v. Control Data Printing Co., 498 S.W.2d 100 (Tenn.1973). Likewise, medical causation and the permanency of an injury must be established by medical testimony; and the burden of establishing these essential elements is upon the employee. Mazanec v. Aetna Insurance Co., 491 S.W.2d 616 (Tenn.1973).

Mindful of these basic principles and the evidence adduced at trial, we cannot say that the Chancellor erred in refusing to award appellant any permanent disability benefits.

Appellant’s second contention is that she is entitled to reimbursement for the medical expenses resulting from her visits to Dr. Walwyn. She bases her argument upon the alleged failure of the appellee to provide a panel of three doctors from which she might choose her treating physician. See Sec. 50-1004, T.C.A.

This Court has refused to hold that in every instance the failure of the employer to furnish a panel of doctors renders the employer liable for expenses for doctors chosen by the employee. See Employers Insurance of Wausau v. Carter, 522 S.W.2d 174 (Tenn.1975). Whether an employee is justified in seeking additional medical services to be paid by the employer without consulting him depends upon the circumstances of each case. Rice Bottling Co. v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963).

Addressing this same issue and holding that the employee was not entitled to reimbursement, this Court stated in Emerson Electric Co. v. Forrest, 536 S.W.2d 343, 346 (Tenn.1976):

In Procter & Gamble Defense Corp. v. West, 203 Tenn. 138, 310 S.W.2d 175 (1958), it was pointed out that “the intent of the statute was for the employee to certainly do not less than consult his employer before incurring the expenses called for by that statute if the employee . expects the employer to pay for it.” And where the employee incurs medical expenses on his own, the employer is not liable for payment of the expenses absent a showing by the employee that he had a reasonable excuse for not consulting with his employer before incurring the expenses. Rice Bottling Company v. Humphreys, 213 Tenn. 8, 372 S.W.2d 170 (1963).

In this case, as in Emerson, supra, the employee incurred medical expenses without expressing any dissatisfaction with the treatment her employer had already provided. Concealing the work-related nature of her injuries, she sought out Dr. Walwyn without consulting appellee or asking its authorization. Appellant explains her actions by stating that she felt “confused,” “helpless,” and “despondent” and wished to insure objective treatment. She has shown no reasonable excuse for her failure to consult with the appellee before seeing Dr. Walwyn.

The decree of the Chancellor is affirmed.

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


author: FONES, Justice.

text:
    STATE AUTOMOBILE MUTUAL INSURANCE CO., Appellant, v. Burtis CUPPLES, Appellee.
    Supreme Court of Tennessee.
    April 24, 1978.
    David R. Farmer, Jackson, for appellant.
    George L. Morrison, Jackson, for appellee.
   OPINION

FONES, Justice.

Defendant appeals from a workmen’s compensation award of thirty-five percent permanent partial disability to the body as a whole.

Defendant insists that this claim is barred by the statute of limitations and that there is no material evidence to support the award of permanent partial disability.

Suit was filed one year and four days after the date of the injury but within one year of the date of the last medical treatment.

Plaintiff was employed by a beer distributor insured by defendant when he injured his back picking up a keg of beer on November 13, 1975. The fact that the injury occurred in the course and scope of the employment was never questioned.

Plaintiff reported the injury to a superior who arranged to have plaintiff transported to a clinic. Plaintiff was not told to see any particular doctor and his employer had not designated three doctors in accord with the statute, T.C.A. § 50-1004. The manager of Central Distributing Company, the employer, testified that the choice of a doctor was left to plaintiff, and that “the company does not have a company doctor.”

In Fields v. Lowe Furniture Corp., 220 Tenn. 212, 415 S.W.2d 340 (1967), this Court held that where employee was under treatment by a doctor selected by the employer, the statute of limitations was tolled and began to run from the date of the last treatment by the company doctor without regard to whether or not the doctor’s bill had been paid.

This case falls squarely within that rule; if the doctor selected by plaintiff, under the factual circumstances here, became the company doctor, to the extent that the employer was obligated to pay for his services under the workmen’s compensation law.

In Employers Insurance of Wausau v. Carter, 522 S.W.2d 174 (Tenn.1975), we held that referring the employee to a single physician did not comply with the statute and justified employee’s selection of a physician of her own choosing when she became dissatisfied with the single company designated doctor. See Forest Products, Div. of Ludlow Corp. v. Collins, 534 S.W.2d 306 (Tenn.1976). In Smith v. Norris, 218 Tenn. 329, 403 S.W.2d 307 (1966), this Court held that where employee notified employer that he was going to the hospital and was being treated by a doctor of his own selection and employer neither objected nor tendered its own choice of doctors, the employer was liable for employee’s medical expenses.

In the foregoing and many other cases this Court has construed various factual situations as implicitly authorizing the employee to select his own physician, and held the employer liable for the resulting medical treatment. Here, the employer expressly acknowledged that it had no company doctor and that it expressly authorized plaintiff to select his own physician. The company and its insurer are therefore liable for the medical treatment provided and recommended by the doctor selected by plaintiff to the same extent as if the company had.selected him.

We have also held in many cases that where, as here, there is material evidence of work disability, in addition to a doctor’s finding of permanent anatomical disability, this Court is without authority to change or alter the assessment of work disability determined by the trial judge.

Affirmed and remanded for enforcement of decree. Costs are adjudged against defendant.

HENRY, C. J., COOPER and HARBI-SON, JJ., and QUICK, Special Justice, concur.


author: BROCK, Justice.

text:
    STATE of Tennessee, Petitioner, v. Brenda Gale COLLIER, Respondent.
    Supreme Court of Tennessee.
    May 22, 1978.

