text:
    Bruce CHARLES, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29951.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Joseph R. Borich, III, Collet & Borich, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The appeal comes from denial of a Rule 27.26 motion to vacate a judgment of conviction for first degree robbery. The petition brought pro se attempted three assertions of ineffective assistance of counsel: (1) failure to pursue the defense of “insanity”; (2) failure to interview all of the witnesses for the State prior to trial; and, (3) failure to raise on appeal all the points alleged on the motion for new trial.

The court refused the appointment of counsel and dismissed the Rule 27.26 petition without hearing on the findings that, the record of the robbery trial and the allegations of the motion considered, the movant had stated no ground for relief.

The movant concedes on appeal that whatever merit may be shown for his third allegation, Rule 27.26 addresses only those matters which the trial court of imposition of sentence may be competent to correct. An orderly jurisdiction requires that only a court of review may determine whether the efficacy of the judgment was lost from an act or omission of counsel in the appellate process. Hemphill v. State, 566 S.W.2d 200, 208[15, 16] (Mo. banc 1978). The third contention of the motion, therefore, does not state a cause of action for post-conviction relief under Rule 27.26.

Rule 27.26(h) provides the court shall appoint counsel for an indigent petitioner whose pleading presents questions of law or issues of fact. To the extent that the dismissal of the petition by the trial court rests on failure of a sufficient pleading, the order is clearly erroneous. The formal Motion to Vacate Judgment and Sentence [paragraph 8] directs that the grounds for relief shall be stated concisely. The petitioner complied by specific reference to Appendix A incorporated as a pleading. As it bears on the first allegation of incompetency of counsel, the appended narrative alleges:

Prior to trial Movant and his relatives advised the aforesaid attorney that Mov-ant had been undergoing psychiatric care, and suggested that mental incompetency might be the proper defense, and did not make the penetrating inquiry that it deserved. That is to say, said counsel totally ignored the foregoing information.

This allegation, although not given in the most ample detail, sufficiently pleads a fact, which if true — and not otherwise refuted by the files and records in the case— entitles the movant to the relief he seeks. Milentz v. State, 545 S.W.2d 688, 690[1, 2] (Mo.App.1977).

The findings of the court conclude, however, that movant was not entitled to a hearing for the additional reason that, as the record discloses, at the trial movant contended he did not commit the crime and so could not, with logic, contend he was without mental capacity for the crime — and that the defense of mental disease or defect excluding responsibility was, in any event, inconsistent with the defense of alibi submitted to the jury under the evidence and so was unavailable to the defendant as a contemporaneous submission.

A defendant in a criminal cause is presumed to be innocent until proved guilty beyond a reasonable doubt. The burden for every element of the proof rests on the State. The law secures the accused from unwilling testimony and imposes no penalty on his silence. He may not be required to barter a plea that he lacked mental capacity to commit the conduct alleged against him for an admission that he did the act. Nor, contrary to the assumption of the trial court, does alibi contradict innocence or the lack of capacity for criminal conduct. State v. Lora, 305 S.W.2d 452, 455[5, 6] (Mo.1957). The proof of one does not exclude the proof of the other. Alibi merely denies that the accused was present at the place and time of the offense. The burden to prove that essential element rests, and remains affirmatively, on the prosecution. State v. Reece, 324 S.W.2d 656, 661[11,13] (Mo.1959); Committee Comments on MAI-CR, Alibi, pp. 1 and 2. It is the explicit provision of § 552.030.2, moreover, that a plea of lack of mental disease or defect excluding responsibility “shall not deprive the defendant of other defenses.” State v. Newman, 568 S.W.2d 276, 282 (Mo.App.1978). The trial court was clearly erroneous in the judgment that the first allegation of ineffective assistance of counsel was precluded by an election of defense.

The trial court improperly denied movant appellant appointment of counsel and hearing on the first allegation of the petition. We need not determine whether the second contention that counsel was ineffective by failure to interview all of the prosecution witnesses prior to trial — suffices as a pleading for post-conviction relief. Rule 27.26(h) contemplates that the counsel appointed will amend the motion to plead more perfectly other allegations presently insufficient and to include other claims should conference with the movant disclose any. Noble v. State, 477 S.W.2d 417, 420 (Mo.1972).

The judgment is reversed and the cause remanded.

All concur.


source: Caselaw Access Project

author: TURNAGE, Judge.

license: Public Domain

text:
    In the Matter of the alleged Incompetency of Edith ARMSTRONG.
    No. KCD 29960.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      Theodore M. Kranitz, St. Joseph, for appellant.
    Alden S. Lance, Savannah, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   TURNAGE, Judge.

Edith Armstrong was found to be incompetent and incapable of managing her own affairs by the circuit court of Andrew County following a trial without a jury. Mrs. Armstrong, on this appeal, contends the judgment of incompetency is not based on substantial evidence. Reversed.

Edith Armstrong is a 78 year old widow without children whose husband of 50 years died in April, 1976. In the summer of 1977, Mrs. Armstrong fell and broke her hip. She was taken to Methodist Medical Center in St. Joseph for treatment where she remained at the time of trial in November, 1977. After Mrs. Armstrong broke her hip she conducted her business through a friend, Norman Berry, who would collect Mrs. Armstrong’s bills, write checks for their payment, and take the bills and checks to Mrs. Armstrong. When presented with the bills and checks, she would compare them and if all appeared to be in order, she would sign the checks. Mr. Berry had no authority to sign checks on Mrs. Armstrong’s account.

This bill paying arrangement worked well, but Mrs. Armstrong’s banker became concerned when she made a series of changes as to the joint tenant on her savings account. In June and July of 1977, three different names were added as joint tenants with Mrs. Armstrong to her savings account. When one was added, the prior name was removed. Just four days before the hearing on the petition, the last named joint tenant was removed and a fourth name was added. This series of events seems to have precipitated the filing of the petition alleging incompetency.

The incompetency petition was filed in probate court by Alden Lance, an attorney in Savannah. After a hearing, Mrs. Armstrong was declared incompetent by the probate judge, but on motion of Mrs. Armstrong’s attorney this judgment was set aside. Subsequently, a motion to disqualify the probate judge was filed and the second hearing was held in circuit court.

Prior to the hearing in circuit court, Lance was joined as a petitioner by P. V. Haenni, presiding judge of the Andrew County Court. The petition stated Mrs. Armstrong was incapable by reason of senility or other incapacity of managing her property and caring for herself. At the hearing in circuit court, petitioners adduced evidence which showed Mrs. Armstrong’s age and physical status as heretofore set out and that she was physically unable to leave the hospital, being confined to a wheelchair.

Five lay witnesses testified for petitioners in addition to Dr. Warren Baker, one of her physicians. The last witness was James Pawlowski, a counselor for the Missouri Vocational Rehabilitation Department. The lay witnesses largely testified to Mrs. Armstrong’s physical disability. In some instances the witnesses were requested to compare Mrs. Armstrong with other unnamed persons they might have seen who were, in the witness’s opinion, incompetent. Based on this comparison they were requested to give an opinion as to Mrs. Armstrong’s competency. Some of the witnesses stated under these circumstances they were of the opinion Mrs. Armstrong was incompetent. In the case of one witness, Mrs. Haenni, when asked if she could state any fact on which her conclusion of incompetency was based, stated she could not.

Dr. Baker likewise stated his opinion that Mrs. Armstrong was incompetent and incapable of managing her own affairs. However, the statement of facts on which his opinion was based related principally to her physical disability with some mention of her forgetfulness. Dr. Baker summed up his testimony in response to a question from the court as follows: “Truthfully this lady is not a remarkable patient mentally, actually. She is no worse than many people her age. Most of the time she is fairly clear, but there are times when she doesn’t know for sure what the questions are and can’t come up with the right answer. I have to feel like she is impaired somewhat mentally.” Dr. Baker also stated Mrs. Armstrong and was not suffering from any mental illness, senile sclerosis or senile dementia.

