text:
    Catherine HAWKINS, Administratrix of the Estate of Selma Mary Winfrey, Plaintiff-Appellant, v. Newell WHITTENBERG, Defendant-Respondent.
    No. 10655.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 17, 1979.

      John R. Courtney, Springfield, for plaintiff-appellant.
    E. C. Curtis, Farrington, Curtis, Knauer & Hart, Springfield, for defendant-respondent.
   FLANIGAN, Chief Judge.

Plaintiff, the administratrix of the estate of Mrs. Selma Winfrey, brought this wrongful death action against defendant Newell Whittenberg. The theory of the petition was that Mrs. Winfrey’s death was caused by the negligence of defendant in the operation of his automobile on August 22, 1974, at the intersection of Commercial and Van Burén in Lebanon, Missouri. The petition alleged that defendant’s automobile struck Mrs. Winfrey, a 77-year-old pedestrian, inflicting injuries which resulted in her death on January 19, 1975. Defendant admitted that the injuries sustained by Mrs. Winfrey were fatal. Mrs. Winfrey was survived by five adult children.

At the close of plaintiff’s evidence the trial court sustained defendant’s motion for directed verdict. Plaintiff appeals.

Plaintiff argues that the ruling of the trial court was erroneous in that plaintiff made a submissible case, both on the issue of defendant’s liability and on the issue of damages. Plaintiff claims that the evidence was sufficient to submit to the jury the issue of defendant’s negligence in failing to keep a careful lookout. Plaintiff also claims that the trial court erred in rejecting plaintiff’s offer of proof with respect to a habit of Mrs. Winfrey.

In seeking to uphold the ruling of the trial court, defendant argues that plaintiff failed to make a submissible case on the issue of defendant’s failure to keep a careful lookout and also argues that plaintiff’s evidence was insufficient to show that Mrs. Winfrey’s children, as the statutory beneficiaries, sustained any pecuniary loss as a result of her death.

In Boyle v. Colonial Life Ins. Co. of America, 525 S.W.2d 811 (Mo.App.1975), the western district of this court set forth the principles which govern review of the action of the trial court in sustaining a defense motion for a directed verdict offered at the close of plaintiff’s evidence. It stated, at 814, that such a ruling “is a drastic one,” and is proper only when “all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ.” The court also said, at 815, “the plaintiff is entitled to the most favorable view of all the evidence and must be given the benefit of all favorable inferences to be drawn therefrom.”

On the issue of liability plaintiff introduced the testimony of Joel Richards, Jerry Rhoads, and portions of the deposition of the defendant. Plaintiff also introduced three photographs of the scene. On the basis of that evidence the jury reasonably could have found the following facts.

Commercial Street runs east and west and Van Burén Street runs north and south. The junction of the two streets is a T intersection, the intersection being the southern terminus of Van Burén.

The accident occurred at 8:52 a. m. on August 22, 1974. The defendant was driving a Chrysler Imperial automobile. Prior to the impact the defendant was traveling east on Commercial with the intention of making a left turn onto Van Burén. As he traveled east on Commercial there was no westbound traffic on that street. As he commenced his turn the defendant’s speed was 20 miles per hour “at the very most.”

Plaintiff introduced the following portions of defendant’s deposition:

“Q. After you started into your left hand turn, you saw you had it clear, no westbound traffic on Commercial, did you then accelerate and continue on in a generally northwardly direction on Van Burén?
A. Very slow.
Q. Very slow, but you maintained the speed did you?
A. After I turned the corner.
Q. Did you maintain the speed or did you increase it or diminish?
A. No, I didn’t increase it.
Q. Did you maintain it?
A. Just about maintained it because just a short turn you turn right again.
Q. All right. Did you at any time see a lady by the name of Selma Mary Winfrey?
A. I did not see nobody.
Q. Did you feel your car come into contact with .
A. I did but it was — I can explain it this way. Have you ever run over a limb out on the side of the road or anything and you know how it sounds? Well, now, that is just how it sounded, just like I had run over a limb.
Q. Were you keeping a lookout for pedestrians or any animals or anything that might be in your approach?
A. I usually don’t look for cats and dogs.
Q. Were you generally looking to the front?
A. I always do.
Q. In the road, and you did not see her did you?
A. I did not see her.
Q. What caused you to apply your brakes? When you looked up in your reverse mirror?
A. When I looked up in the reverse mirror I was wondering why a limb was out there and I looked up to see what kind of a limb was out there and what I did, and that is how come me to look back in the mirror.
Q. Just so the record is absolutely clear, your testimony is that you never saw this woman prior to looking up in your rearview mirror and seeing her?
A. You mean there at the time?
Q. Yes.
A. I never seen her at all.
Q. Okay.
A. Until I looked up in my rearview mirror.
Q. You never saw her until you felt two bumps, you looked up in your rearview mirror and then you saw her?
A. That is right.”

Defendant also testified that Mrs. Winfrey was lying 20 or 30 feet north of the north curb line of Commercial. When he felt the two bumps his speed was about 15 miles per hour and his car was “still angling in the turn,” not yet straightened out on Van Burén.

Joel Richards, the policeman who investigated the accident, interviewed the defendant at the scene. The defendant told Richards that “when I made the corner I felt a rough spot, I felt like I had hit something. I must have hit Mrs. Winfrey because when I looked in the rearview mirror there was no one between me and her.”

There was a telephone pole at the northeast corner of the intersection and Mrs. Winfrey’s body was lying in Van Burén Street 34½ feet north of the pole. Richards testified that there was “a blood smear on the pavement and I believe Mrs. Winfrey was dragged approximately five feet as a result of the accident.” Her body was in the right or northbound lane of Van Burén which is a two-lane street.

Richards conducted an inspection of the defendant’s vehicle which included placing it on a lift at a service station so that he could check its underside. The inspection failed to disclose any blood, hair, “disturbance of dust on the car” or any other indication of what portion of the vehicle it was which figured in the impact with Mrs. Winfrey.

Jerry Rhoads was at his place of employment “right at the intersection.” He did not see the impact but did see Mrs. Winfrey lying in the street “about 15 feet from the sidewalk which runs east and west on the north side of Commercial.” The north edge of the sidewalk was approximately 9 feet north of the telephone pole. Rhoads did not see any “tree limbs or sticks or anything on Van Burén” and “Van Burén was in good condition.”

Negligence, consisting of a driver’s failure to keep a careful lookout, is not to be submitted to the jury unless there is substantial evidence from which the jury could find that the driver, in the exercise of the highest degree of care to keep a careful lookout, could have seen the other vehicle or person in time thereafter to have taken “effective precautionary action.” Heberer v. Duncan, 449 S.W.2d 561, 563[3] (Mo. banc 1970); Bunch v. McMillian, 568 S.W.2d 809, 811[3] (Mo.App.1978). To support the giving of a lookout instruction there must be evidence to support a finding that the driver, charged with failing to keep a careful lookout, could have avoided the collision by means which he possessed but failed to use. Lovelace v. Reed, 486 S.W.2d 417, 419 (Mo. 1972); Miller v. St. Louis Public Service Co., 389 S.W.2d 769, 772[3, 4] (Mo. 1965).

“Having the means and ability to avoid a collision means not only the mechanical appliances, such as steering apparatus with which to swerve, signalling equipment with which to warn, or braking appliances with which to slow down or stop, but also the existence of sufficient time and distance, considering the movements and speeds of the vehicles, to enable the party charged [with failure to keep a careful lookout] to take effective action in avoidance.” Zalle v. Underwood, 372 S.W.2d 98, 102[2] (Mo. 1963).

The mere happening of the accident, tragic as it was, does not establish negligence on the part of defendant. Harris v. Lane, 379 S.W.2d 635, 638 (Mo.App.1964).

To be actionable, negligence must be a proximate cause of injury and that general principle applies when the specific negligence involved is that of failure to keep a careful lookout. Shelton v. Bruner, 449 S.W.2d 673, 679-680 (Mo.App.1969). On plaintiff rested the burden of showing a causal connection between such negligence and decedent’s injuries although such connection may be shown by proof of facts and circumstances from which it may reasonably be inferred. If the evidence leaves the element of causal connection “in the nebulous twilight of speculation, conjecture and surmise,” plaintiff did not carry her burden. Shelton, supra, at 680.

It is true that a person driving an automobile along a city street “must take note not only of persons who are actually in the pathway of danger, but of those who are approaching and apparently about to go into danger, and to act on such appearances.” Trimble v. Sipes, 506 S.W.2d 353, 355[1] (Mo.1974). It was defendant’s duty to keep a lookout ahead and laterally. Williams v. Ricklemann, 292 S.W.2d 276, 281[6] (Mo.1956); Trimble, supra, at 355; Evett v. Corbin, 305 S.W.2d 469, 472[2] (Mo.1957). “This included the duty to see an observable pedestrian even though he was on the shoulder of the highway.” Harris v. Lane, supra, 379 S.W.2d at 638[1].