      Linda Ross Butts, Asst. Atty. Gen., Nashville, for petitioner; Brooks McLemore, Jr., Atty. Gen., Nashville, of counsel.
    C. Prank Davis, Morristown, for respondent.
   OPINION

BROCK, Justice.

In the trial court the defendant Collier was convicted upon each of six counts charging her with unlawful possession of controlled substances with the intent to sell, five of these substances, viz., methaqualone, amobarbital, codeine, hydromorphone and amphetamine, being listed in Schedule II of the Drug Control Act and the sixth, marijuana, being listed under Schedule VI of the Drug Control Act. Punishment for the marijuana count was fixed at 11 months and 29 days imprisonment and a $1,000.00 fine; punishment for each of the five counts for possession of Schedule II drugs was set at four to nine years imprisonment and a $10,000.00 fine. All sentences were ordered to run concurrently.

Upon appeal to the Court of Criminal Appeals that court affirmed the conviction for possession of marijuana, the Schedule VI substance, and affirmed the conviction for possession of methaqualone, one of the Schedule II substances, but reversed the conviction under each of the other four counts charging Schedule II substances. It was the theory of that court that “multiple convictions under the same schedule may not” stand. We granted the State’s petition for certiorari to consider this issue.

Under the authority of a search warrant, the police entered the home of the defendant and her husband on May 15, 1976, and in the bedroom found a bottle containing 26 white pills, a bottle containing 50 orange and blue pills, a bottle containing 19 gray pills and a bag of plant material. In the defendant’s purse were found various bottles containing 100 yellow pills, 35 black capsules, 60 white pills, and 2 capsules marked “AFD 40.” A toxicology report identified the substances found in the defendant’s home and purse to be the Schedule II and VI drugs previously mentioned.

In State v. Campbell, Tenn., 549 S.W.2d 952 (1977), this Court analyzed in considerable detail the Drug Control Act, T.C.A., § 52-1408 et seq., and, applying the principles enunciated in State v. Black, Tenn., 524 S.W.2d 913 (1975); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), held that the “sale of two or more controlled substances, classified separately in the schedules of the Act, should constitute separate and distinct offenses.” The instant case presents the further question whether the possession with intent to sell of two or more controlled substances classified within the same schedule of the Act constitutes separate and distinct offenses. We hold, upon the same authorities and based upon the same reasoning set out in the Campbell decision, that the answer to the question must be in the affirmative.

T.C.A., § 52-1432, defines .the criminal offense as follows:

“(a) Except as authorized by §§ 52-1408 —52-1438, it is unlawful for any person to . possess with intent to . sell, a controlled substance.” (Emphasis added.)

T.C.A., § 52-1409, defines “controlled substance” as follows:

“(d) ‘Controlled substance’ means a drug, substance, or immediate precursor in schedules I through VI of §§ 52-1410— 52-1422 inclusive.” (Emphasis added.)

In our opinion, the foregoing definitions, considered in the light of the overall purpose and scheme of the Act to stamp out the traffic in dangerous drugs, indicates the legislative intent to create a separate offense for the possession of each of the controlled substances set out in Schedules I through VI of the Act. See Gore v. United States, supra.

This construction is consistent with the Blockburger rules for determining the identity of offenses, which we adopted in the Black and Campbell decisions, supra, which is as follows:

“Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

As we noted in the Campbell opinion, the Drug Control Act established a classification of controlled substances into different “schedules” based upon the relative potential of each substance for abuse, the degree of physical or psychological dependence its use might engender and its acceptability for medical use in treatment. T.C.A., §§ 52-1412, 52-1414, 52-1416, 52-1418 and 52-1420. Drugs within a single schedule are considered to be approximately equal in dangerousness but, as a group, they are considered to be more dangerous than the drugs listed in some of the other schedules and less dangerous than the drugs listed in still different schedules. Thus, penalties reflecting these distinctive degrees of danger vary from schedule to schedule within the Act. Nevertheless, each drug within a given schedule was placed there because it, individually, is dangerous and warranted control. For instance, drugs are required to be placed within Schedule II of the Act if the Commissioners of .Mental Health and Public Health find that the substance has “high potential for abuse,” has “currently accepted medical use in treatment in the . United States, or currently accepted medical use with severe restrictions,” and that “abuse of the substance may lead to severe psychic or physical dependence.” T.C.A., § 52-1414.

In order to be placed within a schedule, the Act requires that each individual drug or substance be considered in light of at least eight criteria. T.C.A., § 52-1410. In our opinion, each drug in a given schedule, in effect, comprises a separate subsection in the statutory scheme, e. g., in this case, the defendant violated T.C.A., § 52-1415(a)(1)(viii); § 52-1415(a)(1)(xi); § 52-1415(d); § 52-1415(g); and § 52-1415(h).

The holding of the Court of Criminal Appeals in this case would permit a defendant found to be in possession of a variety of the severely dangerous Schedule I drugs, LSD, heroin, and mescaline, for example, to receive a less severe sentence than a defendant found to be in possession of, for example, one Schedule I drug and any combination of drugs from other schedules, since the latter would require separate convictions under State v. Campbell, supra, while the former would not. In our opinion, the legislature did not intend that such a result should be possible.

We note that the conclusion. which we have reached has support in other jurisdictions. In Missouri, it was held in State v. Gordon, Mo.App., 536 S.W.2d 811 (1976), that the possession of drugs listed in different schedules of the drug control statute amounted to separate offenses and presented no double jeopardy problem, the same result reached by this Court in State v. Campbell, supra. The Missouri Court of Appeals was then faced, as is this Court in the instant case, with a plea for extension of that rule to permit separate convictions for offenses involving drugs listed within a single schedule of the statute. In State v. Williams, Mo.App., 542 S.W.2d 3 (1976), the court held that separate convictions could stand for simultaneous possession of heroin and marijuana, both Schedule I substances under the Missouri Act. The court noted that its statute made it unlawful for “any person ... to ... possess . . any controlled or counterfeit substance . . . The court said:

“The use of the word ‘any’ indicates that each separate substance possessed is an unlawful act. If the legislature had intended that the possession of several Schedule I substances would only constitute a single offense, it would have used words such as ‘one or more substances’ to evidence that intent.” 542 S.W.2d at 5.