Mr. Pawlowski stated he found no disturbance in Mrs. Armstrong’s train of thought. He stated she was able to speak clearly and to communicate. He stated that in laymen’s terms she did have some confusion and memory disturbance. He also stated she was not hallucinating and there were no illusions or disturbances in her perception.

The court recessed the hearing and then heard the testimony of Mrs. Armstrong in St. Joseph. In her testimony Mrs. Armstrong proved to be hard of hearing but her answers were clear and appropriate. She knew she had checking and savings accounts, the approximate balance in each, and that she owned a home. She was able to testify as to her marriage, the date of her husband’s death and her present status. She also stated no one else had authority to sign checks on her account and detailed the way she paid her bills with the help of Norman Berry. When asked about a transfer of $3,000 from her savings account to the checking account which already had a balance of about $6,000, she stated that after she broke her hip she made the transfer to be sure there was enough in the checking account to pay her medical bills because she did not know how much they would total. When the court inquired as to the number of changes of joint tenants on her savings account, she stated these had been done on her own without the suggestion of anyone else. She stated she had made a will about a year before and understood that by putting a joint tenant on a checking or savings account the people named in the will would not receive that property. She also stated that by the time she was finished there probably would not be too much left anyway. Mrs. Armstrong expressed satisfaction with the way Norman Berry and other close friends, the Rainalters, had been helping her take care of her affairs and stated she did not want that changed.

The court entered judgment finding Mrs. Armstrong to be incapable, by reason of senility, of managing her affairs and caring for herself and appointed a guardian for her person and estate. The court also allowed Mr. Lance $250 for his services.

After a notice of appeal and appeal bond had been filed, the court entered findings of fact. The court found Mrs. Armstrong to be “a very feeble, emaciated, 78 year old widow . . . she cannot walk . and falls asleep while under direct examination.” The court stated it relied upon her doctor, “who testified she may never walk again, or never be able to live alone, and is not progressing very well in recovering from her broken hip. According to the doctor she is not oriented in time, she is confused, does not always know where she is and ‘needs help’.” The court further found from Mr. Pawlowski “that the incompetent is not oriented as to time and did not know where she was. Both professional witnesses testified that in their opinion she would not improve and she was incompetent to handle her affairs.” It should be noted there is no mention in the transcript that Mrs. Armstrong fell asleep during direct examination.

Mrs. Armstrong presents a number of arguments as to why the judgment should be reversed but because the judgment is not supported by substantial evidence only the sufficiency of the evidence need be discussed.

The test by which the evidence is to be measured as to its sufficiency is set out in In Re Delany, 226 S.W.2d 366, 373[6] (Mo.App.1950) as follows: “[f]or one to be held of unsound mind so as to be disqualified from the control of his own property, there must be such mental impairment as to render him incapable of understanding and acting with discretion in the ordinary affairs of life. . . . and there is no basis for an adjudication that one is of unsound mind and incapable of managing his affairs unless it is shown that his powers of reasoning and comprehension have been so far destroyed or reduced by mental weakness resulting from one cause or another that he is incapable of knowing and appreciating the nature and consequences of his acts in respect to his own conduct and the management of his property. Harrelson v. Flournoy, 229 Mo.App. 582, 78 S.W.2d 895.”

While the definition of unsound mind contained in Delany was rejected in Matter of Brown, 527 S.W.2d 395 (Mo.App.1975) the test to be applied to determine the ability of a person to manage his own affairs as quoted above was not mentioned. The above quoted definitions from Delany have long been followed in Missouri and this court sees no reason why such definitions should not continue to be followed.

Applying the standards set out in Delany to the evidence in this case, it can only be concluded that the evidence is insufficient to sustain a finding of Mrs. Armstrong’s incompetency. No effort was made by those who sought to prove her incompetency to show Mrs. Armstrong’s incapacity in relation to her business affairs. The most any of the witnesses who supported the petitioner stated was an occasional confusion or loss of memory. In contrast, Mrs. Armstrong’s evidence showed she was handling her business affairs adequately with the assistance of friends. There was no evidence she had lost any money due to mismanagement or that she had failed or neglected to conserve her property. In fact, her testimony revealed a lady who knew the nature and extent of her affairs and who had a firm grip on her money.

It has been recognized in this State that “there may exist impairment of the mind, confusion, and lack of clear understanding of reason, yet if there exists sufficient reason and clearness of mind for an understanding of the nature of his act or acts in the ordinary transactions of life” there could be a finding the person was of sound mind and capable of managing his own affairs. In Re Bearden, 86 S.W.2d 585, 594[12, 13] (Mo.App.1935). Bearden also recognized that the forgetfulness of old age should not be sufficient on which to base a finding of incompetency. Mere forgetfulness has also been held insufficient to show that a person is unable to manage his own affairs in other jurisdictions. Rhoads v. Rhoads, 29 Ohio App. 449, 163 N.E. 724, 726[6] (1927); In Re Baldridge, 122 Cal.App.2d 752, 266 P.2d 103, 105 (1954). Petitioner Lance concedes some mental, as contrasted with physical, incapacity must appear to justify the appointment of a guardian. See 33 Mo.L.Rev. 1 (1968). It is apparent the evidence of Mrs. Armstrong’s forgetfulness and confusion, not supported by any evidence to show she was incapable of knowing the nature and consequence of her conduct in the management of her property, is insufficient to support a finding that she is incompetent to manage her own affairs.

One other reason should be pointed out. None of the witnesses testified as to specific facts, except those noted with respect to loss of memory, on which they based their opinion of incompetency. Even the witnesses who detailed facts showing a loss of memory did not do so in relation to expressing an opinion of incompetency. It is well settled that an opinion of a witness, including a medical expert witness, relating to incompetency must be based on facts observed and detailed by the witness before the opinion can constitute substantial evidence. Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381, 385[1, 2] (1943). Thus, even though the record in this ease contains a number of opinions that Mrs. Armstrong is incompetent and incapable of managing her own affairs, such opinion evidence does not constitute substantial evidence because the facts on which those opinions were based were not given by the witness.

The judgment is reversed.

All concur.


author: SHANGLER, Presiding Judge.

text:
    Melba J. ROWE, Appellant, v. Kenneth George MILLER, Respondent.
    No. KCD 29964.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      William D. Piedimonte, Joe P. Willerth, Lawrence E. Davis, Independence, for appellant.
    George T. Sweitzer, Jr., Harrisonville, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J, and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

This appeal comes from an order which denied a motion to set aside the dismissal of an action to register a foreign judgment.

The cause came up for trial on March 7, 1977, and, on the failure of the plaintiff or her counsel to appear, was dismissed for want of prosecution. On November 18, 1977, more than eight months after entry of judgment, the plaintiff brought a “motion to set aside dismissal for want of prosecution.” The action was supported by affidavit of counsel which contended a meritorious cause of action and the diligence of the plaintiff. The motion was denied by order of the trial court and appeal followed.

The plaintiff appears not to doubt that the judgment of dismissal became final thirty days after rendition on March 7, 1977, and that the procedures for appeal from that judgment have lapsed but attempts to avoid that effect by a simulation of review from the order on the motion.

A trial court retains control over its judgments for only thirty days, after which [in the absence of a motion for new trial] they become final and beyond the power of the court to alter or vacate except by a direct proceeding for that purpose. Rule 75.01; Ratermann v. Ratermann, 485 S.W.2d 80, 84[2] (Mo.1972); Wiseman v. Lehmann, 464 S.W.2d 539, 543[7, 8] (Mo.App.1971). The motion to set aside the dismissal, whatever the guise, addressed itself to the power of the court of rendition to vacate the judgment, so that when that power lapsed the efficacy of the motion also lapsed.

Accordingly, the motion to set aside the dismissal, brought some eight months after the entry of judgment, was not an independent proceeding which gave rise to a right of appeal. The proper review was from the judgment of dismissal, but that was no longer available to the plaintiff under any procedure.

The judgment is affirmed.

Ail concur.


author: PRITCHARD, Judge.

text:
    Andra J. DURBIN (now Parker), Respondent, v. Darrell R. DURBIN, Appellant.
    No. KCD 30013.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.