“The object and purpose of the strict requirement that persons operating motor vehicles keep a proper lookout upon public streets and highways is that they may acquire knowledge of the presence of other persons and objects on such streets and highways, and an awareness of dangerous situations and conditions. It is .only because of that knowledge and awareness that the operators of motor vehicles may take appropriate precautionary measures to avoid injury to themselves and other persons within an existing area of peril” (Emphasis added.) Miller v. St. Louis Public Service Company, supra, 389 S.W.2d at 771[2]

The duty to keep a careful lookout and the concomitant duty to take “effective precautionary action” do not arise at precisely the same moment. Thomas v. Wade, 361 S.W.2d 671, 674 (Mo. banc 1962); Graham v. Conner, 412 S.W.2d 193, 202 (Mo.App.1967).

“The question then is, when does the duty to act arise? It is not necessarily at the exact time there was a duty to see. Under the facts of this case, if the duty to see and the duty to act arose at the precise time, then under plaintiff’s theory every motorist driving on a city street would have to slow, stop, warn, or slacken his speed every time he saw or should have seen a child or elderly person, or possibly any person, on the sidewalk even though not approaching the street or the path of the vehicle. While it may be stated in various ways, and possibly in ways better than the manner it was expressed in Instruction No. 4, the duty to act when one does or should see arises at the time that a person, in the exercise of the highest degree of care, knew or should have known that there was danger, that is, a likelihood of injury.” (Emphasis added.) Thomas v. Wade, supra, 361 S.W.2d at 674.

In an automobile-pedestrian case the western district of this court pointed out that evidence of the relative positions of the automobile and the pedestrian with respect to the point of impact, “when defendant could and should have seen [the pedestrian] in a position fraught with danger,” was necessary in order to justify a finding by the jury that the defendant thereafter had the time, distance, means and ability to take effective precautionary action to avoid striking the pedestrian. Wallander v. Hicks, 526 S.W.2d 848, 851[3-4] (Mo.App.1975). See also Harris v. Lane, supra.

In the case at bar “no inference could have been drawn and no finding could have been made, other than by forbidden resort to unbridled conjecture, rank surmise and palpable guesswork,” Graham v. Conner, supra, 412 S.W.2d at 202, with respect to the following: (a) the initial position of Mrs. Winfrey — that is her location when she first could and should have been seen by defendant; (b) the location of defendant’s automobile at that time; (c) where Mrs. Winfrey then was looking; (d) what her bodily position then was; (e) whether Mrs. Winfrey then was in motion or not; (f) if Mrs. Winfrey was moving, in what direction; (g) the distance, if any, between Mrs. Winfrey’s initial position and the point of impact; (h) the speed or speeds with which Mrs. Winfrey moved if she in fact did move from her initial position to the point of impact and her course or courses in getting there; (i) the location of the point of impact; (j) whether defendant’s automobile “ran into [Mrs. Winfrey] or [Mrs. Winfrey] ran into the automobile,” Graham, supra, at 203, and what part of the automobile she contacted; (k) the nature and condition of the equipment on defendant’s automobile, i. e., the means available to him for the taking of “effective precautionary action.”

The foregoing deficiencies in the record demonstrate that plaintiff did not make a submissible case of actionable negligence on the part of defendant in failing to keep a careful lookout. In fine, there was no showing of what a careful lookout would have disclosed and what “effective precautionary action” defendant could (and, in the exercise of the highest degree of care, should) have taken, with the means available, in light of that disclosure.

Plaintiff seeks to supply some of the foregoing evidentiary deficiencies by asserting that the trial court erred in rejecting plaintiff’s offer of proof with respect to a habit of Mrs. Winfrey. The purported offer of proof consisted of the following statement made by plaintiff’s counsel to the trial court:

“[M]y offer of proof would be that I have two witnesses that would testify that they had known this woman over a lifetime and had walked with her upon numerous occasions and not upon one of those occasions did she ever cross the street other than at a cross walk.”

An offer of proof should be “specific and definite” and not a mere statement of conclusions of counsel. Kinzel v. West Park Inv. Corp., 330 S.W.2d 792, 796[4] (Mo.1959). An offer of proof must show all of the facts necessary to establish the admissibility of the testimony sought to be introduced, Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945, 952 (1931), in sufficient detail to demonstrate its relevancy and materiality. Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175[5] (Mo. 1958). It may be assumed that the party making an offer of proof will state it as favorably as he can. Rutledge v. Baldi, 392 S.W.2d 244, 248[4] (Mo.1965).

It has been said that “[i]t has long been the rule in this state that the proper procedure to present and preserve such an offer is to have the witnesses present; put them on the stand; propound the questions; and thus enable the trial court to intelligently rule upon, and an appellate court to review, the propriety and admissibility of the evidence sought to be elicited.” (Citing authorities.) State v. Sullivan, 553 S.W.2d 510, 513[2] (Mo.App.1977).

It is at least arguable that the foregoing offer of proof fails to meet the requirement of specificity. Plaintiff construes the offer to be equivalent to a showing that Mrs. Winfrey had a “careful habit of crossing streets only at intersections” and “within a crosswalk if one were available.”

A careful reading of the offer of proof discloses that it does not show where the walking was done and whether or not it involved the habitual crossing of streets. Arguably the offer could be satisfied by a showing that, although considerable walking may have been involved, she crossed a street only once and in so doing used a crosswalk.

Even if the offer is accorded a liberal construction and is given the meaning which plaintiff ascribes to-it, the outcome of this appeal is not altered. The only Missouri authority plaintiff cites in support of the admissibility of the offer is Gerhard v. Terminal Railroad Ass’n of St. Louis, 299 S.W.2d 866 (Mo. banc 1957), a case based on Illinois law. At p. 872 the court said:

“In cases where no eyewitness, to a fatal event is available, the jury may consider, along with the evidence, the natural instinct of men to avoid injury and the plaintiff is permitted to prove the ordinarily careful habits of decedent as tending to prove his freedom from contributory negligence. However, where there are eyewitnesses, as in the instant case, plaintiff cannot rely on the presumption or make such proof. Elliott v. Elgin, J. & E. Ry. Co., 325 Ill.App. 161, 59 N.E.2d 486. He does not contend otherwise.”

On rare occasions Missouri courts have dealt with the general topic of the admissibility of evidence pertaining to a habit of a person. In Hodges v. Hill, 175 Mo.App. 441, 161 S.W. 633 (1913) there was a collision between defendant’s horse and buggy and plaintiff’s mare which was being ridden by plaintiff’s son. The court stated that evidence that the plaintiff’s son was in the habit of riding the mare along the highway at the place of the accident at a high rate of speed was admissible. The court cautioned, however, that “the admissibility of this character of evidence should be restricted and kept within narrow limits. The principal objection to its admissibility is that it raises collateral issues and detracts the attention of the jury from the real point at issue, to wit, whether the party charged with negligence was negligent at the particular time in question, and that it raises issues which the opposite party will not be prepared to meet. This objection is largely avoided when the evidence is confined to the general habit of the party with reference to the particular act in issue.” Hodges at 636. The value of Hodges as a precedent, however, is questionable because the court itself expressed “some doubt as to its correctness” and stated also that the evidence did not prejudice the jury “even if improperly admitted.”

Other Missouri cases and foreign authorities in the general area are cited below.

Even if the offer of proof be regarded as a showing that Mrs. Winfrey had the habit, when crossing streets, to do so at crosswalks, most of the evidentiary deficiencies enumerated above remain unanswered. Even if plaintiff is given the benefit of her offer of proof, the record was insufficient to submit to the jury the issue of defendant’s negligence in failing to keep a careful lookout. Accordingly, it is unnecessary to consider the sufficiency of the evidence on the issue of damages.

The judgment is affirmed.

. TITUS, P. J., and CAMPBELL, HENRY and BARKER, Special Judges, concur.

      . “The issue was distinctly made. Plaintiff asserted he was shoved off the train by the conductor. The defendant’s witnesses testified he jumped and fell. On the part of defendant it was shown that plaintiff was in the habit of getting on defendant’s trains at this station, and riding several hundred feet, and dropping off. As explanatory of the accident and injury, in connection with the other evidence, we think this was competent evidence. It was confined to plaintiffs own conduct at this particular station.” Preston v. Hannibal & St. J. R. Co., 132 Mo. 111, 33 S.W. 783 (1896).
      “There is authority for the proposition that, in the absence of eyewitnesses to an accident, proof of the ordinarily careful habits of the decedent is permitted as tending to prove his freedom from contributory negligence, provided that such evidence be not too remote as to time, place and circumstances. Gerhard v. Terminal R. Ass’n of St. Louis, Mo. (banc), 299 S.W.2d 866, 872(12); Elliott v. Elgin, J. & E. Ry. Co., 325 Ill.App. 161, 59 N.E.2d 486, 492-493(9); 25A C.J.S. Death § 84, pp. 833-834. We find it unnecessary to express any opinion as to the legal validity of that proposition, for the evidence concerning the habits and record of instant plaintiffs’ decedent was received without objection or motion to strike and, therefore, its probative worth and effect were for the jury.” Walker v. Massey, 417 S.W.2d 14, 24 (Mo.App.1967).