The same result was reached in State v. Adams, Del., 364 A.2d 1237 (1976) and Melby v. State, 70 Wis.2d 368, 234 N.W.2d 634 (1975). In the Adams case the defendant was convicted upon four counts involving four separate drugs. Two of the drugs, methamphetaminé and methaqualone, were listed in Schedule II of the Delaware “Uniform Controlled Substances Act,” Title XVI, Section 4701 et seq. The court concluded that:

“ . . . the language of the statute shows that the legislature intended to apply the statutory prohibitions to individual substances, thereby creating a separate crime with respect to each forbidden substance.
******
“Here, each count charges possession of a separate controlled substance. Proof of the identity of the item possessed is an element of the offense as contemplated by [statute]. A prima facie case is made when some credible evidence tending to prove the existence of each element of the offense has been established. (Citation omitted.) It is generally accepted that in charging a drug violation, the indictment must specify the drug involved. . . . Where possession of separate drugs is charged, while the evidence relating to possession may be the same for each charge, the evidence describing the substance and establishing its drug identity . . would undoubtedly differ with respect to each drug charged. Hence, the totality of evidence required to prove one count would not establish all of the elements required with respect to the other counts.” 364 A.2d at 1240.

In Melby v. State, supra, the police seized several bottles of three different kinds of tablets and the defendant was charged and convicted separately on three counts. One of the counts involved possession of a substance under the “narcotic drug” section of the statute; the other two counts involved two drugs both of which were under the “dangerous drug” section of the statute. In upholding all three convictions, the court relied upon the same evidence test, saying:

“So, too, in the instant case, each substance is different and the illegality of each must be determined independently, without regard to the others. The two drugs involved are listed as separate prohibited substances under the definition of dangerous drugs. Had one type been analyzed and found to be of a lawful variety, that would not have made possession of the other lawful. Proof was necessary that each drug was of a type prohibited by the statute. The three different prohibited substances gives rise to three separate criminal charges, and defendant was not charged with the same crime three times.” 234 N.W.2d at 641.

See also People v. Innes, 16 Cal.App.3d 175, 93 Cal.Rptr. 829 (1971) in which the court had before it two convictions for the sale of two drugs, LSD and mescaline, both of which were prohibited as restricted dangerous drugs under the same section of the California Health and Safety Code, Section 11912. The court upheld both convictions.

For the reasons stated, we reverse the judgment of the Court of Criminal Appeals to the extent that it reversed the judgment of the trial court. The judgment of the trial court, upon each of the six counts of the indictment, is affirmed and this cause is remanded to that court for such further proceedings as may be required. Costs are taxed against the respondent.

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


text:
    Romaness BINGHAM, Appellant, v. DYERSBURG FABRICS COMPANY, INC. and Liberty Mutual Insurance Company, Appelles.
    Supreme Court of Tennessee.
    June 12, 1978.
    Joseph M. Boyd, Jr., Boyd & Honey, P.C., Dyersburg, T. Robert Hill, Hill & Sanders, Jackson, for appellant.
    William B. Aeree, Jr., Elam, Glasgow, Tanner & Aeree, Union City, for appellees.
   OPINION

FONES, Justice.

This is a workmen’s compensation case in which the employee appeals from the judgment of the trial court awarding him permanent partial disability benefits of 25% to the body as a whole for a lumbo-sacral strain. Employee contends that he is totally disabled.

Claimant was employed as a bobbin stripper for Dyersburg Fabrics. The only evidence that employee sustained an on-the-job injury was the testimony of employee himself; he testified that he felt a pain in his back while pushing heavy boxes. Employee went to a chiropractor and a number of doctors for his pain, but they did not help him, and he testified that he is in constant pain from the injury.

Employee collected twenty-six weeks of disability under an insurance policy carried by the employer for disabilities which were not work-related. Employee testified that he had told his foreman, plant manager, plant nurse, and insurance claims handler that his injury was job-related; all four denied having been told this.

Employee has a fourth grade education, and his work history consists entirely of manual labor. Employee testified that he has been unable to find a job that he can perform because of the pain in his back. His first two assignments of error allege in essence that there is no material evidence to support any conclusion except that employee is totally and permanently disabled.

The record shows that employee has simply not carried his burden of showing that he is totally disabled. See Mazanec v. Aetna Ins. Co., 491 S.W.2d 616 (Tenn.1973).

Although employee consulted a number of doctors, the testimony of only two was admitted at trial, entirely through deposition; Dr. Marcus Stewart rated employee’s permanent anatomical disability at 5% of the body as a whole, and Dr. Robert J. Barnett at 20%. Both physicians, orthopedic surgeons, testified that they were unable to find objective medical proof of employee’s disability. Thus the proof of disability was grounded entirely on employee’s subjective complaints.

Doctor Stewart’s testimony indicated that employee’s present pain was not a proper criterion for evaluation of his permanent occupational impairment; he testified that employee’s pain was caused by muscle strain and weakness of the lower back, and that this condition would improve with proper exercise. The trial court, who hears the witnesses, is the best judge of credibility, and we will not disturb his findings on questions of fact if there is material evidence to support them. E. g., Davis v. Gulf Ins. Group, 546 S.W.2d 583 (Tenn.1977).