      P. Wayne Kuhlman, Liberty, for appellant.
    Thomas J. Cox, Jr. and Charles C. Curry, Kansas City, for respondent.
    Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.
   PRITCHARD, Judge.

This is an appeal from the trial court’s denial of a motion to modify a decree of dissolution, which was entered July 23, 1975, as to child custody. The first point contends error in the court’s failure to find respondent in contempt of court, upon appellant’s motion therefor, upon the allegation that respondent demonstrated a willful course of dealings with him, calculated to interfere with his visitation rights. The second point is that the court erred in sustaining respondent’s application to remove the child from the state of Missouri, because, as contended, there was no showing of substantial and continued change in circumstances requiring the move, which was not in the child’s best interest. The third point is that the court erred in allowing respondent to retain custody because appellant showed a substantial and continuing change of circumstances requiring the change: a. Respondent’s interference with appellant’s visitation rights; b. her failure to obtain health care treatment for the child, and interfering with the doctor’s treatment; her living with another man prior to her marriage to him; her failure to accept child support payments from appellant; his excellent relationship with the child and his stable home situation, “all show that it would be in the best interest of the minor child that the custody be changed and warrant that change of custody”; c. that the court’s decision was contrary to the overwhelming weight of the evidence as to the best interest of the child. The fourth and last point is that the court abused its discretion in failing to reopen the case for further testimony of respondent’s brother as to her home life and treatment of the child while in Oregon, “which evidence was unavailable to the petitioner until twenty-eight days following the court’s order.”

The trial court did not err in refusing to find respondent in contempt. The evidence concerning the visitation of the child by appellant is conflicting, and the court had the right to believe respondent’s version which was: Appellant exercised his visitation rights up until two weeks before respondent and her second husband moved to Oregon. After the dissolution she moved from Belton to Peculiar, Missouri, and gave him her post office box number and directions to her home. He, on the other hand, had never told her where he lived or what his telephone number was, preferring only that she contact him through his mother. He did not object when he was told that the child was being sent to Oregon to visit his maternal grandparents. It was her desire that appellant see more of the child, and once suggested that he keep the child for a week. Respondent arranged for appellant to visit the child during the week while he was with a baby-sitter, but appellant did so only for a short time. His mother testified that he had the child at least one week each month, and appellant’s present wife testified that he had him about once every three weeks. Appellant acknowledged that he generally had the child every other weekend, with some extra times. When the child returned from Oregon, appellant resumed visiting him. There were a couple of times when respondent asked that visitation be postponed, these being after the child’s surgeries (for correction of a cleft palate), when he was on a special diet and was wearing arm restraints. Respondent twice told the court that she had tried to arrange for two month visitation each year, feeling that it would be better for the child, but appellant was not agreeable to that arrangement. These facts are woefully short of showing that respondent willfully violated the court’s decree of visitation rights to appellant to justify imposing the harsh penalty of contempt of court.

The question remaining is whether respondent was guilty of contempt of court in removing the child to the state of Oregon, where she went with her second husband, admittedly without telling appellant and without securing the permission of the court. In Dupree v. Dupree, 357 S.W.2d 241 (Mo.App.1962), the mother moved the court for permission to remove the child to California, which was denied. The court said, page 243[4], “Ordinarily the court will not permit the removal of a child to another jurisdiction because of the difficulty of enforcing subsequent orders deemed necessary for a child’s welfare, but where it clearly appears that such removal is for the best interests of the child, it is readily granted. (Citing eases.)” It was noted in Middleton v. Tozer, 259 S.W.2d 80 (Mo.App.1953), that statements such as the Dupree quotation deal with the policy of the law where permission to remove a child is requested, and with the power of the court to authorize removal. It was held that there is nothing in the law to compel one who is given custody permanently to reside in this state; that the award of custody may result in the removal of the child beyond the limits of the state in any case; and, at page 87, “[Wjhere the decree remains silent as to removal of the child from the jurisdiction of the court and does not specifically prohibit the child’s removal; the parent to whom the child has been awarded may lawfully take it into another state. (Citing cases from other jurisdictions.)” See also 24 Am. Jur.2d, Divorce and Separation, § 797, p. 905; 27B C.J.S. Divorce § 313, p. 487. Point I is overruled.

As to Point II, raising the propriety of the court’s order in these present proceedings permitting respondent to remove the child to Oregon, the facts are these: The child, a male, was born with a cleft lip and a bilateral cleft palate, and had been under the care of a plastic surgeon from shortly after his birth for the purpose of correcting the defect. As of the date of hearing, he had undergone plastic surgery four times. Respondent moved with her second husband to Seaside, Oregon, taking the child with her, not giving notice thereof to appellant. At the time of this hearing, respondent testified that the child was in good health. She had taken him to two doctors in Seaside for the cleft palate situation, and one surgeon has stated that his progress was satisfactory. She had not arranged for the child to receive speech therapy as suggested by the original attending physician in Kansas City. Respondent had recently divorced her second husband, with whom she had moved to Oregon so he might find better employment. She was staying there because of being near her parents. She has gainful employment in Seaside, and has a comfortable home. The record shows that the child continues to receive medical treatment. The trial court found: “The child has just turned three years of age; the mother is rearing the child in a comfortable home and the proper environment and to extract the child from this environment and place its care and custody in the father at this early age in the Court’s judgment would be very disruptive to its best interests.” Although appellant’s evidence showed that he was remarried and had a stable home, that fact does not override the consideration of the best interests of the child, here one of tender years who is in need of further corrective surgical treatment, and who is getting along well with his mother, who, all else being equal, should be given the primary duty of caring for the child. Dupree v. Dupree, supra; Simmons v. Trenter, 327 S.W.2d 936 (Mo.App.1959); Markham v. Markham, 429 S.W.2d 320 (Mo.App.1968). The presumptions are with the trial court’s order, which should not be lightly disturbed. Kanady v. Kanady, 527 S.W.2d 704 (Mo.App.1975). Point II is overruled.

What has been said as to Point II disposes of appellant’s Point III, which is to the effect that he, showing a change of circumstances as to his ability to take care of the child, is entitled to custody. No conduct was in evidence, and of course was not found by the court, which should deprive respondent of her initial grant of custody. There is no showing that the fact that respondent lived with her second husband before she married him and moved to Oregon was in any way detrimental to the child. The fact of failure to accept child support payments from appellant is likewise not shown to have injured the child, and this matter was disposed by a later stipulation of the parties, November, 1976, dispensing with child support payments. The welfare of the child is the prime consideration, and the evidence shows that his custody should remain with respondent. Hinson v. Hinson, 518 S.W.2d 330 (Mo.App.1975). Point III is overruled. There is no firm belief that the trial court’s decree is wrong, and it will therefore not be disturbed. Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).

The motion to reopen the ease to consider additional evidence is considered as a mere suggestion that the court exercise its discretion to set aside the judgment within the 30 day period specified in Rule 75.01. State ex rel. Campbell v. Anderson, 536 S.W.2d 200, 202 (Mo.App.1976). Here, the affidavit filed in support of the motion to reopen goes merely to contradicting respondent’s testimony, and the overruling of the same was within the trial court’s discretion.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    Barbara HANSON, Appellant, v. CONTINENTAL INSURANCE COMPANY, Respondent.
    No. KCD30028.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Max W. Foust, G. Spencer Miller, Morris & Foust, Kansas City, for appellant.
    Kenneth 0. Smith, Knipmeyer, McCann, Fish & Smith, Kansas City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Plaintiff sues to recover accidental death benefits under a group policy issued by defendant, under which plaintiff’s deceased husband, Harlan M. Hanson, was one of those insured. Plaintiff also seeks penalties for vexatious refusal to pay. Defendant defends on the basis of a clause in its policy excluding injuries incurred while flying in a military aircraft under specified circumstances. Both parties moved for summary judgment. The trial court entered judgment for defendant, from which plaintiff appeals.