      . “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the pres-
      ence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” Rule 406-Federal Rules of Evidence-28 U.S.C.A.
      “A habit ... is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time or of giving the hand signal for a left turn or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic. . [S]urely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it. Nevertheless, the judge should possess the discretion usual in this field of circumstantial evidence to exclude if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice or confusion.” McCormick on Evidence, 2d Edition, § 195, pp. 462-463.
      Where a habit of specific conduct is shown, the requirement that there be no eyewitnesses has been criticized and eliminated. See Glatt v. Feist, 156 N.W.2d 819 (N.D.1968), holding, where eyewitnesses disagreed, that evidence of plaintiffs habit of jaywalking at a particular spot was admissible.
      See 28 A.L.R.3d 1293 (Evidence-Habits of pedestrian). See also 81 Am.Jur.2d Autos, and High. Traf. § 940, p. 486.


source: Caselaw Access Project

author: PREWITT, Judge.

license: Public Domain

text:
    J. Tice ROLLINS and Phyllis Rollins, his wife, and Bill Payne and Mrs. Bill Payne, his wife, Plaintiffs-Respondents, v. Joe Leroy SCHWYHART, Defendant-Appellant.
    No. 10433.
    Missouri Court of Appeals, Southern District, En banc.
    Sept. 18, 1979.

      William A. Moon, Paul F. Reichert, Moon & Reichert, Springfield, for plaintiffs-respondents.
    Robert S. Wiley, Crane, for defendant-appellant.
   PREWITT, Judge.

Defendant appeals from a judgment of the trial court finding in favor of plaintiffs on their petition for an injunction and against defendant’s counterclaim.

Plaintiffs own land in Stone County, Missouri. In order to reach their land, plaintiffs use a roadway through defendant’s property. Because of plaintiffs’ alleged failure to maintain the roadway, defendant fenced the right of way on both sides and placed a gate across the roadway, denying the use of it to plaintiffs. Defendant contended plaintiffs lost their easement to the road by failing to maintain it. Plaintiffs then filed a petition for an injunction requiring the defendant to remove the gate. The trial court granted the injunction. Defendant does not complain on appeal of the court’s granting the injunction. He makes two points on appeal: (1) that the court erred in not rendering judgment on his counterclaim for $2,900, his fencing cost, and (2) that the trial court erred in not granting a judgment declaring that plaintiffs must share in the maintenance of the roadway.

Plaintiffs’ and defendant’s rights and obligations arise from a document entitled “Agreement for a Right of Way”, dated July 18, 1959. None of the parties to this suit were parties to that agreement. The grantors were defendant’s predecessors in title and one or more of the grantees were plaintiffs’ predecessors. The document grants “a right of way 30 feet wide for a roadway”. It then requires grantees to install and maintain two cattle guards, one at the entrance to the right of way from Highway 86, and another at the north side of the grant. Grantors reserved an equal right to use the roadway. No reference is made to maintenance of the roadway other than the cattle guards. The recited consideration paid to grantors was $166.50.

Defendant’s second point, that plaintiffs must share in the maintenance of the roadway, will be considered first. As the right of way agreement created the legal rights and obligations of the parties, we first look to it to determine plaintiffs’ obligations. In construing this agreement we must ascertain the intention of the parties, if possible, from the language of the document. Rutledge v. Union Electric Company of Missouri, 280 S.W.2d 670, 672 (Mo.1955); Amitin v. Izard, 252 S.W.2d 635, 639 (Mo.App.1952); 28 C.J.S. Easements § 26, p. 680. When parties reduce their agreement to writing it is presumed that the instrument contained their entire contract. Conservative Federal Savings & Loan Association v. Warnecke, 324 S.W.2d 471 (Mo.App.1959). We should not enlarge or extend the agreement. Conservative Federal Savings & Loan Association v. Warnecke, supra, 324 S.W.2d at 480. The agreement does not refer to maintenance of the roadway other than the cattle guards. To find plaintiffs obligated to maintain the other portions of the roadway, we would have to determine that it is implied from the terms of the document or that they are required to maintain it because of ownership and use of the easement. To imply a provision of maintenance where none occurs would be to create an obligation which the parties may not have intended. We should not imply unexpressed conditions as it may make an agreement contrary to what was intended. 17 Am.Jur.2d, Contracts, § 255, p. 651. Courts are careful not to imply a term as to which the contract may be intentionally silent. Glass v. Mancuso, 444 S.W.2d 467, 478 (Mo.1969). We should not make a new contract for the parties or rewrite their contract by construction. 17 Am.Jur.2d, Contracts, § 242, p. 629. We must determine a deed or contract by what it says, not by what it might have said. Kerrick v. Schoenberg, 328 S.W.2d 595, 599 (Mo.1959).

As the agreement is silent on the maintenance of the balance of the roadway, defendant contends that the maintenance should be shared proportionately by the ones using it. He cites cases collected in an annotation at 20 A.L.R.3d 1026. Those cases are not applicable here as no provisions for maintenance were made in the creation of the easements. The agreement here covers maintenance of a part of the right of way, the cattle guards. That maintenance is the requirement of plaintiffs and their predecessors. The agreement is silent as to any obligation of the grantees to maintain the remainder of the way. The parties provided for maintenance of part of the roadway. Where an agreement expresses one thing of a class, it implies exclusion of all not expressed. Lusk v. Lyon Metal Products, 247 S.W.2d 617 (Mo.1952); 17 Am.Jur.2d, Contracts, § 255, p. 652. This principle is to aid in ascertaining the intentions of the parties as discoverable upon the face of a document. Johnson v. Thompson, 251 S.W.2d 645, 647 (Mo.1952). It is “applicable only where clearer indications for construction are wanting”. 17A C.J.S. Contracts § 312, p. 173.

What conditions existed in 1959 regarding maintenance or what the parties contemplated at that time is not known. Were we to require plaintiffs to take over a share of the maintenance of all the roadway, we would be in effect writing a new clause in the agreement, which may have been contrary to the intentions of the parties. The parties may have considered that little or no maintenance was necessary for the road, as some evidence here indicated. They may have felt that the consideration was sufficient enough that grantors would maintain the road. There was evidence that little maintenance was required of the roadway, but almost constant maintenance necessary for the cattle guards. Grantors reserved an equal right to use the roadway. The grantee’s obligation to maintain the cattle guards may have been more burdensome than maintenance required on the remainder of the roadway. On the face of the instrument there is no obligation to maintain other than the cattle guards and we do not think additional maintenance can be required where some is provided for.

The only Missouri case which counsel cite, and we have been able to find bearing on the requirement of the owner of an easement to maintain or contribute to maintenance, is Schuricht v. Hammen, 221 Mo.App. 389, 277 S.W. 944 (1925). It held that the owner of the easement was not under obligation to repair a roadway or contribute to the cost of repair by the owner of the fee. In the opinion the court assumed that the easement right to use the private road was acquired by prescription. It has also been held that the owner of the servient estate (defendant herein) is under no obligation to maintain or repair an easement roadway. Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983, 987 (1933).

Defendant cites Swingler v. Robinson, 321 S.W.2d 29 (Mo.App.1959). It held that the dominant estate may be liable for failure to keep the easement in repair where the character of the easement is such that a failure to repair it may result in injury. That case has no application to the present controversy. We are determining the rights and obligations between the parties to the easement. Who, if anyone, may be liable for the failure to maintain the roadway if injury occurs, is a different question.

The trial court found that since the easement agreement contained no provision or condition regarding maintenance of the roadway, plaintiffs are not required to maintain it. We believe his finding was correct and rule Point II against defendant.

Point I of the defendant contends that the trial court erred in not rendering judgment for defendant on his counterclaim for $2,900. The counterclaim was for the cost of fencing allegedly required due to plaintiffs’ failure to maintain the cattle guards. Defendant argues that the court’s judgment against him on his counterclaim was inconsistent with the court’s findings. The trial court found that plaintiffs failed to maintain a cattle guard and that the cattle guard was necessary to keep defendant’s cattle in their enclosure and, because of this, defendant fenced both sides of the right of way. Defendant testified and the trial court found that defendant fenced the right of way at a cost of $2,900. The court did not find that it was necessary or reasonable to do the fencing.