In addition, there is material evidence in the record which affirmatively refutes employee’s contention that he is permanently unable to work. Doctor Stewart testified as follows:

Q. Isn’t it true that if a person’s job requires a lot of bending or stooping or lifting, that a back injury would be more serious to him than it would be to someone whose job does not require all that?
A. Yes, sir, except five per cent is not very much and if you’ve got ninety-five per cent function, I think you could do most any job.

Employee alleges that the chancellor erred in refusing to consider.in evidence a form letter purportedly received by him from the Social Security Administration reciting that employee had been found by an administrative law judge to be “disabled” under 42 U.S.C. §§ 416(i)(1) and 423(d) from July 12, 1973, (the date of the accident) through April 15, 1975, (the date of the decision of the administrative law judge). Employee says that no contention is made that the finding of the Social Security Administration is conclusive, but insists that “in other courts where this issue has been squarely faced,” that federal agency’s determination has been admitted in evidence. In support of that statement, counsel cites only two cases, both decided by the same judge of the intermediate appellant court of Arizona, Womack v. Industrial Comm'n, 3 Ariz.App. 74, 412 P.2d 71 (1966), and Cudahy Packing Co. v. Industrial Comm’n., 7 Ariz.App. 335, 439 P.2d 307 (1968).

No ruling upon an evidentiary question by the courts of Arizona in a workmen’s compensation case has any precedential value whatsoever in Tennessee for the reason that by statute that state’s industrial commission is not bound by common-law or statutory rules of evidence in a workmen’s compensation proceeding. Ariz.Rev.Stat. § 23-941 (1971). Further, in Arizona, a claimant can obtain an award of permanent disability without medical proof and upon his own statement of subjective symptoms, where there is no evidence that casts doubt on claimant’s credibility. Matthews v. Industrial Comm’n., 20 Ariz.App. 350, 512 P.2d 1237 (1973). Also, hearsay evidence alone will sustain an Arizona workmen’s compensation award if deemed “probativeiy sufficient” by the commission. Reynolds Metal Co. v. Industrial Comm’n., 98 Ariz. 97, 402 P.2d 414 (1965).

It is also clear that the claimant in Womack v. Industrial Comm’n., supra, did not offer the finding of the Social Security Administration as evidence in support of his claim of total disability. The industrial commission’s referee issued a subpoena duc-es tecum for the finding of the Social Security Administration for the purpose of determining the amount of the award being received by the claimant. The Court of Appeals, in commenting on the referee’s motives in insisting upon the production of that evidence, held that the only relevancy the Social Security Administration’s determination had was whether the award of $254.20, considered in the light of claimant’s family obligations, etc., provided motivation for the claimant to willfully avoid working. It is true that the Court of Appeals, later on in the opinion, as somewhat of an afterthought, made the statement that the Social Security Administration’s award, being the maximum allowable, indicated that that agency had determined claimant to be totally disabled and that it corroborated' claimant’s contention that he was unable to work.

Awards or findings of the Social Security Administration are not admissible in the courts of Tennessee in a workmen’s compensation case for the purpose of showing the existence or the extent of an employee’s permanent disability. Among the many reasons are: 1) employer is not a party to proceedings before the social security administration, and has no opportunity to cross-examine or to rebut employee’s proof; 2) the criterion for determining the existence or extent of permanent disability, temporary or total, under Tennessee workmen’s compensation statutes and case law differs widely from the definitions of disability applicable for social security purposes. See 42 U.S.C. § 416(i)(l) and 42 U.S.C. § 423(d).

The decree of the Chancery Court of Dyer County is affirmed. Costs are adjudged against employee Bingham.

HENRY, C. J., COOPER and HARBI-SON, JJ., and QUICK, Special Justice, concur.


author: DROWOTA, Judge.

text:
    DIVERSIFIED EQUITIES, INC., Judy McCurley and Ron Sink, Plaintiffs-Appellants, v. Gary WARREN and Juanita Warren, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 3, 1976.
    Certiorari Denied by Supreme Court May 2, 1977.

      George E. Barrett, Nashville, for plaintiffs-appellants.
    H. McKinley Marlow, Jr., Jack Green, Nashville, for defendants-appellees.
   DROWOTA, Judge.

OPINION

This is a fraudulent practices securities case arising out of the sale of three businesses. Plaintiffs-Appellants sought rescission or reformation of a contract in which they purchased two health spa corporations and a sole proprietorship from defendants. Plaintiffs contended that defendants made certain fraudulent representations to them concerning the value of the accounts receivable held by the two corporations which entitle them to a cancellation or reduction of a promissory note given to defendants. Plaintiffs also sought to be paid the cash value of an insurance policy on the life of one of the defendants, Gary Warren, pursuant to their agreement. Defendants filed an answer and counterclaim, denying that any misrepresentations were made and asking for judgment in the full amount of the note on the ground that plaintiffs have failed to make the first monthly installment on the note, which has a clause accelerating payment upon default.

Defendants demanded a jury trial and a six-member jury was empaneled. The following factual questions were presented to the jury:

1. Did defendants make any fraudulent misrepresentations to the plaintiffs in the financial statements furnished plaintiffs at the time of the closing of the transaction? (Yes or No.)
2. Did plaintiffs rely upon the financial statements furnished by defendants in the purchase of the corporation? (Yes or No.)
3. In the written agreement between the plaintiffs and defendants, it was agreed as follows: “Sell and transfer the existing life insurance policy on Mr. Warren to Mr. Warren.” Did this agreement have reference to the New York Life Insurance policies? (Yes or No.)