The facts are stipulated. Hanson was a member of a National Guard Unit in North Dakota. On July 14, 1973, he was present at Logan Field in Billings, Montana, where he was permitted to become a passenger in a helicopter owned by the United States and in the possession of the Montana National Guard. The helicopter in question was being flown by Keith Iverson, a member of the Montana National Guard, on an approved flight performing equivalent training and he had obtained approval for the use of the helicopter from the proper authorities. However, Iverson did not file a flight plan, although that was required under Standard Operating Procedure of the Montana Army National Guard and the applicable Army Regulation.

During the course of the flight, Iverson engaged in low level or “nap-of-the-earth flying.” While so engaged, the helicopter came in contact with a power line causing demolition of the aircraft and fatal injuries to Hanson. Army Regulations provided that when Army aircraft was engaged in nap-of-the-earth flying or similar hazardous training flights, “passengers should be limited to those personnel with a specific need to participate.” At the time of the fatal flight in question, Hanson was not on duty and he had no specific need to participate in nap-of-the-earth flying.

Defendant’s policy contained an exclusion clause as follows: “This policy does not cover loss caused by or resulting from any one or more of the following: * * * Travel or flight in any vehicle or device for aerial navagation, * * * while being operated by or for or under the direction of any military authority * * The debate in this case turns upon whether the fatal flight was “by or for or under” direction of military authority. Plaintiff says it was not but can cite no insurance case or other authority for that contention. On the other hand, defendant has cited no such authority to the contrary and independent research has disclosed no authority construing a similar policy provision.

In the apparent absence of any direct authority on this point, plaintiff seeks to draw an analogy to the cases where an employee makes a serious deviation for his own personal purpose from a route which he is supposed to follow in carrying out his employer’s business. Under those circumstances, the employee may be said to have gone beyond the course and scope of his employment. Plaintiff attempts to argue by analogy that Iverson went beyond the scope of Army authorization by reason of his violation of the applicable Standard Operating Procedure and Army Regulations.

To the extent that the employer-employee cases are pertinent, the case closest in point is Linam v. Murphy, 360 Mo. 1140, 232 S.W.2d 937 (1950). In that case an airplane flying instructor took control of a dual control training plane from the student pilot and the instructor then engaged in a frolic of his own and “buzzed” a beach, dam, bridge and town for his personal enjoyment. During this episode the plane crashed, and the student sustained injuries for which he claimed damages. The court held the employer to be responsible for the instructor’s acts even though the instructor may have been violating standing instructions. In this respect the Supreme Court stated at l.c. 942:

“Nor does it suffice to say that Cooke may have been violating defendants’ instructions. We will assume that defendants had instructed Cooke not to ‘buzz’ objects when he had the controls of a training plane with a student in the other seat. * * * Violation of the master’s instructions does not relieve the master from liability for the negligent acts of the servant done within the scope of the latter’s employment.”

See also the many cases collected in Missouri Digest, Master & Servant, No. 305.

By analogy to Linam, as well as on general principle, we hold that the failure of Iverson to follow strictly the pertinent rules and regulations did not prevent the flight from being an operation “by or for or under” the direction of military authority. This case therefore falls within the exclusion clause upon which defendant relies.

Plaintiff argues that this exclusion clause is at best ambiguous. However, we agree with the following ruling by the trial court: “The quoted policy language employs words in common usage, none of which requires definition or elaboration. * * * the language of the exclusion clause is plain and unambiguous and as such, it must be accorded its own meaning in the ordinary and popular sense.” State Farm Mutual Auto. Ins. Co. v. Thomas, 549 S.W.2d 616 (Mo.App.1977); Galemore v. Haley, 471 S.W.2d 518 (Mo.App.1971).

Inasmuch as defendant was justified in its refusal to pay, that refusal a fortiori could not be vexatious.

Affirmed.

All concur.


author: SWOFFORD, Chief Judge.

text:
    Ex parte Lori Diane RAY and Steven Ray, Arthur W. Van Meter and Lorene Van Meter, Larry Gene Ray.
    No. KCD 30356.
    Missouri Court of Appeals, Kansas City District.
    Oct. 30, 1978.
    Theodore M. Kranitz, Kranitz & Kranitz, St. Joseph, for petitioner.
    Thomas R. Summers, Shoemaker, Summers & Fenner, St. Joseph, for respondents.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   SWOFFORD, Chief Judge.

This proceeding was instituted in this Court on July 27, 1978 by the filing of a petition for a writ of habeas corpus by Larry Gene Ray, the natural father of Lori Diane Ray, 9 years of age, and Larry Steven Ray, 8 years of age, who, he alleged, were being unlawfully restrained of their liberty by their maternal grandparents, Arthur W. Van Meter and Lorene Van Meter. The children's natural mother, Barbara Kay Ray, had been killed in an automobile accident on May 31, 1978. A writ of habeas corpus was issued by this Court on July 27, 1978, the five-day notice rule and the production of the bodies of the children were waived, and the Van Meters were ordered to make return to said Writ on or before August 7, 1978 and to attach thereto a true and authenticated copy of the transcript of all previous proceedings had on July 26, 1978 in a habeas corpus proceeding in the Circuit Court of Buchanan County. The return was filed on August 7, 1978 and the petitioner filed a motion to strike the return together with his traverse to such return. It clearly appeared from these pleadings that there were disputed issues of fact, so on August 17, 1978, this Court appointed the Honorable J. Donald Murphy as Master, pursuant to Rule 68.03, to hold an eviden-tiary hearing on the issues thus presented. The Master filed his oath as required by law and conducted such evidentiary hearing on August 23, 1978, which was recorded. This hearing included an in chambers interview with each of the two children involved separately with counsel and a reporter present.

On September 7, 1978, the Master filed his Report containing his findings of fact and conclusions of law and recommendations as provided by Rule 68.03, the same being in substantial part as follows:

“REPORT OF MASTER

In this original habeas corpus proceeding petitioner seeks custody of his two minor children presently in the de facto custody of respondents. By order of the Missouri Court of Appeals, Kansas City District, dated 17 August, 1978, the undersigned was appointed Master to take and report evidence and make findings of fact and conclusions of law. Pursuant to such order a hearing was held on August 23, 1978, at which witnesses were heard and exhibits introduced. By stipulation of counsel the transcript of the testimony before the Honorable Frank D. Connett, Jr., Judge, Fifth Judicial Circuit, on July 26, 1978, was received in evidence. The testimony at the August 23 hearing before the Master was recorded but not transcribed.

Respondents are the maternal grandparents of the minor children and assumed actual custody of the children upon the death of their mother on May 31, 1978. The mother had been awarded custody of the children at the time the parents were divorced in 1974. Respondents in their return to the writ of habeas corpus assert that petitioner is not a fit, competent or suitable person to have custody of the children because (a) he is a ‘regular user of marijuana and has stolen items from merchants’; (b) he has ‘an unstable life-style characterized by five marriages and currently being married to a teenager’; (c) he has ‘exhibited cruelty’ toward the children; (d) and he ‘lacks the maturity to care for the children in that he is subject to violent outbursts of temper’.

Petitioner concedes that respondents are fit, competent and able to provide a suitable home for the minor children.

Findings of Fact

1. Petitioner Larry Gene Ray is the natural father of Lori Diane Ray and Larry Steven Ray, infants of the ages of 9 and 8 years respectively.

2. Respondents, Arthur Warren Van Meter, aged 56, and Lorene Van Meter, aged 56, are the maternal grandparents of the children.

3. Barbara Van Meter Ray, natural mother of the children, in whose custody they were pursuant to a decree of dissolution of marriage, died on 31 May, 1978 as a result of an automobile accident.

4. Upon the death of their daughter, respondents, without benefit of any court order, took the children into actual custody, and have so kept them against the demand and without the consent of petitioner.

5. Petitioner was married to one Lori Palmer, aged 19, on 12 February, 1978. Within five days after the death of his former wife, he embarked upon the purchase of a suitable home for his family, and on 14 July, 1978 closed the transaction. On Friday, 19 July, petitioner telephoned respondents to arrange transfer of actual custody, and was told by the respondents that they had decided to keep the children.

6. Petitioner now has an adequate home in which to raise his children. His present wife’s character and reputation have not been questioned. Petitioner is a self-employed carpet layer, and earns sufficient money to feed, clothe, shelter, and educate his children.