The trial court’s findings are not inconsistent with the judgment on defendant’s counterclaim. Even if the defendant fenced because of plaintiffs’ failure to maintain the cattle guards, it does not necessarily follow that defendant recovers on his counterclaim. Plaintiffs were charged with failing to maintain the cattle guards. If this occurred, defendant’s proper measure of damages was the cost to maintain the guards. Defendant did not maintain them but chose instead to fence the right of way. There was no finding that this was reasonable or necessary under the circumstances. Also, there is no evidence of the cost of maintaining the cattle guards. There was evidence from defendant as to what it would cost to put in cattle guards and maintain them. Defendant said that was about the same as his fencing cost. However, cattle guards were already in, until defendant removed them. There was no evidence as to what just the cost of maintenance of the cattle guards would have been. Thus, there was no evidence as to the damages for failure to maintain the cattle guards. The defendant’s testimony as to the fencing and the cost of putting in and maintaining cattle guards may have been undisputed, but it was not a correct measure of damages.

Had the defendant’s testimony been sufficient on the element of damages, still the judge did not have to believe it even if uncontradicted. Labor Discount Center, Inc. v. State Bank & Trust Company of Wellston, 526 S.W.2d 407, 421 (Mo.App.1975). The trial judge can believe all or a part of a witness’ testimony and reject the rest. Estate of Sheets v. Sheets, 558 S.W.2d 291, 296 (Mo.App.1977).

Findings of fact were not requested by either party, and the court did not make a specific finding setting forth in detail why he found against defendant. All facts which are not specifically found are determined to be in accordance with the result reached. Moore v. City of Pacific, 534 S.W.2d 486, 491 (Mo.App.1976). The trial court may have found the evidence insufficient on damages. The trial judge will be affirmed if correct on any reasonable theory supported by the evidence. Roth v. Roth, 571 S.W.2d 659, 664 (Mo.App.1978).

It can be reasonably concluded that the trial court could have found the evidence insufficient that it was necessary to fence. No reason was given why defendant could not have maintained the cattle guards and asked for that cost. The judge might have found for plaintiffs on the counterclaim because the damages were not proven to his satisfaction. Defendant fenced both sides of the roadway from one cattle guard to the other cattle guard with 39 inch woven mesh and two barbed wires. Before the fence was built, he had cattle, horses, hogs, and goats get out. The fence was apparently designed to hold in more than just cattle. Whether the cattle guard was so designed, we don’t know. The judge found the cost of fencing at $2,900, but did not find that it was necessary, because of plaintiffs’ breach of the maintenance of the cattle guards. A finding, either that such fencing was not necessary, or defendant’s damages not sufficiently proven, would be reasonable and would not be inconsistent with the court’s other findings. The trial court’s judgment is presumptively correct, and the defendant has the burden to demonstrate that the judgment is erroneous. French v. Tri-Continental Leasing Co., 545 S.W.2d 345, 348 (Mo.App.1976). We do not believe such a showing has been demonstrated. This point is likewise ruled against defendant.

• The judgment is affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. David FRAZIER, Defendant-Appellant.
    No. 10973.
    Missouri Court of Appeals, Southern District, Division Three.
    Sept. 18, 1979.

      John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lawrence H. Rost, New Madrid, for defendant-appellant.
   PREWITT, Judge.

Defendant was convicted of murder in the first degree. Section 559.007, RSMo 1969. He was sentenced to life imprisonment.

Defendant was charged in connection with the death of Ira Smith, from an incident occurring on April 22, 1977, in Talla-poosa, New Madrid County, Missouri. He and two others were arrested in Alice, Texas on April 23, 1977. At approximately 10:00 p. m. on April 26th, he was questioned by the sheriff of New Madrid County, in the jail in Alice, and signed a written statement implicating himself in Mr. Smith’s death.

Defendant contends on appeal that the trial court erred in overruling his motion to suppress that statement because the State failed to show that he knowingly and intelligently waived his privilege against self-incrimination and his right to appointed counsel. Defendant contends that he did not understand the rights read to him, and did not intelligently and knowingly waive his right to remain silent and to receive appointed counsel.

The confession was reduced to writing by a Texas police officer on a form. On the top half of the first page is printed the information required to be given before questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Both pages of the statement were signed by defendant. Pertinent facts from the statement are recited in the balance of this paragraph. Defendant was staying in Peach Orchard, Missouri, with Jim Garrett, when Garrett asked him if he wanted to go to McAllen, Texas. Defendant asked Garrett where he was going to get enough money to go and Garrett said he knew where there was an old man that they could “knock on the head”. They went to Talla-poosa, parked down the street, and started walking toward Smith’s place. Defendant told Garrett “that old man knows me and we’re going to get caught.” Garrett then told defendant, “he knows me too.” They went back to the car and rode around for an hour or an hour and a half and then Garrett said, “let’s go back and hit him on the head anyway.” They went back and Garrett told Mr. Smith they wanted to buy some car tires and Smith took them to a shed where the tires were kept. Garrett told defendant to “hit him”, and defendant picked up a piece of iron and hit Mr. Smith. Garrett took some money from Mr. Smith and they returned to the car where Connie [defendant’s sister] was waiting. He gave the money to her and she counted $519 in cash.

After the crime, they drove to Alice, Texas, and were arrested at a motel there. Garrett was convicted of the first degree murder of Mr. Smith and sentenced to life imprisonment. That conviction was affirmed by this court in State v. Garrett, 566 S.W.2d 516 (Mo.App.1978).

Defendant was 21 years of age when he gave the statement. He testified that he was in special education from the third to the eighth grade and quit school during the eighth grade. He said he could read “a little bit” and could understand “some things”. He recalled the sheriff reading him his rights from a paper and said that it took about a minute. He remembered that he had a right to remain silent, but didn’t recall being informed of any other rights. He was not mistreated in jail, and no threats or promises were made by any officials. The only threat that he received was from a jail inmate. Jim Garrett had told the inmate to say he would kill defendant if defendant didn’t sign a statement “to turn him [Jim] and Connie loose”. When taken in custody by the sheriff’s department in Alice, Texas, they advised him of his “Miranda rights”. At the hearing on his motion he read the statement, which took him about two-and-a-half to three minutes. He said the only part not true was where it said that he struck the victim. Defendant said that Jim had actually struck Mr. Smith. Defendant stated that he did not read the statement before signing it.

The New Madrid County sheriff testified that he read defendant the “Miranda warning”, and following the reading, defendant said he understood it. Defendant did not ask any questions about the warning. The sheriff testified that no promises, threats, or coercion were used and defendant voluntarily gave the written statement. The sheriff was satisfied that defendant understood the warning. The sheriff said defendant did not have any complaints of his treatment while being held in jail in Alice. The trial court found that the State had sustained its burden of proof and overruled the motion to suppress.

The burden is upon the State to show that the defendant was effectively advised of his rights, and intelligently and understandably waived them. State v. Alewine, 474 S.W.2d 848, 851 (Mo.1971). Voluntariness of the confession is for the State to prove by a preponderance of the evidence. State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978); State v. Curry, 578 S.W.2d 283, 285 (Mo.App.1979).

The trial court did not have to believe defendant’s self-serving statements. State v. Curry, supra, 578 S.W.2d at 285; State v. James, 562 S.W.2d 185, 187 (Mo.App.1978). That defendant may have been of low mentality does not render the confession inadmissible. It is merely one factor, although a significant one, which bears upon the question of voluntariness. State v. Hyster, 504 S.W.2d 90, 95 (Mo.1974). The trial judge was able to observe defendant in the courtroom while testifying, and while reading the statement. The judge was in a better position than we to determine defendant’s mental capacity and his ability to read, understand, and comprehend. The trial court found that the statement was voluntarily given, and the State had met its burden of proof for the statement to be introduced into evidence. Credibility of the witnesses is for the trial court to determine. State v. Alewine, supra, 474 S.W.2d at 852. Where evidence is conflicting, the admissibility of a confession is in the discretion of the trial court. State v. James, supra, 562 S.W.2d at 187. The evidence was sufficient for the trial court to find that the State met its burden of proof regarding the confession.

An examination of the record shows that no error, plain or otherwise, occurred which affected defendant’s substantial rights.

Respondent’s motion to dismiss the appeal, which was taken with the case, is overruled.

The judgment is affirmed.

All concur.


author: BROCK, Chief Justice.

text:
    John E. GREENE, Lennis C. Greene, Edsel Hodges, Shirley Y. Hodges, Edsel Cook and Carolyn V. Cook, Petitioners, v. Willie O. GLEATON, James Wiley Maze and Joanne Wilson Maze, Respondents.
    Supreme Court of Tennessee.
    Sept. 4, 1979.
    Rehearing Denied Oct. 9, 1979.
    Bob McDaniel Green, Johnson City, for petitioners.
    Max E. Wilson, William L. Guy, Mountain City, for respondents.
   OPINION

BROCK, Chief Justice.