The jury’s unanimous answers to the questions were: Yes to No. 1, No to No. 2, and Yes to No. 3. In accordance with these answers, the Chancellor found that plaintiffs were entitled to the cash value of the New York Life Insurance policies ($7,200.00) and that defendants were entitled to $125,000.00, the principal amount of the promissory note, plus $2,500.00 in interest and $7,500.00 attorneys’ fees. Plaintiffs’ motion for a new trial was denied and this appeal ensued. The Chancellor’s decision that plaintiffs were entitled to the cash value of the life insurance policies was not appealed.

Plaintiffs are Diversified Equities, Inc., and its principal shareholders, Judy McCur-ley and Ron Sink. On October 8, 1974, McCurley, through a casual conversation with defendant Gary Warren, learned that defendants were attempting to sell their three businesses. These businesses were the World Wide Spas, Inc., which operated a health spa in the One Hundred Oaks Shopping Center; Charlotte Roman Health Spa, Inc., which operated a health spa in the Charlotte Square Shopping Center; and Future Investments Company, an individual proprietorship which operated as a collection and sales agent for the first two corporations.

The parties met on October 9,10, and 11, 1974, to discuss a possible sale of these businesses. On October 11, they agreed upon the sale and signed the contract conveying the businesses to plaintiffs. The parties agreed upon a purchase price of $200,000.00. Of this total, $75,000.00 was to be a down payment payable in three installments, the first of which was due on January 2,1975. The $125,000.00 balance of the purchase price was represented by a promissory note, executed by Judy McCurley in her official capacity as president of Maryland Farms Spa, Inc. (the former ñame of plaintiff corporation), and guaranteed by plaintiffs McCurley and Sink in their individual capacities. The note, which bore interest at four per cent, was to be paid in six monthly installments commencing on February 1, 1975.

Plaintiffs paid the entire $75,000.00 down payment. Instead of paying the initial note installment due February 1, 1975, however, plaintiffs, seeking a rescission or reformation of the contract, filed their complaint in this case on February 19, 1975. Plaintiffs contended that in purchasing these businesses they had relied on certain financial statements of the two corporations. These statements, dated June 30,1974, listed $288,-000.00 as accounts receivable. Plaintiffs, however, were able to find less than $100,-000.00 of accounts receivable, and alleged that defendants had perpetrated a fraud on them. Defendants, on the other hand, stated that no misrepresentations had been made to plaintiffs and that plaintiffs had not relied upon the financial statements in question.

The Chancellor, in accordance with the findings of the jury, held that plaintiffs were not entitled to rescission or reformation since they did not rely on the misrepresentations in the financial statements. The Chancellor further found that defendants were entitled to the full amount of the promissory note plus interest and attorneys’ fees.

All three plaintiffs appealed upon a pauper’s oath under T.C.A. § 20-1629. Defendants-appellees have filed a motion to dismiss the appeal of plaintiff corporation, arguing that a corporation is not entitled to appeal upon a pauper’s oath under T.C.A. § 20-1629.

Section 20-1629 provides that, except in certain enumerated cases, any resident of this state may commence an action without giving security if that resident swears to the pauper’s oath contained in the statute. We have found no reported Tennessee cases which have allowed a corporation to appeal on the pauper’s oath.

The pauper’s oath required by T.C.A. § 20-1629 uses the word “I” throughout. We interpret this use of “I” as restricting the pauper’s oath to natural persons. We hold that since a corporation is an artificial entity it is not entitled to appeal upon a pauper’s oath under T.C.A. § 20-1629.

The appeal of Diversified Equities, Inc., will be dismissed without prejudice of plaintiff corporation to apply for writ of error upon making a proper bond.

I.

In plaintiffs’ first assignment of error, . they contend that the verdict is contrary to the law because common law reliance is not an element of a fraudulent practice under T.C.A. § 48-1644. We have found no reported cases construing § 48-1644.

The language of T.C.A. § 48-1644 is similar to the language of Rule 10b-5, promulgated by the S.E.C. under § 10(b) of the Securities and Exchange Act of 1934. We have reviewed the federal case law interpreting Rule 10b-5 and conclude that when a material misrepresentation is made, reliance upon that misrepresentation must be proven to recover under Rule 10b-5. Reliance is established when one proves that the misrepresentation is a substantial factor in determining the plaintiff’s course of conduct. See List v. Fashion Park, Inc., 340 F.2d 457 (2nd Cir. 1965), cert. denied sub nom. List v. Lerner, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965); Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 378 F.Supp. 112 (S.D.N.Y.1974); A. Jacobs, The Impact of Rule 10b-5 § 64.01 (Clark Boardman’s Securities Law Service 1974).

The substantial factor test adopted by the federal courts is the same reliance test used in the common law misrepresentation action. See W. Prosser, Handbook of the Law of Torts § 108 (4th ed. 1971).

We find federal case law interpreting Rule 10b-5 to be persuasive and thus hold that reliance is an element of a fraudulent practice under T.C.A. § 48-1644. Plaintiffs’ first assignment of error is overruled.

II.

Plaintiffs argue in their second assignment of error that the jury’s findings and the Chancellor’s decision were against the weight of the evidence. Plaintiffs contend that the preponderance of the evidence established that they relied upon defendants’ misrepresentations.

There is a great deal of conflicting testimony on the issue of whether plaintiffs relied on the misrepresentations in the June 30,1974, financial statements. The decision of the Chancellor as to the credibility of witnesses is final and not subject to review in the appellate court. Early v. Street, 192 Tenn. 463, 241 S.W.2d 531 (1951); Weeks v. Summerlin, 62 Tenn.App. 650, 466 S.W.2d 894 (1970).

Upon a review of the evidence, we find that a preponderance of the evidence supports the jury’s finding and the Chancellor’s decision that plaintiffs did not rely upon the misrepresentations in the June 30, 1974, financial statements.