7. Petitioner is not now a regular user of marijuana and since at least February, 1978 has not been a user at all. He admits that during his marriage to Barbara Van Meter Ray, and continuing until shortly before his present marriage to Lori Palmer Ray, he used marijuana on a frequency of ‘probably once a week’, but never in the presence of his children. Both Lori Diane and Larry Steven testified in chambers that they never observed their father smoke anything other than ready-made cigarettes taken from a pack. In any event, neither petitioner nor his wife presently have any connection with marijuana use.

8. There is insufficient credible evidence to sustain the allegation that petitioner has stolen items of merchandise. Jacki Row-lett, who was twice married to and divorced from petitioner, testified that sometime between the year 1975 and the month of October, 1977 while she was married to petitioner, he ‘occasionally’ stole ‘small items that would fit in his pocket’ such as razor blades and Kool-Aide, from grocery stores. She also testified that petitioner told her about other unspecified items he had stolen. There is no corroboration of her testimony in the record. Petitioner denied such stealing. The testimony of the witness Rowlett is so indefinite as to time, place and circumstance as to be entitled to little credence in the face of the categorical denial by petitioner.

9. Petitioner was married four times previously to three different women (twice to the witness Jacki Rowlett). Petitioner’s present circumstances show him to be industrious, a good provider, neither a drinker (‘perhaps one drink a year’) nor a smoker (‘maybe one or two cigarettes a week’). His present wife is manager of the display department at Montgomery Ward in St. Joseph. She is neither a drinker, nor a smoker, and appears to be sufficiently mature and competent to care for the children in the family home. The present home and life-style appear to be stable, and the evidence produced no presently existing conditions to the contrary.

10. The evidence does not support the allegation that petitioner has exhibited cruelty toward his children. The witness Lorene Van Meter, the maternal grandmother, testified that on one occasion after petitioner had been playing with the children she saw red marks on Steven’s throat and was told by Steven that petitioner had had him on the ground with a ball bat across his throat. The witness Gyneth Snyder, babysitter, testified that, while looking through a closed window she had seen petitioner on occasion, while at play with the children, strike Steven on the arms, head and shoulders with his fist; that Steven would come in to the house crying and sometimes later complained of headaches. She never saw petitioner strike Lori but observed him ‘play rough’ with her when they were ‘wrestling and playing around’. The children confirm the incident of the baseball bat, but from their account it appears to have been over-enthusiastic roughhouse while at play and not an act of cruelty to children. The testimony is vague and inconclusive and does not establish by substantial evidence any pattern of cruelty to children on the part of petitioner. On the contrary, the children themselves, individually and separately, testifying in chambers, expressed love for their father, no fear of him or of living with him, and indicated that he has never exhibited cruelty or imposed excessively severe discipline on them.

11. The allegation that petitioner Tacks the maturity to care for the children, in that he is subject to violent outbursts of temper’, is largely unsupported by credible evidence and respondents have failed to carry their burden of proof on the issue. Jacki Rowlett testified that petitioner had a very short temper, got mad easily and ‘threw things’ while on the job. She said she accompanied petitioner on his job as carpet layer ‘occasionally’; that what he threw was usually ‘some kind of carpet tool’; that she could not remember him throwing things at home. The witness Kerry Mack, a friend of Barbara Ray, the deceased mother, testified she witnessed a scene in which petitioner in a fit of anger threw a sack of groceries against the wall, in the presence of Barbara and the children. Respondent conceded he had a temper and becomes angry but denied throwing things and specifically that he threw the sack of groceries (which he said contained four rolls of toilet paper and a can of tuna). He gave a somewhat different version of the incident. The children testified that they had never seen any violent display of temper by their father in their presence either toward them or toward their late mother. Assuming that ‘lack of maturity’ is a valid legal ground for denying petitioner custody of his children [See Conclusions of Law, paragraph 6 that it is not] the testimony about petitioner’s ‘violent temper’, in the opinion of the Master, does not establish any lack of maturity (whatever that means) by sufficiently clear and cogent evidence, and it follows that there is a failure of proof on the point.

12. On the whole case, no presently existing circumstance has been shown in the evidence to support depriving petitioner of custody of his children. Respondents have not carried their burden of proof.

Conclusions of Law

1. This cause is properly before the Court in the exercise of its original jurisdiction. Mo.Const., Art. V, § 4, Ex parte McCarter, 434 S.W.2d 14 (Mo.App.1968).

2. The writ of habeas corpus is properly invoked where as here, a natural parent seeks to obtain custody of his children who are held by grandparents or other strangers without court order. 39 Am.Jur.2d 179, 181, 183-184.

3. The issue here is not which of the contenders for custody would provide the better home. That question is wholly irrelevant to these proceedings. Petitioner has a primary right to custody of his children as against all the world. State ex rel. White v. Swink, 241 Mo.App. 1048, 256 S.W.2d 825, 829 (1953); Cox v. Carapella, 246 S.W.2d 513, 514 (Mo.App.1952); McDevitt v. Morrison, 180 S.W.2d 608, 611 (Mo.App.1944); State ex rel. Crockett v. Ellison, 271 Mo. 416, 196 S.W. 1140 (Mo. banc 1917). He is clothed with a presumption of law that the best interests of his children are served in his custody as surviving parent, absent a showing of some special and extraordinary reason why he should not have custody. Weir v. Marley, 99 Mo. 484, 12 S.W. 798, 800 (Mo.1890); State ex rel. Crockett v. Ellison, supra, l.c. 1142; Cox v. Carapella, supra; Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949, 959 (Mo.App.1945).

4. Respondents do not hold Lori Diane Ray and Larry Steven Ray by virtue of any adoption decree or other court judgment or order. The burden of proof of petitioner’s unfitness is upon respondents. Williams v. Williams, 240 Mo.App. 336, 205 S.W.2d 949 (Mo.App.1947); Cox v. Carapella, supra.

5. That petitioner has had a varied, checkered and unstable marital history is insufficient to deprive him of custody of his children. Cox v. Carapella, supra.

6. The only test by which determination can be made is whether petitioner has forfeited his right to custody for any of the reasons set out in Sections 211.031 or 211.-441 RSMo 1969; In re Shepler, 361 S.W.2d 354, 360 (Mo.App.1962); Cox v. Carapella, supra; and the determination must be made with respect to present, existing conditions, with evidence of past conditions being material only to the extent that they clarify and cast light on existing conditions. Ex parte De Castro, supra, l.c. 190 S.W.2d 959; Cox v. Carapella, supra, l.c. 517. As a matter of law, no condition set out in Sections 211.031 or 211.441 RSMo 1969 has been shown in the evidence: Petitioner has neither neglected nor refused to provide proper support, education, medical care, or other necessities; the children are not otherwise without proper care or support; the behavior, environment, or associations of the children neither are nor will be injurious to their welfare or the welfare of others; and the children have not violated any law.

7. That petitioner heretofore used marijuana but no longer does so does not constitute a present, existing condition warranting deprivation of custody. Downing v. Downing, 537 S.W.2d 840, 844 (Mo.App.1976).

8. Respondents have not, as a matter of law, sustained their burden of proof. Their allegations against petitioner, to the extent that they are otherwise relevant, do not rise to the challenge of Sections 211.031 and 211.441 RSMo 1969 and cannot be sustained. A habeas corpus proceeding cannot be converted into a neglect proceeding, to oust the juvenile court of its exclusive statutory jurisdiction. State ex rel. White v. Swink, supra; In the Interest of Dimmitt, 560 S.W.2d 368, 370-372 (Mo.App.1977).”

Thereafter and on September 25, 1978, the respondents Van Meter filed their exceptions to the report of the Master, which exceptions were overruled by the Master on September 25, 1978, all as provided by Rule 68.03. The parties hereto having previously fully briefed this case, the same was submitted to and orally argued before this Court en banc on October 3, 1978.

In this state of the record, the Master’s Report is to be accorded the weight and deference which would be given to a court-tried case by a reviewing court. In the Matter of W _K _M _, 537 S.W.2d 183, 186[5] (Mo.App.1976).