The issue in this case is whether the Court of Appeals erred in striking the bill of exceptions upon the ground that it was not filed within the time permitted by the order of the trial court.

This action was brought by plaintiff property owners against the defendants seeking damages for alleged injuries to their real estate caused by the defendants’ diversion of surface waters. It was tried by the Chancellor without a jury and resulted in a judgment in favor of the plaintiffs against the defendants for $10,000. A final judgment was entered on February 3, 1978, and did not contain any provision respecting an appeal or the filing of a bill of exceptions. The defendants did not file a motion for a new trial but on February 25, 1978, pursuant to their motion, the Chancellor entered an order granting an appeal and providing that

“. . . The defendants are permitted sixty days within which to perfect the said appeal and to file their bill of exceptions.”

On April 25, 1978, being 59 days from the filing of the above quoted order and 81 days from the entry of the final judgment from which the appeal was taken, the defendants filed their bill of exceptions.

The Court of Appeals held that the above quoted order allowed only 60 days from the date of the entry of the final judgment within which to file a bill of exceptions and, therefore, that the bill of exceptions which was filed 81 days from that date was too late and, accordingly, ordered the same stricken. The defendants have petitioned this Court for certiorari contending that the quoted order should be construed as allowing 60 days from the date of the entry of that order or as granting 60 days in addition to the 30 days automatically allowed by T.C.A., § 27-111, from the date of entry of the final decree for the filing of a bill of exceptions, and that under either construction the bill of exceptions was timely filed and should not have been stricken.

T.C.A., § 27-111, in pertinent part, provides:

“In all cases . . . either party may file a bill of exceptions . . . , provided the bill of exceptions . . . [is] filed within thirty (30) days from the entry of the order or action of the court which occasioned the filing of [the bill of exceptions]. The judge or chancellor may within the aforesaid thirty (30) day period . . extend the time for filing said [bill of exceptions] for not exceeding an additional sixty (60) days. The maximum period of ninety (90) days shall be computed, . . . from the date of final judgment, . . . ”

Obviously the order of the Chancellor, above quoted, is ambiguous in that it does not state what the starting point is for counting the sixty days allowed. Conceivably it could be interpreted as urged by the petitioners.

However, we conclude that the construction employed by the Court of Appeals is correct and that the sixty days allowed were intended to begin on the date that the final decree was entered. If the order in question dealt only with the filing of the bill of exceptions we would adopt one of the two possible constructions urged by the petitioners and thus save the bill of exceptions in this case. Such is our policy of liberality, whenever possible. Saunders v. McKenzie, 572 S.W.2d 653 (Tenn.1978); Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974).

But, here the order not only allows time for filing the bill of exceptions but also allows the same period of sixty days “to perfect the said appeal.” Because T.C.A., § 27-312, permits no more than a total of sixty days from entry of a final judgment to be allowed for the appealing party “to give bond or take the oath,” the logical conclusion is that the experienced and learned Chancellor intended that the sixty day period allowed “. . . to perfect the said appeal and to file their bill of exceptions” was to begin as of February 3, 1978, the date of entry of the final decree. Any other construction would attribute to the Chancellor an intent to make an invalid order, i. e. to allow more time than is permissible under T.C.A., § 27-312, within which “. . .to give bond or take the oath.”

We conclude that the Court of Appeals was correct. Its order is affirmed. Costs in this Court are taxed against petitioners.

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

      . “When an appeal or appeal in the nature of a writ of error is prayed from a judgment or decree of an inferior court to the Court of Appeals or Supreme Court, the appeal shall be prayed and appeal bond shall be executed or the pauper oath taken within thirty (30) days from the judgment or decree of the court, but satisfactory reasons shown by affidavit or otherwise, and upon application made within the thirty (30) days, the court may extend the time to give bond or take the oath, but in no case more than thirty (30) days additional.” T.C.A. § 27-312.


author: COOPER, Justice.

text:
    Doyle A. HOLDER, Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant.
    Supreme Court of Tennessee.
    Oct. 1, 1979.

      Donald G. Dietrich, Paul H. Dietrich, Cleveland, for appellant.
    Gene Sinor, Chattanooga, for appellee.
   OPINION

COOPER, Justice.

Appellee was awarded seventy-five percent permanent partial disability benefits as the result of an injury sustained on February 9, 1978, in an on-the-job accident. On appeal, the employer’s insurance carrier questions only the percentage of permanent disability found by the chancellor. Appellant insists that the chancellor misunderstood the testimony of the treating physician and that as a consequence the award of disability was contrary to the law and the evidence. Appellant also insists that appel-lee “failed to attempt to mitigate or minimize any losses which he might have suffered due to his work-related injury.” We find no merit in either insistence.

On trial of the cause it was conceded that Doyle Holder sustained an injury in the course and scope of his employment by the Jackson Manufacturing Company. Mr. Holder was treated by physicians of the company’s choice, including Dr. Samuel Meredith who testified in this cause. Dr. Meredith diagnosed Mr. Holder’s injury as a ruptured or herniated disc in the lumbar area of the spine. This diagnosis was confirmed by the results of a myleogram performed on Mr. Holder at Dr. Meredith’s direction. Dr. Meredith treated Mr. Holder by conservative methods for several months, and then recommended that Mr. Holder undergo surgery. Dr. Meredith made an appointment for Mr. Holder to be examined by an orthopedic surgeon in Knoxville, Tennessee, “for a more complete evaluation of appellee’s injury and an evaluation of appellee’s psychological makeup preparatory to surgery.” Mr. Holder declined to have surgery and did not keep the appointment with Dr. Fardon.

Dr. Meredith’s testimony relative to ap-pellee’s disability from the back injury is difficult to reconcile; however, it is clear that appellee is permanently disabled to some degree from his injury. Dr. Meredith testified plaintiff was totally disabled during the five plus months he treated him and at the time of the taking of the deposition to be used in the trial of this cause, and that surgery was necessary to correct the condition; yet, he assigned appellee an impairment rating of only ten percent to the body as a whole. Dr. Meredith further testified that with or without surgery, Mr. Holder would have some degree of permanent disability.

Medical causation and the permanency of an injury must be established by expert medical testimony. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). Once they are established, the trier of fact is not required to accept the medical opinion as to the extent of the workman’s disability, but is charged to determine the extent of disability from all the evidence, both expert and nonexpert. A. C. Lawrence Leather Company v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1971). In doing so, the trier of fact considers many pertinent factors, including job skills, education, training, duration of disability, and job opportunities for the disabled, in addition to the anatomical disability testified to by medical experts. See Federated Mutual Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967).

In this case, in addition to the anatomical disability rating given by Dr. Meredith, there is evidence, that appellee can perform no task that requires him to lift, stoop, or bend, or that requires him to sit or stand for an extended period of time. Further, appellee is limited in education, having completed only one year of high school, and his work experience has been as a laborer or as an upholsterer of furniture, which requires him to lift large, outsized objects, and to bend and stoop continually — tasks which appellee cannot perform without severe pain.

In our opinion, this evidence supports the chancellor’s finding that appellant has a permanent partial disability of seventy-five percent of the body as a whole.

Appellant devotes much of its brief to the argument that appellee “failed to attempt to mitigate or minimize any losses which he might have suffered due to his work-related injury,” and that consequently the award of benefits was error. The argument is predicated on the failure of appellee to keep the appointment with Dr. Fardon for evaluation of his injuries and a psychological evaluation preparatory to surgery. The surgery contemplated was a laminecto-my to remove the herniated disc. It is serious surgery and there is no guarantee the surgery will improve appellee’s physical condition. On being told this by Dr. Meredith and on being told the dangers incumbent in the operation, appellee decided against surgery, which is his prerogative. See Mazanec v. Aetna Insurance Co., 491 S.W.2d 616 (Tenn.1973); Tatum v. Palmer, 207 Tenn. 456, 340 S.W.2d 914 (1960). Having decided not to have the operation, ap-pellee can not be subject to loss of benefits for failing to keep an appointment for a psychological evaluation preparatory to surgery.

Decree affirmed. Costs incident to the appeal are adjudged against Liberty Mutual Insurance Company.

BROCK, C. J., HENRY and HARBISON, JJ., and BROOKS McLEMORE, Special Justice, concur.


author: BROCK, Justice.

text:
    Woody Joe DUNCAN, Petitioner, v. STATE FARM FIRE & CASUALTY COMPANY, Respondent.
    Supreme Court of Tennessee.
    Oct. 1, 1979.
    Jerry Shattuek, Clinton, for petitioner.
    Don A. Layton, Oak Ridge, for respondent.
   OPINION

BROCK, Justice.

The sole issue presented for our decision in this case is whether an innocent purchaser for value of a stolen automobile acquires an insurable interest in the vehicle sufficient to validate a policy of insurance against its damage or loss by collision. We hold that he does and overrule the decision in Insurance Co. of No. Am. v. Cliff Pettit Motors, Inc., Tenn., 513 S.W.2d 785 (1974), which held to the contrary.