Plaintiff McCurley was familiar with the defendants’ businesses, having been employed by them and having worked in other spas for ten years. Plaintiff Sink is a certified public accountant. There was testimony that plaintiffs were informed that the June 30,1974, balance sheets were prepared specifically for Associates Capital and that the corporations were on the cash basis and generally did not list accounts receivable on their balance sheet. There was evidence that defendants turned over all the records of the businesses to plaintiffs and delayed cashing the check for the initial payment until plaintiffs had an opportunity to examine these records. We therefore feel constrained to overrule plaintiffs’ second assignment of error.

III.

In their third assignment, plaintiffs argue that the Chancellor erred in denying their'motion, made at the conclusion of all the evidence and pursuant to Rule 15.02 of the Tennessee Rules of Civil Procedure, to amend the pleadings to conform to the evidence presented. By this amendment, counsel for plaintiffs sought to add a cause of action for breach of contract. It was alleged that defendants breached the following provision in the contract: “You have represented and I have accepted that except as set forth on balance sheets of [Charlotte Roman Spa, Inc., World Wide Spas, Inc., Future Investments Company] attached to this letter, there are no other obligations which would materially and adversely affect the operation of such companies.” Specifically, plaintiffs argue that this provision of the contract was breached in that the financial statements did not reflect the collection fee liability owed to Nashville. Adjustment Bureau on the accounts receivable placed with them.

Rule 15.02 of the Tennessee Rules of Civil Procedure provides:

When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; .

The Chancellor- found that the breach of contract issue was not tried by the express or implied consent of the parties and thus denied plaintiffs’ motion to amend their pleadings. Wide discretion is vested in the trial judge in granting or refusing amendments during the course of the trial and such discretion will not be disturbed unless clearly abused. Womble v. Walker, 216 Tenn. 27, 390 S.W.2d 208 (1965); Derryberry v. Ledford, 506 S.W.2d 152 (Tenn.App.1973).

We find that the Chancellor did not abuse his discretion in denying plaintiffs’ motion to amend their pleadings. Upon a review of the evidence it is unclear whether the issue of breach of contract was tried by the express or implied consent of the parties. The undisclosed collection fee of the Nashville Adjustment Bureau was mentioned a few times at the trial, but this evidence also related to the issue of whether defendants misrepresented the value of the accounts receivable.

The third assignment of error is overruled.

IV.

Plaintiffs contend in their fourth assignment of error that the Chancellor erred in denying their motion for a new trial on the basis of newly discovered evidence. The newly discovered evidence is that the three businesses purchased by plaintiffs are undergoing audit by the Internal Revenue Service for prior taxable years. This audit could possibly result in additional tax liabilities. In their motion for a new trial, plaintiffs contend that defendants’ denial of any outstanding tax liabilities for these businesses was a fraudulent misrepresentation and therefore voided the contract of sale.

A new trial will be granted on account of newly discovered evidence only when it is evident that an injustice has been done and a new trial will change the result. Bean v. Commercial Security, 25 Tenn.App. 254, 156 S.W.2d 338 (1941); Travis v. Bacherig, 7 Tenn.App. 638 (1928). The Chancellor is vested with a very broad discretion in considering the matter of granting a new trial on the grounds of newly discovered evidence. Brown v. University Nursing Home, 496 S.W.2d 503 (Tenn.App.1972).

We find that the Chancellor’s denial of the motion for a new trial was proper. The newly discovered evidence of an Internal Revenue Service audit and the possibility of additional tax liability would not change the jury’s findings and the Chancellor’s decision on the fraudulent misrepresentation issue. There is no evidence that defendants knew or had reason to know at the time of the sale of these businesses to plaintiffs that the businesses might be subject to additional tax liabilities. Therefore, defendants did not make a fraudulent misrepresentation by stating that there were no outstanding tax liabilities for these businesses.

Plaintiffs argue in their brief that the possibility of additional tax liability constitutes a breach of the following provision in the contract of sale: “You have represented and I have accepted that except as set forth on balance sheets of [Charlotte Roman Spa, Inc., World Wide Spas, Inc., Future Investments Company] attached to this letter, there are no other obligations which would materially and adversely affect the operation of such companies.”

We have already decided that the Chancellor properly denied plaintiffs’ motion to amend their pleadings to allege that the failure to reflect the collection fee liability owed to Nashville Adjustment Bureau on the balance sheets was a breach of the above provision of the contract. It should be remembered that this breach of contract issue was not tried in Chancery Court.

Plaintiffs’ affidavits in support of their motion for a new trial indicate that there is a possibility of additional tax liabilities for the businesses sold to plaintiffs. The mere possibility of a tax liability is not an “obligation which would materially and adversely affect the operation of such companies.” The fact that this newly discovered evidence indicates that there is a possibility of additional tax liability does not establish that an “injustice has been done and a new trial will change the result.”

More certain evidence that there is a tax liability owed by these businesses for prior taxable years might establish that relief from the jury’s findings and Chancellor’s decision would be proper in the lower court under Rule 60. This type of evidence is not presented by plaintiffs on this appeal.

We find that the Chancellor properly denied plaintiffs’ motion for a new trial based on newly discovered evidence. Therefore, the fourth assignment of error is overruled.

Having considered and overruled all of plaintiffs’ assignments of error, we affirm the decision of the Chancellor and tax the costs of this cause to plaintiffs. We remand this cause to the Chancery Court for the purpose of conferring upon that court jurisdiction to entertain a Rule 60 motion, in the event plaintiffs seek such relief when a tax liability is clearly established. Affirmed and remanded.

SHRIVER, P. J., and TODD, J., concur.