The record in this case having been fully reviewed and the briefs studied, it is the judgment of this Court that the Master’s Report, above set forth, is fully supported by both the law and the evidence and is the proper result of these proceedings, and it is hereby adopted in toto as the opinion of this Court herein.

In accordance therewith, it is the decree and mandate of this Court that the care and custody of Lori Diane Ray and Larry Steven Ray be and is hereby placed with their natural father, Larry Gene Ray, under the Writ of Habeas Corpus herein, and that the physical custody of said minor children be immediately and forthwith transferred to their natural father, Larry Gene Ray, with all and sundry concomitant legal rights and obligations of parent and children.

It is further ordered that the petitioner’s, Larry Gene Ray’s motion to strike the return herein is sustained as to Paragraphs 2(a), the last clause thereof relating to stealing only; 2(b); and 2(d) of such return.

The costs of these proceedings, including the bills of Howard Rittmaster and Associates, for the preparation of transcripts in the amounts of $142.50 and $158.90, and of Charles E. Bumgardner for the preparation of a transcript in the amount of $84.00, are taxed against respondents Arthur W. Van Meter and Lorene Van Meter, who are ordered to file with the Clerk of this Court appropriate receipts evidencing the payment of such costs and expenses.

All concur.


author: HENRY, Chief Justice. HENRY, Chief Justice.

text:
    Hugh L. BRIGGS et al., Petitioners, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Oct. 10, 1978.
    Edward G. Thompson, Public Defender, Walker Gwinn, Chief App. Counsel, Memphis, for petitioner, Briggs.
    Stanley Fink, Cassell & Fink, Memphis, for petitioner, Taylor.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Leonard T. Lafferty, Jewitt H. Miller, Asst. Dist. Attys. Gen., for respondent.
   OPINION

HENRY, Chief Justice.

We granted certiorari to consider the question of whether convictions for felony-murder and the underlying felony may stand under the Double Jeopardy Clauses of the Fifth Amendment to the Constitution of the United States and Article I, Section 10, of the Constitution of the State of Tennessee. We conclude that they may not.

I.

History of Case

Petitioners were convicted of felony-murder under § 39-2402(4), T.C.A., and of armed robbery under § 39-3901, T.C.A. On their initial appeal, the Court of Criminal Appeals, relying upon Acres v. State, 484 S.W.2d 534 (Tenn.1972), reversed their conviction for murder, remanded for a new trial and dismissed the armed robbery on double jeopardy grounds. We granted cer-tiorari and, in State v. Briggs, 533 S.W.2d 290 (Tenn.1976), reinstated the robbery charge and overruled Acres.

On remand, the petitioners were again convicted of felony murder and armed robbery. The jury verdict was rendered on July 1, 1976. On June 29, 1977, the Supreme Court handed down its opinion in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). It was this decision that prompted the grant of the writ in this case.

II.

Harris v. Oklahoma

In Harris v. Oklahoma, the Supreme Court reversed the decision of the Oklahoma Court of Criminal Appeals (Oklahoma’s court of last resort in criminal actions) announced in Harris v. State, 555 P.2d 76 (Okl.Cr.1976).

Harris was initially convicted of felony-murder. Subsequently he was brought to trial for the underlying felony, robbery with firearms. The trial judge overruled his motion to dismiss grounded upon double jeopardy. Reference to our decision in Briggs, supra, will indicate that the factual situations in the two cases were strikingly similar. In holding that “an individual may be separately prosecuted and convicted for felony murder and the underlying felony which is the basis for the felony murder,” 555 P.2d at 81, the very first case cited by the Oklahoma Court is Briggs.

When Harris reached the Supreme Court of the United States, the Oklahoma Court was reversed. The Court said:

When, as here, conviction for a greater crime, murder, cannot be had without conviction for the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction for the greater one. 433 U.S. at 682, 97 S.Ct. at 2912, 53 L.Ed.2d at 1056.

Under our statutory law (§ 39-2402(4), T.C.A.) as it existed at the time of the commission of the offenses here under consideration, first degree murder was accomplished, among other ways, “a willful, deliberate, malicious and premeditated killing” or by “willful, deliberate and malicious killing or murder during the perpetration” of certain enumerated felonies. The latter is felony-murder and the ingredient of premeditation is not required.

Thus, Harris v. Oklahoma demands a reversal of this conviction to the extent of the conviction for the underlying felony.

III.

May These Convictions be Referred to the Count Charging First Degree Murder

We respond to the captioned question in the negative.

We read Harris v. Oklahoma as applying solely to felony-murder convictions; and, if other tests are met the commission of first degree murder and robbery, even though occurring as a part of a single criminal episode, may form the basis for dual convictions. See State v. Black, 524 S.W.2d 913 (Tenn.1975).

It is a part of our criminal law that “[a] general verdict of guilty will be sustained if there is any one good count in the indictment sustained by proof, although the other counts may be fatally defective.” § 40-2519, T.C.A. In order to invoke this statute, there must be a general verdict.

First we examine the indictment. Petitioners were charged in a three-count indictment. The first count charged felony-murder; the second count charged common law murder (or murder as defined in § 39-2402(1), T.C.A.); and the third charged armed robbery.

Assuming a sufficiency of evidence, a general verdict properly may be related to the second count with the result that the conviction could be upheld for first degree murder and armed robbery. This would preclude any double jeopardy problems.

Under this record, however, the conviction may not be so related. The bill of exceptions shows that the “Forelady” of the jury reported the verdict as follows:

We, the jury find the defendants . guilty of murder in the perpetration of a robbery as charged in the first count of the indictment. . . . (Emphasis supplied).

This verdict speaks loudly and clearly and may not be related to the second count charging common law murder.

Moreover, “[t]he settled law of this State is that a special verdict upon a single count of indictment is given the effect of an acquittal upon the other counts to which the jury did not respond . . . Conner v. State, 531 S.W.2d 119, 126 (Tenn.Cr. App.1975).

Thus, the jury by failing to respond to the second count of the indictment, found the petitioners not guilty of murder in the first degree, as specified in the indictment and under § 39-2402(1), T.C.A., leaving the conviction solely for felony-murder with the premeditation being supplied by the fact that the killing was in the perpetration of a named felony.

Again, Harris v. Oklahoma commands a reversal.

We hold that dual convictions of felony-murder and the underlying felony are offensive to the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of the State of Tennessee and may not stand.

The conviction of petitioners for armed robbery is vacated. The judgment of the Court of Criminal Appeals is

Affirmed as to first degree murder; reversed as to armed robbery.

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

OPINION ON PETITION TO REHEAR

HENRY, Chief Justice.

In a courteous and dignified petition to rehear, petitioner suggests that the Court overlooked the assignments of error contained in the original petition.

While the grant was not specifically limited, the Court was only concerned with the double jeopardy issue. As to all other issues the Court was of the opinion that the Court of Criminal Appeals reached the correct results.

The petition to rehear is overruled.

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

      .Chapter 51, Public Acts of 1977, made no change pertinent to the issue here under discussion.

      .See Peek v. State, 213 Tenn. 323, 375 S.W.2d 863 (1964).

      .The judgment as entered is identical.


author: COOPER, Justice.

text:
    STATE of Tennessee, ex rel. W. B. DYE, Jr., Appellants, v. William J. RAWLS, Appellee.
    Supreme Court of Tennessee.
    Nov. 6, 1978.
    George E. Barrett, Charles R. Ray, Nashville, for appellants.
    Charles H. Beaty, Gallatin, for appellee.
   OPINION

COOPER, Justice.

W. B. Dye, a citizen of Portland, Tennessee, filed an action in the Chancery Court of Sumner County seeking to oust the defendant, William J. Rawls, from the office of Mayor of Portland. The District Attorney General for the Ninth Judicial Circuit, which includes the City of Portland, joined in the action. The basis of the quo warran-to action was the charge that the defendant is not qualified to serve as mayor since, at the time of his election, he had not been a bona fide resident and citizen of the City of Portland for two years, as required by Article III, Section 1, Paragraph 1, of the charter for the City of Portland.