Petitioner, Duncan, who was engaged in the business of hauling coal in Anderson County, purchased a tractor-trailer rig from a seller in Alabama, a non-title state. Duncan arranged to finance the purchase by means of a loan from the City and County Bank of Anderson County, Tennessee, N.A., to whom he executed and delivered a promissory note and a security agreement pledge of the vehicle as security for payment of the note. Upon purchasing the tractor-trailer Duncan purchased a policy of collision insurance from the respondent, State Farm Fire and Casualty Company, which contained a loss payable clause in favor of the bank. After the tractor-trailer rig was used by Duncan for approximately six months in his coal hauling business, it was destroyed in a single vehicle collision accident. Duncan immediately notified the respondent insurance company and made claim for the loss but the insurance company declined to pay the claim upon the ground that the vehicle had been stolen prior to its purchase by Duncan and that Duncan had no insurable interest in the vehicle.

Duncan became delinquent in making payments on the purchase money note and the bank brought suit against Duncan to collect $12,727.98 plus attorney’s fees of $1,500.00. Duncan admitted his obligation to the bank but filed a third party complaint against the insurance company seeking to recover the collision loss under the policy. The Chancellor entered a decree in favor of the bank against Duncan for the amount owing on the note and the attorney’s fees above mentioned and also awarded to Duncan a recovery against the insurance company for the amount of the judgment which he had rendered against Duncan in favor of the bank.

From this decree of the Chancellor, both Duncan and the insurance company appealed to the Court of Appeals, Duncan asserting that he was entitled to recover the full amount of the fair market value of the tractor-trailer rig, $19,650.00, from the insurance company, and the insurance company asserting that the trial court had erred in finding that Duncan had an insurable interest and in awarding any recovery at all on the policy. The Court of Appeals, considering that the decision of this Court in Insurance Co. of No. Am. v. Cliff Pettit Motors, Inc., supra, was controlling, reversed the judgment of the Chancellor in favor of Duncan and against the insurance company, holding that Duncan had acquired no insurable interest in the destroyed tractor-trailer rig. Judge Sanders, in a separate opinion, reluctantly concurred in the result only, criticizing the decision in Insurance Co. of No. Am. v. Cliff Pettit Motors, Inc., supra. We granted the petition for certiorari filed by Duncan.

It is, of course, essential to the validity of a contract of insurance that the insured have an “insurable interest” in the property insured; otherwise, the contract amounts to no more than a wager and is void because of violation of pubilic policy. Vinson v. Mills, Tenn., 530 S.W.2d 761 (1975); Cherokee Foundries v. Imperial Assur. Co., 188 Tenn. 349, 219 S.W.2d 203, 9 A.L.R.2d 177 (1949); Aetna Insurance Co. v. Miers, 37 Tenn. 139 (1857).

We have for many years in this State followed the principle that one has an insurable interest in property if by its continued existence he will gain an advantage, or if by its damage or destruction he will suffer a loss, whether or not he has any title in, lien upon or possession of the property. Cherokee Foundries v. Imperial Assur. Co., supra; Pappas v. Insurance Co. of State of Pa., 54 Tenn.App. 633, 393 S.W.2d 298 (1965); Isabell v. Aetna Insurance Company, Inc., Tenn.App., 495 S.W.2d 821 (1971). This principle was further liberalized by our decision in American Indemnity Co. v. Southern Missionary Col., 195 Tenn. 513, 260 S.W.2d 269, 39 A.L.R.2d 714 (1953) in which it was held that it was not necessary to show for a certainty that the insured would sustain economic injury from loss of the insured property but that it was sufficient that loss of the property might subject the insured to such injury. These holdings are in accord with the decisions of other courts throughout the country. See, 43 Am.Jur.2d Insurance § 466 (1969); 44 C.J.S. Insurance § 175 (1945).

Upon thorough reconsideration of the issue, we have concluded that the Court erred in Insurance Co. of No. Am. v. Cliff Pettit Motors, Inc., supra, in holding that “a good faith purchaser for value of a stolen automobile has no insurable interest in the stolen vehicle, and therefore cannot recover under his insurance policy for its loss or destruction,” Clearly, such a purchaser stands to benefit from the continued existence of such a vehicle because of the continued availability of its use to him unless and until the true owner reclaims it; and, he runs the risk of pecuniary loss by its destruction not only because of the loss of its use, but also because, as a constructive bailee of the property, he may incur liability to the true owner for the value of the vehicle, in the event the true owner makes a claim for its return and he is unable to make delivery because it is destroyed. Although there are some decisions to the contrary, we conclude that the better, more just rule is to recognize an insurable interest in such cases. The modern trend of authority is in this direction. See, Skaff v. United States Fidelity & Guaranty Company, Fla., 215 So.2d 35. (Fla.App.1968); Scarola v. Insurance Co. of No. America, 31 N.Y.2d 411, 340 N.Y.S.2d 630, 292 N.E.2d 776 (1972); Barnett v. London Assur. Corporation, 138 Wash. 673, 245 P. 3 (1926); Savarese v. Hartford Fire Ins. Co., 99 N.J.Law 435, 123 A. 763 (1924); Horton v. State Farm Fire & Cas. Co., Mo.App., 550 S.W.2d 806 (1977); Gordon v. Gulf American Fire and Casualty Company, 113 Ga.App. 755, 149 S.E.2d 725 (1966); Simon v. Travelers Ins. Companies, 85 Misc.2d 264, 378 N.Y.S.2d 870 (1975). National Sec. Fire & Cas. Co. v. Hester, 292 Ala. 592, 298 So.2d 236 (1974).

The judgment of the Court of Appeals is reversed and the cause is remanded to the trial court for entry of a decree that Woody Joe Duncan recover of State Farm Fire and Casualty Company the sum of $19,650.00, the stipulated value of the insured tractor and trailer vehicles and for such other proceedings as may be proper in the premises.

Costs of appeal are adjudged against respondent, State Farm Fire and Casualty Company.

FONES, COOPER and HARBISON, JJ., and HUMPHREYS, Special Justice, concur.

      . An innocent purchaser of stolen property is liable to the rightful owner for the proceeds received from its resale. McDaniel et al. v. Adams, 87 Tenn. 756, 11 S.W. 939 (1889); Creach v. Ralph Nichols Co., 37 Tenn.App. 586, 267 S.W.2d 132 (1954).
      It is the rule, generally, that anyone who has made himself responsible for the safety of personal property has a sufficient interest in it to enable him to obtain insurance upon it. Baird v. Fidelity-Phenix Fire Ins. Co., 178 Tenn. 653, 162 S.W.2d 384, 140 A.L.R. 1226 (1942); 43 Am.Jur.2d Insurance § 469 (1969); 8 Am.Jur.2d Bailments § 125 (1963).


author: HARBISON, Justice.

text:
    Earl P. HUDDLESTON, Appellee-Plaintiff, v. P & L COAL COMPANY and Bituminous Casualty Corporation, Appellants-Defendants.
    Supreme Court of Tennessee.
    Oct. 1, 1979.
    Don Moses, Jellico, David B. Rogers, La-Follette, for appellee-plaintiff.

      Prank Q. Vettori, Knoxville, for appellants-defendants; O’Neil, Parker & Williamson, Knoxville, of counsel.
   OPINION

HARBISON, Justice.

In this workmen’s compensation case the employer and its insurer appeal from an award to the employee for total permanent disability benefits as the result of coal worker’s pneumoconiosis. After careful consideration of the record and of the assignments of error, we affirm the decision of the trial judge.

The employee, Earl P. Huddleston, worked in underground coal mining for nineteen years prior to 1964. For three years thereafter he engaged in logging. During the years from 1967 until 1974 he worked in the coal mining industry in surface or strip mines.

Appellee had suffered from lung disease and shortness of breath for many years, and had made application for Federal Black Lung benefits in 1972. This application was sustained on March 29,1974, and it was determined that he was entitled to monthly benefits from and after May 1972 on the basis of total permanent disability from coal worker’s pneumoconiosis.

The employee testified that although he knew he was totally disabled in 1973, and had been so advised by a thoracic surgeon, he nevertheless felt compelled to seek employment with appellant P & L Coal Company in December 1973 for financial reasons. He testified that he was obligated to make mortgage payments on his home, and that he either had to go to work or lose his home by foreclosure. He testified that he was a skilled mechanic and had been employed in that capacity by other mining companies. He was apparently not subjected to any sort of physical examination or other pre-employment inquiry. He commenced work near the end of December 1973 and worked continuously in or near strip-mining operations conducted by appellant until September 7, 1974, a period of approximately nine months.

In his work as a mechanic, appellee performed maintenance and repairs on heavy mining machinery and equipment. Most of the time he worked some distance from the actual strip-mine pit, but at times he was required to go into the pit to work upon disabled equipment and machinery.