      . T.C.A. § 48-1644 provides:'
      It shall be a fraudulent practice and it shall be unlawful:
      (A) For any person knowingly to subscribe to, or make or cause to be made, any material false statement or representation in any application, financial statement or other document or statement required to be filed under any provision of this chapter; or
      (B) For any person, in connection with any transaction or transactions in this state which involve any offer to sell or buy securities, or any sale or purchase of securities, including securities exempted under the provisions of § 48-1619 and including any transactions exempted under the provisions of § 48-1632, either directly or indirectly, (i) to employ any device, scheme or artifice to defraud or (ii) to engage in any act, practice, transaction or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller.


author: MATHERNE, Presiding Judge.

text:
    Lester M. FRESHOUR, Plaintiff-Appellant, v. G. V. Freshour AUMACK, Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Nov. 18, 1977.
    Certiorari Denied by Supreme Court April 10, 1978.
    Petition to Rehear Denied by Supreme Court June 12, 1978.

      Denty Cheatham, Cheatham & Palermo, Nashville, for plaintiff-appellant.
    Miehael R. Lipscomb, Lipscomb & Hardin, Henderson, for defendant-appellee.
   MATHERNE, Presiding Judge.

The plaintiff, a ward of the Veterans Administration, sued to establish title in himself to a 21.97 acres of land.

The chancellor held that the plaintiff and his former wife, the defendant, owned the land as equal tenants in common and impressed a lien upon the plaintiff’s one-half undivided interest in favor of a judgment for $8,200, which he awarded the defendant for past due and unpaid child-support payments.

On appeal the plaintiff insists that: (1) the fee is in the plaintiff, because the land was purchased with his funds which were sent to the wife from the Veterans Administration while he was mentally incompetent; (2) he should be allowed credit on the child-support arrearage for the amounts paid for child support by the Veterans Administration; and (3) the court should have modified the amount of child support because of changed circumstances.

I.

At the trial the only testimony presented was that of the plaintiff. The defendant was present but did not testify. The only other evidence consisted of admissions, stipulations and documents made exhibits by the plaintiff. Basically, the facts are not in dispute.

In 1944 the plaintiff was discharged from the Army because of his mental condition, and he began drawing disability benefits from the Veterans Administration. The plaintiff and the defendant were married in 1945.

The chancellor found that by order of the County Court for Hardin County, Tennessee, entered on February 23,1948, the plaintiff was adjudged incompetent and was admitted to the Veterans Administration Hospital at Murfreesboro, Tennessee. There is no appeal from that finding of the chancellor.

After the finding of incompetency, the Veterans Administration paid to the defendant wife the amounts owing to the plaintiff. The plaintiff was released from the hospital and returned to his family. In 1948 the plaintiff purchased the property in question from his brother. The deed was made to the plaintiff and defendant as tenants by the entirety, and the property was paid for with funds received by the wife from the Veterans Administration. The purchase of the property was handled by the plaintiff with the advise of a third party, Mr. Watson, who suggested to the plaintiff that the deed be made to the plaintiff and his wife.

In September 1953 James Barlow was appointed legal guardian over the plaintiff. Thereafter, the plaintiff’s disability checks were sent to the guardian. In 1954 the plaintiff signed a quitclaim deed conveying his interest in the 21.97 acres to his wife. The plaintiff said that the purpose of this quitclaim deed was to effect a sale to a third party. The transaction seemed to have failed due to the lack of cooperation by the guardian.

The plaintiff and the defendant moved from the State of Tennessee in 1953. The plaintiff’s father and brother occupied the 21.97 acres under an agreement with the plaintiff to look after it until he returned to occupy it. The defendant wife never objected to the plaintiff’s handling of the property and never asserted that she owned it. The plaintiff’s guardian paid the taxes on the property out of the plaintiff’s funds until the plaintiff was restored to competency, and since that time the plaintiff has paid the taxes.

In 1962, while the parties were living in Michigan, the plaintiff left the defendant. The defendant and the children of the parties remained in Michigan. The guardian, over the years, paid the plaintiff only a small amount of the disability payments and paid the remainder to the defendant.

The plaintiff has been in and out of hospitals and has moved from state to state. In 1967, while residing in the state of Texas, the plaintiff obtained an order of restoration of sanity from the County Court of ’ Harris County, Texas. The plaintiff then sued for a divorce in the Court of Domestic Relations of Harris County, Texas. The decree of divorce, dated July 8, 1968, found that process was duly served on the defendant and that she had answered but failed to appear at the hearing personally or by her attorney of record. The divorce decree vested custody of the parties’ five minor children in the defendant, awarded her the household furniture and a 1960 Chevrolet automobile, and ordered the plaintiff to pay to the defendant $100 per month child support “until the youngest child reaches the age of 18 years.” The youngest child was recited to be a girl, born in the year 1960. No mention was made in the divorce decree of the 21.97 acres of land.

On October 3,1968, an order was entered in the County Court of Hardin County, Tennessee, approving the final accounting of the guardian and terminated the guardianship. The Veterans Administration has since made disability payments to the plaintiff.

The plaintiff made the child support payments until July 1969. At that time, at the request of the wife, the Veterans Administration began paying to her, for the support of the children, a portion of the plaintiff’s disability benefits. These payments were as follows: $69.00 per month from July 1, 1969 until July 1, 1970; $76.00 per month thereafter until November 16, 1970; $62.00 per month thereafter until August 22,1972; $48.00 per month thereafter until April 11, 1974; $32.00 per month thereafter until December 18, 1975; and $19.00 per month thereafter. The plaintiff figures the total amount to be $4,182.15, which figure is not disputed.