On considering a motion to dismiss, the chancellor concluded that the action, though on its face a quo warranto proceeding, was in reality an election contest. He then dismissed the action on the grounds appellant was not of the class of persons given the right to file an election contest and the action had not been filed within the statutorily prescribed ten day limitation period for election contests. See T.C.A. §§ 2-1701 and 2-1705.

The ultimate question on appeal is: Can the qualifications of an elected official to hold office be challenged in a quo warranto proceeding, where a charged disqualification is one that existed at the time the office holder was elected?

This court has held on numerous occasions that a quo warranto action is a proper vehicle to challenge the qualifications of an elected official to hold the office to which he was elected, whether the alleged disqualification existed at the time of the election or came into existence after the office holder undertook to perform the duties of the office. See State v. Dunn, 496 S.W.2d 480 (Tenn.1973); Bickford et al. v. Swafford, 194 Tenn. 481, 253 S.W.2d 557 (1952); State v. Sensing, 188 Tenn. 684, 222 S.W.2d 13 (1949). This court also has held that under proper circumstances, a challenge to the eligibility of a successful candidate to serve in the office to which he has been elected can be by way of an election contest. Hatcher v. Bell, 521 S.W.2d 799 (Tenn.1974). However, the holding in the Hatcher case in no way limited the use of a quo warranto proceeding to test an officeholder’s qualifications. In fact, it was expressly pointed out that:

[Tjhere is no basis in reason why the same circumstance — that is, the constitutional [in this case statutory] disqualification of the candidate receiving the highest number of votes in an election — can not be the predicate of an election contest as well as a quo warranto proceeding, depending on the party filing, the ultimate purpose of the proceeding, and the time of filing. The circumstance, if proven, would be determinative of the validity of the election, which is the target of an election contest. It also would be determinative of the right of the successful candidate to hold the office to which he is elected, the target of a quo warranto proceeding.

The ease of DeHoff v. Attorney General et al., 564 S.W.2d 361 (Tenn.1978) cited by the chancellor in dismissing appellant’s action does not in any way limit the methods of challenging the qualifications of an elected official to serve in the office to which he was elected. It does no more than hold that where the target of an action is the validity of an election, as contrasted to the elected official’s right to hold the office to which he is elected, the action is an election contest and is subject to the limitation period prescribed for election contests. That holding is in full accord with the statements set forth in the above quotation from Hatcher.

In the instant case, the challenge is to the right of the appellee to serve as mayor of the City of Portland. The proper vehicle for such a challenge is a quo war-ranto action. Being a citizen of Portland, appellant is of the class that, when joined by the District Attorney General, can bring a quo warranto action. Appellant filed such a proceeding and is entitled to have the issues litigated.

The decree of the chancellor dismissing the action is reversed. The action is remanded to the Chancery Court of Sumner County for trial. Costs incident to the appeal are adjudged against the appellee, William J. Rawls.

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


author: SHRIVER, Presiding Judge.

text:
    William H. ELLISON and wife, Marjorie P. Ellison, Plaintiffs-Appellees, v. F. MURRAY PARKER BUILDERS, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Feb. 24, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.
    Robert J. Warner, Jr., Dearborn & Ewing, Nashville, for plaintiffs-appellees.
    Gail P. Pigg, Nashville, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

The Case

Plaintiffs filed a complaint in the Chancery Court of Davidson County against the defendant on October 3,1974 to recover for a breach of covenant against encumbrances as set forth in the deed to property purchased by the plaintiffs from the defendant. The Chancellor found that the defendant had breached its duty to disclose to the plaintiffs that the house had been built over a sewer line and easement and had breached the covenant against encumbrances as set forth in the deed and he awarded plaintiffs a judgment for $3,000.00 against the defendant.

On appeal, the Western Section of this Court, sitting by interchange, in an Opinion by Presiding Judge C. S. Carney, found that the plaintiffs had been damaged but remanded the case to the Chancery Court for the sole purpose of determining the diminution in value of plaintiffs’ property as of the date of their purchase resulting from the sewer and easement underneath the house. On remand, the Chancellor found that the diminution in value was $6,700.00 and from a judgment for that amount, defendant has perfected its appeal to this Court and has assigned errors.

In Re The Opinion of the Court of Appeals, Western Section, sitting at Nashville

In order to determine the exact issue before the Chancery Court on remand, it is important to examine the Opinion of the Court of Appeals which ordered the remand.

In the Opinion of the Court, which is made a part of the record herein, it is stated:

“The Chancellor awarded the plaintiffs, Mr. and Mrs. Ellison, a judgment of $3,000.00 as damages resulting from the failure of the defendant builder, F. Murray Parker Builders, Inc., to disclose to the plaintiffs that a house which they were purchasing encroached on a utility easement and covered a 12-inch trunk sewer line which traversed the lot from north to south. The Chancellor found that the sewer line and easement were encumbrances upon the land and that the omission of any reference in the plaintiffs’ deed to such encumbrance constituted a breach of covenant against the encumbrances in the deed. The defendant has appealed and assigned errors.”

The Opinion proceeds to state that the plaintiffs-appellees had contracted to buy the house then under construction, which contract was executed in September, 1972, for a price of $46,500.00; subsequently, the plaintiffs-appellees contracted to sell the house and lot for a price of $59,500.00 and at the same time contracted to buy another house in Williamson County; that on having a survey made in connection with the sale of this property, the plaintiffs learned for the first time that the house was encroaching upon a sewer easement and a trunk line sewer was situated under the house; that Mr. F. Murray Parker, President of defendant Company, when told of this situation, expressed surprise; that when the purchasers from the plaintiffs learned of the situation, they refused to complete the purchase but, subsequently, did do so after the price was reduced from $59,500.00 to $56,500.00.

After discussing other elements of the case, the Court stated:

“The great preponderance of the evidence in this case is that the house does lie over the sewer line.”

The Court then stated that the encroachment of the house on this area of the utility easement constituted a breach of covenants of seizin and against encumbrances in the defendant’s deed to the plaintiffs.

After discussing the assignments and authorities relied on by the defendant, the Court stated:

. The general rule applicable to the case at bar is concisely stated at 20 Am.Jur.2d p. 703, Sec. 145. . . .”

The Opinion then quotes substantially from 20 Am.Jur.2nd, p. 703, part of which quotation is as follows:

“Thus, in an action on a covenant against encumbrances, where the encumbrance is a servitude or easement which cannot be removed at the option of either the grantor or grantee, damages will be awarded for the injury proximately caused by the existence and continuance of the encumbrance, the measure of which is deemed to be the difference between the value of the land as it would be without the easement and its value as it is with the easement. . . . ”

The Opinion then continues:

“The only proof of diminution in value as a result of the existence of the trunk line sewer was the difference in purchase price paid by the Remicks after learning of the sewer, namely $3,000. At this time Mr. and Mrs. Ellison were under some business compulsion because they had already contracted for another house in Williamson County, Tennessee. It is very candidly stated in the plaintiffs’ brief in this Court that they settled quickly because they did not want to be caught with two houses on their hands. The determinative date of damage is the date of plaintiffs’ purchase, January 16, 1973, and not the date of sale by plaintiffs to the Remicks in August 1974. [Emphasis supplied]
Assignment of Error No. Ill is sustained. The cause will be remanded to the Chancery Court of Davidson County to determine the diminution in value of the plaintiffs’ lot as a result of the existence of the trunk line sewer under the house as of the date of the purchase, namely, January 16, 1973. The costs of this appeal will be taxed to the plaintiffs-appellees. T.C.A. Section 20-1621. The costs in the lower Court on the first and second trials will be taxed to the defendant-appellant. Judgment reversing and remanding will be entered accordingly.
/s/ Carnev. P. J.
/s/ Matherne, J.
/s/ Nearn, J.”

It is thus seen that the only issue before the Chancery Court on remand was to determine the diminution in value of the plaintiffs' lot as a result of the existence of the trunk line sewer under the house as of the date of the purchase, namely, January 16, 1973.