There is little question but that appellee was exposed to dust during these months of employment. Although the job was considerably cleaner and the working atmosphere much less dusty than that which he had encountered in underground coal mining, nevertheless he was exposed both to road dust and to coal dust in his working environment. He worked out-of-doors, and he testified that sometimes his working conditions were free of dust. On other occasions, however, he would be in or near vehicles which would create ground dust, and some of the vehicles were trucks loaded with coal. He also worked on and maintained equipment, such as bulldozers, drills and lifts.

Upon examination by the trial judge, the following testimony was elicited:

“THE COURT: Now what exposure to particles in the air, dust of any kind, did you have on the job?
“THE WITNESS: Well, when you’re working on equipment they’ll be something pass, you’ll pick up dust regardless.
“THE COURT: Well, would it be any more so than it would if you were sitting on a porch and an automobile passed on a gravel road, is that what you’re talking about, that kind of dust?
“THE WITNESS: Oh, yeah, it’d be worse than that.
“THE COURT: Well, what would pass, be specific?
“THE WITNESS: Well, lots of times a dozer would be down and a high lift would pass or one of these back dumps would pass backwards and forwards to the fuel tanks and stuff and they stir up dust.
“THE COURT: Well, your place where you worked on machinery wasn’t located in the area between the pit and the waste pits and things of that sort, you were off out to the side and you say what dust you got was from things going to the fuel depot and back?
“THE WITNESS: They would get it where they could out of the dust. Sometimes, very often, I would have to work on it in the dust, but not regular.”

Appellee testified that his shortness of breath and lung condition grew worse during the months while he worked for appellant, but that he “worked ’till I got disabled completely and quit.” He testified that he worked some fifty to fifty-eight hours per week continuously during the period of his employment by appellant.

There is no question from medical testimony filed in this case that appellee is totally permanently disabled as a result of coal worker’s pneumoconiosis. He must have been almost so disabled, at least from a medical standpoint, at the time when he began to work for appellant. At that time his claim for federal benefits was pending. It was later allowed, but after he went to work for appellant, he became ineligible, and his Federal Black Lung benefits were terminated as a result of that employment. At the time of the hearing of the present case, appellate proceedings seeking review of his termination were still pending.

Dr. Joseph Fox, a physician practicing in a coal mining region of the state, testified that he had examined appellee on February 14, 1972. According to the history given him, appellee had been advised to quit underground coal mining operations in 1964. Dr. Fox testified that he found appellee to be suffering from coal worker’s pneumoco-niosis and advised him not to return to coal mining work. He said that appellee suffered from a significant disability in February 1972, and that when he re-examined the patient during 1976 his condition had deteriorated. At the time of his deposition on October 7, 1976, Dr. Fox was of the opinion that appellee was totally and permanently disabled. He testified that pneumoconiosis is a progressive disease, but that working in a dusty environment would aggravate the condition. He testified that if appellee worked with “no exposure to dust”, then his working environment should not aggravate his condition. He testified: however, “I can’t imagine a strip pit without any dust.”

Dr. Fox further testified:
“Q. Would it have made any difference in the man’s condition by 1976 as to whether or not from 1972 to 1976 he had been exposed to dust?
“A. Yes. And that would have been against medical advice, because I told him to avoid it, when I saw him in 1972. I don’t know whether he worked further in the mines or not, but he was told not to.
“Q. You took no further history from him in 1976?
“A. No, I did not.
“Q. Is this condition that he had expected to last for more than a year?
“A. Yes, it’s a chronic disease. It will be with him the rest of his life.”

Dr. Sheldon E. Domm, stipulated to be a highly qualified thoracic surgeon, examined appellee on November 14, 1975 and found that he was suffering from coal worker’s pneumoconiosis to the extent that he was “disabled for the performance of significant labor inside or outside of coal mines.”

From the foregoing, we are of the opinion that there was substantial and material evidence to justify the conclusion of the trial court that appellee was exposed to dust of various kinds in his employment with appellant, and that his coal worker’s pneumoconiosis culminated in total permanent disability during and as a result of that employment.

Appellants, however, insist that the last employer of appellee, P & L Coal Company, is not liable to appellee because he had not been employed by that company for as much as one year, so as to make appellant “a responsible operator” under the federal regulations promulgated by the Secretary of Health, Education and Welfare, 20 C.F.R. §§ 725.303 and .311. Appellants insist that the liability of the employer for coal worker’s pneumoconiosis is governed by federal, rather than state, law.

We are unable to agree with appellants’ contention. T.C.A. § 50-1102 provides:

“In considering whether an employee has the occupational disease of coal worker’s pneumoconiosis and is totally disabled or dies therefrom all the presumptions, criteria and standards contained in or promulgated by reason of the Federal Coal Mine Health and Safety Act of 1969, Public Law 91 — 173, specified as the basis for determining eligibility of applicants for benefits because of said disease or its effects shall be used and be applicable under this law; and where in a proceeding under this law for benefits it is determined the employee or his dependents would be entitled to benefits under the Federal Coal Mine Health and Safety Act of 1969, the said employee or his dependents by reason of said determination shall be considered totally disabled from coal worker’s pneumoconiosis and its effects, under this law the same as if said employee, or his dependents, establishes the right to recover benefits based upon a total disability from coal worker’s pneu-moconiosis, or death by reason thereof under the laws of this state.” (Emphasis added).

In other portions of the Tennessee Workmen’s Compensation Act dealing with occupational diseases, specific references are made and separate treatment given to coal worker’s pneumoconiosis. At no point, however, do we find that the General Assembly adopted all of the provisions of the 1969 federal legislation above referred to, or that it in any way changed or intended to change the provisions of T.C.A. § 50-1106, which deals with successive employers. That statute, as it existed at all times pertinent to this case, provides:

“When an employee has an occupational disease that is covered by the Workmen’s Compensation Law, the employer in whose employment he was last injuriously exposed to the hazards of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
Although previous cases in the state have not expressly discussed the contention of appellants, it is clear that in determining liability of successive employers, the courts have applied the Tennessee statute, rather than federal criteria, in coal worker’s pneu-moconiosis cases. Thus in Hill v. Four-Leaf Coal Co., 529 S.W.2d 225 (Tenn.1975) the employee had worked for some nine years for Four-Leaf Coal Company when he became totally disabled from pneumoconiosis. After he left the employ of that company, however, he worked on four different days for another strip mining company, and it was the insistence of Four-Leaf Coal Company in that case that this subsequent employment exonerated it and rendered the last employer liable. The trial court determined, however, that there was no “injurious” exposure to the hazards of the disease during the brief and sporadic occasions of work by the employee after he left the employment of Four-Leaf Coal. It was accordingly determined that Four-Leaf Coal, rather than the subsequent employer, was liable under T.C.A. § 50 — 1106.

In the more recent case of Bituminous Casualty Corp. v. Lewis, 538 S.W.2d 604, 606 (Tenn.1976), the Court said:

“The chancellor further found that ap-pellee was last injuriously exposed to the hazards of the disease when he was working for Kopper Glo. These findings made appellant liable for payment to appellee of workmen’s compensation benefits (T.C.A. 50-1106), provided appellee prosecuted his claim for benefits properly.”

As pointed out by the trial court, the proof in this case was somewhat meager and a close question was presented as to whether the employee was injuriously exposed during the months of his employment with appellant. We are of the opinion that the evidence was sufficient to justify a trier of fact in reaching the conclusions which were drawn by the trial judge.

Accordingly the assignments of error are overruled and the judgment of the trial court is affirmed at the cost of appellants.

The cause will be remanded to that court for such further orders as may be necessary or appropriate.

BROCK, C. J., COOPER and HENRY, JJ., and McLEMORE, Special Justice, concur.

      . Cf. Oman Constr. Co. v. Bray, 583 S.W.2d 303 (Tenn. 1979).


text:
    Gordon M. SEAY, Appellee, v. TOWN OF GREENEVILLE, Appellant.
    Supreme Court of Tennessee.
    Oct. 1, 1979.
    Thomas L. Kilday, Milligan, Coleman, Fletcher, Gaby & Kilday, Greeneville, for appellant.
    William Clyde Russell, Greeneville, for appellee.
   OPINION

COOPER, Justice.

In this workmen’s compensation case the employer appeals from the chancellor’s award of benefits to the employee. Appellant insists the chancellor erred in finding that the appellee suffered a 50% permanent partial disability to the body as a whole which was causally related to his employment injury. After reviewing the record, we are of the opinion that there is material medical evidence to support the chancellor’s finding of causal relationship between ap-pellee’s last on-the-job injury and his disability, and the chancellor’s decree is affirmed.