The plaintiff returned to Tennessee after the divorce. He has sold timber off the 21.97 acres, bulldozed a part of it and removed a house from the premises. At no time has the defendant objected to these acts, nor has she at any time asserted ownership of the property. The plaintiff now manages the property as his own, visits it on week-ends and pays the taxes.

The defendant, who since the separation has resided in the state of Michigan, has married again and is now Mrs. Aumack.

II.

The plaintiff insists that his wife received his disability payments in trust and that she, therefore, holds the real property purchased with those funds in trust for the benefit of the plaintiff. The plaintiff relies heavily upon the case of Kirk v. Sumner County Bank & Trust Company (1941) 25 Tenn.App. 150, 153 S.W.2d 139. In that lawsuit J. C. Johnson, age 74 years, was adjudged insane under the provisions of Chapter 17 of the Acts of 1919. He was committed to Central State Hospital, and his wife was duly appointed and qualified as his guardian. About five months after his commitment, J. C. Johnson was discharged by the hospital with the statement that he was “unimproved.” Two months later J. C. Johnson purchased a house and lot for the consideration of $1,300 and took title in the names of himself and his wife. Without approval by the court, Mrs. Johnson paid for the realty out of funds in her hands as guardian. Mrs. Johnson survived J. C. Johnson and sold the property for $1,000. After her death the heirs of J. C. Johnson filed suit claiming the proceeds from the sale of the real estate on the grounds that the purchase of the real estate with the funds of the ward created a resulting trust in the ward’s favor; that the fund retained its character as personalty and passed to them as the heirs at law of the ward. The Court sustained the position of the heirs at law of the ward. The Court held that the fact that the ward consented to the purchase did not make the transaction valid.

The material difference between Kirk and the case at bar is that here the wife was not the duly appointed and qualified guardian of the plaintiff at the time she used part of his disability payments to pay for the 21.97 acres of land. We also note that in neither case is there a charge of fraud, misrepresentation or overreaching by the party expending the funds of the ward.

During the period of time that the wife was receiving the plaintiff’s disability payments there was in effect paragraph (f) of § 3202, 38 U.S.C.A., which provided as follows:

(f) In the case of any incompetent veteran having no guardian, payment of compensation, pension, or retirement pay ■may be made in the discretion of the Administrator to the wife of such veteran for the use of the veteran and. his dependents.

Paragraph (f) was repealed by Public Law 93-295, Title III, § 301(d), May 31, 1974, 88 Stat. 184.

The wife received the plaintiff’s disability payments under the foregoing statute; she did not receive the payments as guardian of the plaintiff. The plaintiff testified that his purpose in buying the 21.97 acres was to have a home. That fact is not disputed. Can it reasonably be argued that payments on a home for the incompetent veteran and his dependents would not be for the “use of the veteran and his dependents”? A fair reading of § 3202, 38 U.S.C.A. establishes that the Administrator could have intervened and brought suit at any time when it appeared that the wife, in the opinion of the Administrator, was not properly execu- • ting or had not properly executed the duties of her trust. No such complaint appears in the record before this Court relating to the use of the money paid to the wife of the plaintiff.

We conclude that under the facts of this lawsuit the money was properly expended by the wife for the use and benefit of the veteran and his dependents. The purchase of a home in the name of the incompetent veteran and his wife was not a misuse of the benefits received by the wife for the veteran. Many reasons could be noted which would dictate that title to the home would best be in the name of husband and wife. The wife did not abuse her trust in this respect, and the 21.97 acres were owned by the parties as tenants by the entirety. As result of the divorce the parties now own the land as equal tenants in common. Youree v. Youree (1965) 217 Tenn. 53, 394 S.W.2d 869.

III.

After the appointment of a legal guardian over the plaintiff, the plaintiff signed a quitclaim deed conveying his interest in the 21.97 acres to his wife. We agree with the chancellor that this deed be set aside as null and void. A contract with an insane person by one having knowledge of his incapacity may be set aside as null and void. Pritchett v. Thomas Plater & Co. (1920) 144 Tenn. 406, 232 S.W. 961; Hinton v. Robinson (1962) 51 Tenn.App. 1, 364 S.W.2d 97.

IV.

We agree with the plaintiff that under the facts the amount for past due and unpaid child support should be credited with the payments made to the defendant by the Veterans Administration for the support of the children.

In Kipping v. Kipping (1948) 186 Tenn. 247, 209 S.W.2d 27, a divorce decree ordered the father to pay $5,000 as child support over a period of four years at the rate of $1,250 annually. Thereafter, the father joined the United States Army. During the term of his military service, the United States Government paid the former wife $1,761.57 under the Servicemen’s Dependence Allowance Act of 1942. Of that sum $384.50 was deducted from the father’s pay, and $1,377.27 was contributed by the Government. The Court held that the entire $1,761.57 should be credited on the judgment against the father for the support of his child.

In Wilson v. Gardner’s Estate (1936) 220 Wis. 493, 264 N.W. 643, a divorced wife of a deceased mentally incompetent veteran sued the veteran’s estate for unpaid child support payments totalling $2,451.26. The Court found that the wife had been paid child support payments from the Veterans Administration in the amount of $1,722.76 during the period that the arrearage accrued and credited that amount on the judgment of $2,451.26 awarded to the divorced wife.

It results that the judgment of $8,200 is reduced by $4,182.15 leaving $4,017.85. The payment of $100 per month is reduced to the extent of any amount paid by the Veterans Administration to the mother for child support. The judgment below, so modified, is affirmed.

All assignments of error are accordingly overruled. The judgment of the chancellor as herein modified is affirmed, and the cause is remanded to the Chancery Court of Hardin County, Tennessee, for the enforcement of the judgment. The cost in this Court is adjudged against the plaintiff-appellant for which execution may issue if necessary.

NEARN, J., and INMAN, Special Judge, concur.