The employee, Gordon Seay, only has a fourth grade education and cannot read or write; consequently, he has always earned his living by doing heavy manual labor. He is accident-prone, both on and off the job, and has been injured on several occasions. Despite these injuries, he was able to work with reasonable regularity throughout the years of his employment by the maintenance department of the Town of Greene-ville, doing whatever task was assigned to him.

On Saturday, March 25, 1977, appellee was assigned the task of “rolling” a ball field. In moving the 2,000 pound roller, appellee ran it onto a curbing, causing the roller to overturn. The roller did not fall on appellee but struck his back, hip, and left leg and “like to have jerked (his left shoulder) off” as he jumped from the roller. Appellee had severely injured his left shoulder in 1974 when the same roller had overturned.

Appellee and a fellow worker, who witnessed the accident, righted the roller. Ap-pellee then went home for lunch. When the pain from his injuries did not subside but rather increased, appellee went to the office of Dr. Wayne M. Ottinger, a chiropractor, for treatment. Appellee gave notice of injury to his employer on the Monday following the accident. The employer’s first report of injury was filed with the State of Tennessee on March 28, 1977.

Appellee testified that prior to his injury on March 25, 1977, he was able to do heavy manual labor. He laid blocks, set concrete tables that weighed about 400 pounds, and did other work of a similar nature that required him to be “in pretty good shape to lift and do the kind of work we did.” He further testified that after his injury, he continued to work in an effort to keep his job. On a number of days when he would go home of an evening, he “would get down and couldn’t get up. On a lot of mornings (he) would go in to work, and couldn’t make it, and (he) would have to go home.” During this time, appellee was treated by Dr. Ottinger, Dr. Sam Huddleston, and Dr. Harold Roberts. The latter two doctors advised appellee to do light work only. When it was not forthcoming, appellee left the employ of the Town of Greeneville, in October, 1977.

Dr. Ottinger testified that on appellee’s first visit to him, which was approximately two hours after the accident with the roller, appellee was complaining of pain in the left shoulder, neck, low back, and the muscles of the right leg and that his complaints were consistent with objective findings. Dr. Ot-tinger “adjusted the subluxated vertebrae, the tight muscles in the involved area” on twelve occasions during a four week period, and was of the opinion that plaintiff had recovered from his injury.

Dr. Sam Huddleston, the orthopedic surgeon who operated on the shoulder injured by appellee in the 1974 “roller” accident and who permitted appellee to return to heavy labor, examined appellee on three occasions after his injury in 1977 — April, 1977, Sep-unber, 1977, and March, 1978. The latter two visits were for the purpose of evaluating appellee’s complaints. On the initial visit which was for treatment, Dr. Huddle-ston did not take a medical history from appellee in the conventional form and, consequently, was not told of the accident of March 25, 1977. He was told that appellee was suffering “from pain in the low back, right sciatic and right ankle pain, and weakness of grip and other widespread symptoms.”

Dr. Huddleston testified that “he didn’t see any change basically in appellee’s state in the last three or four years,” and that he did not believe “it will change other than in the normal process of aging (and that) he will get worse as he gets older.” Despite finding no change in appellee’s basic physical condition, Dr. Huddleston testified that appellee was totally disabled from doing heavy manual labor, which was a different evaluation than he placed on appellee when he operated on his shoulder after the 1974 accident. Dr. Huddleston further testified that appellee could do light work “if our system were able to get him and a job together” and that he sent appellee “to vocational rehabilitation to see if they could train him to do something else, some lighter work.” The record does not indicate what “retraining program” is available for a forty-seven year old workman, who can neither read nor write. But, in any event, because of the possibility of appellee doing light work, Dr. Huddleston testified that “a realistic evaluation (of appellee’s disability) would be 50% of the body as a whole.”

Dr. Harold Roberts testified appellee came to him in October, 1977, complaining of “right low back pain” which had gradually increased over the months since the accident in March, 1977. According to Dr. Roberts, appellee gave a history of “multiple accidents,” — none of which were of recent occurrence except the March, 1977, accident. On examination, Dr. Roberts found that appellee had muscle spasm in the right lumbar area of the spine, which he testified was due to “myofascitis of the right lumbar.” This condition was treated with high frequency diathermy and intermittent traction, leaving appellee with a “minimum amount of residual discomfort.”

Dr. Roberts filed a disability report in March, 1978, with the Social Security Administration in which he stated that appel-lee was 100% disabled from doing any manual labor. In explanation, Dr. Roberts testified:

A. He has too many joint disabilities. For instance, the disability section of the state wanted to know how much disability he had due to hip, ankle, shoulder and back injuries, and where you are going over everything from your neck to your low back, you are not going to do any manual labor. I don’t think he has done any, as far as that goes, anything other than manual labor. All these accidents that he has had were while he was, most of them were while he was doing some kind of manual labor.

Dr. Roberts was unable to state with medical certainty the disability attributable to the back injury sustained by appellee in March, 1977, or that attributable to the injuries sustained by appellant in other accidents. He did indicate, however, that ap-pellee’s previous injuries were not the cause of appellee’s back injury, nor the sole cause of appellee’s present disability.

Q. Dr. Roberts, regarding this last question of Mr. Kilday, not having seen him back at these different times that you have mentioned, you couldn’t say what his condition was at those times.
MR. KILDAY; Object to the leading. A. No, I couldn’t determine how much limitation of motion he had in his shoulders and hips and knees and ankles and one thing or another. That doesn’t have any bearing on his present complaints, his low back symptoms.

Generally, medical causation and the permanency of an injury must be established by expert medical testimony. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971). However, these issues are questions of fact and the findings of the chancellor on these issues are binding on this court on appeal if supported by any material evidence. See Harris v. Kroger Co., Inc., 567 S.W.2d 161 (1978); A. C. Lawrence Leather Co. v. Loveday, 224 Tenn. 317, 455 S.W.2d 141 (1970). In our opinion the medical testimony in this case is sufficient to support the chancellor’s finding of a causal relationship between the injury sustained by appellee on March 28, 1977, and his inability now to perform heavy manual labor. Dr. Ottinger found objective signs of a back injury within two hours of the accident. Dr. Roberts concluded that appel-lee’s physical condition precludes him from ever performing manual labor, and that ap-pellee’s previous injuries have no bearing on his present low back symptoms, which are a part of the cause of appellee’s inability to do heavy labor. This medical testimony is in line with and is buttressed by lay testimony relative to appellee’s ability to work before the accident and his inability to do heavy labor, without extreme pain, after the accident.

Decree affirmed. Costs of the appeal will be paid by appellant, the Town of Greeneville, Tennessee.

BROCK, C. J., HENRY and HARBISON, JJ., and BROOKS McLEMORE, Special Justice, concur.


author: PER CURIAM.

text:
    Floyd B. THORNAL, Petitioner, v. CARGILL, INC., et al., Respondents.
    No. B-8065.
    Supreme Court of Texas.
    June 13, 1979.
    John L. Fulbright, Beaumont, for petitioner.
    Benckenstein & Norvell, John H. Benck-enstein, Orgain, Bell & Tucker, Cleve Bach-man, Wells, Peyton, Duncan, Beard, Green-berg, Hunt & Crawford, George E. Duncan, Beaumont, for respondents.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our former per curiam opinion, set aside the former judgment, grant petitioner’s motion for rehearing, and substitute this as the court’s opinion. This is a personal injury action in which Floyd Thornal alleged injuries resulting from a fall due to negligence. After a jury trial, the court rendered judgment that plaintiff take nothing. The court of civil appeals affirmed in part and reversed and rendered in part. 573 S.W.2d 845.

We agree with the holding of the court of civil appeals that the trial court erred in failing to disregard the jury’s answer that Thornal’s supervisor was aware of the danger involved in using the ramp as a walkway. However, we are not in accord with the court’s holding that Parker v. Highland Park, 565 S.W.2d 512 (Tex.1978), retroactively controls this disposition. Even when we apply the law as it existed prior to Parker, there is no evidence that Thornal’s supervisor was aware of the hazard involved in attempting to use the ramp as a walkway under the circumstances as they existed on the occasion in question. The “no duty” doctrine, as it existed before Parker, was, therefore, not applicable.

In reversing the trial court’s judgment and rendering judgment for Thornal, the judgment of the court of civil appeals did not provide for post-judgment interest. In American Paper Stock Co. v. Howard, 528 S.W.2d 576 (Tex.1975), we stated that when the trial court’s judgment is erroneous, the judgment of the court of civil appeals must take its place and plaintiff is entitled to interest from the date of the erroneous judgment. Therefore, Thornal was entitled to interest at nine percent from the date of the trial court’s judgment.

Pursuant to Rule 483, Texas Rules of Civil Procedure, we grant the application for writ of error and, without hearing oral argument, reform the judgment of the court of civil appeals to provide for interest at nine percent from the date of the trial court’s judgment, and as reformed, the judgment is affirmed.