Chancellor’s Memorandum Opinion

After hearing the cause on remand, the Chancellor filed the following Memorandum Opinion:

“MEMORANDUM
This matter was heard on remand from the Court of Appeals for determination of damages resulting from a house constructed over a trunk sewer line.
The measure of damages is the diminution in value as a result of the existence of the sewer as of January 16, 1973, the date of plaintiffs’ purchase.
Four witnesses testified at the hearing.
A qualified real estate appraiser testified that he made an appraisal of the property as of January 1973, and it was his professional opinion that the property had a depreciated value because of the sewer of $6,700.00.
The appraiser also testified, on cross-examination, that two mortgage companies had refused loans because of the sewer defect and that the loan that was approved was at a reduced price as a result of the defect on the property.
A qualified sewer contractor testified that the minimum cost of relocating the sewer from under the house was $7,040.00 as of October 1976. An associate of the sewer contractor testified that the price should be reduced [to] $6,700.00 as the January 1973 cost.
A qualified engineer testified that his estimated cost of relocating the sewer four to five years ago was $2,488.00.
From all of the evidence, the Court finds that the diminution in value of plaintiffs’ lot as a result of the existence of the trunkline sewer under the house as of the date of the purchase, January 16, 1973, was in the amount of $6,700.00.
A decree should be drawn accordingly.
/s/ C. Allen High. Chancellor
April 13, 1977.”

The foregoing Opinion was implemented by a decree rendering judgment in favor of plaintiffs for $6,700.00.

Assignments of Error

There are six assignments of error which may be summarized as follows:

Assignment No. 1 charges error in permitting the appraiser who testified for the plaintiff to testify as to the value of the property in late 1972 and early 1973, when his testimony reveals that he first inspected the property in the late Winter or early Spring of 1977.

Assignment No. 2 charges error in permitting the appraiser to testify as to depreciation in value based on a “cost to cure” method.

Assignment No. 3 is a reiteration of Assignment No. 2 and complains that the expert relied solely on matters outside of his knowledge and on the opinions of others.

Assignment No. 4 complains of permitting a sewer contractor to testify as to the cost for rock excavation on the ground that his testimony revealed that he was guessing as to the amount of rock to be removed.

Assignment No. 5 asserts that the judgment is contrary to the weight and sufficiency of the evidence.

Assignment No. 6 asserts error in awarding more than nominal damages to the plaintiffs.

Our Conclusions

Mr. William R. Manier, III, was called as a witness on behalf of the plaintiffs and testified as to his qualifications as a real estate appraiser, having been in that profession for twelve to fifteen years full time and having taken a number of courses and seminars sponsored by the Society of Real Estate Appraisers and the American Institute of Real Estate Appraisers, and he stated that he carries the designation of SRA, meaning Senior Residential Appraiser.

Mr. Manier testified that he appraised the property in question, stating that he had examined the property in early Spring or late Winter of 1977 and had examined it as if it had no known detrimental aspects to it; that he inspected the property, inquired of local residents and made observations of it as to whether there were any significant changes in the property which had not been called to his attention, and proceeded on the assumption that the house was new as of the time it was purchased in 1972 or early 1973. He also stated that the techniques he used were those normally used by a practicing appraiser, one of which was a cost approach related to cost prevalent at the time applicable, that is, 1972 and 1973, a utilization of sales during the same time span of houses as nearly similar as possible, both as to age, type, etc. He stated:

“Prom this data, an analysis, an opinion of value was derived which indicated strong support and a final conclusion that the actual sales price did, in fact, represent the market value as of this time, with no detrimental aspects being taken into consideration.”
He was then asked and answered:
“Q. And what is your opinion as to what the value of the house and lot were back in September of 1972 and at the time of the sale in January of 1973?
A. $46,500.00.”

He was then asked if he formed an opinion as to the value of the property at the time in question with the sewer and sewer easement, that is, with the actual sewer itself situated beneath the house, and he answered that he had formed such an opinion and that, in his opinion, the value with the existing sewer easement under it was $39,800.00 which amounted to a diminution in value of $6,700.00 as a result of the sewer under the house.

As was pointed out by the Chancellor in his Memorandum Opinion, in addition to the testimony of Mr. Manier, a qualified sewer contractor testified that the minimum cost of relocating the sewer from under the house was $7,040.00 as of October 1976.

The Chancellor was satisfied that Mr. Manier qualified as an expert and that his testimony was competent and relevant and that the objection set forth in Assignment No. 1 that he had viewed and inspected the property in 1977 and then gave his opinion with respect to the value in 1973 was not a valid objection. We are impressed that Mr. Manier was qualified to express his opinion and that the weight to be given that opinion depended, in a large measure, on the Chancellor’s view of the testimony and evidence, he having seen and heard the witnesses and relied on the credibility of Mr. Manier in making his decision.

It is to be noted that the real estate appraiser, Mr. Manier, was shown to have had knowledge of the area at the time period involved and that he was not asked to simply deduct the “cost to cure” from the sales price to arrive at his conclusion and, thus, the mere fact that he considered the “cost to cure” as an element in making his appraisal did not render his testimony inadmissible, nor did it destroy the effect of his opinion.

As is stated in Nichols, Law of Eminent Domain, Sec. 14.247, the general rule is that as is the case in other elements of damage, the actual or estimated cost of specific items of construction or reconstruction are not recoverable as such, but may be utilized as elements bearing upon the market value of the property in question.

Counsel for the plaintiffs cite several cases from other jurisdictions bearing upon this question, among which is Steiger v. City of San Diego, 163 Cal.App.2d 110, 329 P.2d 94 (1958), where the landowners sought to recover damages resulting from the construction of a drainage system which caused water to erode their property. In that case it was said:

“The measure of damages is not the cost of installation of a pipe to carry the water through plaintiffs’ land; however it properly may be considered by the trial court for evidence of the decrease in market value.”

To like effect is State v. Bruening, 326 S.W .2d 305 (Mo.1959), and Currie v. Glasscock, 212 S.W. 533 (Tex.Civ.App.).

Most authorities seem to hold that the “cost to cure,” while not an element of damages in itself, nevertheless, may be considered as relevant to whether there was any diminution in value to the property because of the taking or because of the encumbrance.

Counsel for appellant argues that because the plaintiffs were able to sell their property at a profit some time after the purchase, they should not be entitled to recover more than nominal damages since the burden is on them to show that the existence of the easement has inflicted upon them an actual loss.

This question was before the Court of Appeals on the prior appeal and this position was definitely rejected by the Court which, as is seen from the quotation from the Opinion of the Court hereinabove, it was said:

“The determinative date of damage is the date of plaintiffs’ purchase, January 16, 1973, and not the date of sale by plaintiffs to the Remicks in August 1974.”

In Thompson on Real Property, Section 3158, (1962), the general rule is stated to be:

“The measure of damages is not affected by a rise in the value of the land involved.” Citing North v. Brittain, 154 Tenn. 661, 291 S.W. 1071.

It is to be noted that there is no evidence in this record which disputes or is contrary to the opinion evidence offered by Mr. Man-ier.

For the reasons hereinabove stated, the assignments of error are overruled and the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


author: TODD, Judge.

text:
    Robbie H. VAUGHN, Administratrix of the Estate of William Vaughn, Deceased, Plaintiff-Appellee, v. AMERICAN HERITAGE LIFE INSURANCE COMPANY et al., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    July 28, 1978.
    Certiorari Denied by Supreme Court Oct. 30, 1978.

      Arthur E. McClellan, Gallatin, for plaintiff-appellee.
    David J. White, Nashville, for defendant-appellant.
   ABRIDGED OPINION

TODD, Judge.

With the concurrence of participating judges, the original opinion has been abridged for publication.

This is a suit to recover the $6,000.00 value of a credit life insurance policy plus statutory penalty. The Chancellor awarded judgment for $6,000.00 but denied penalty. Both parties appealed.

The material facts are uncontroverted.

On February 10, 1976, at 3:30 p. m., William Vaughn applied to Commerce Union Bank for a loan for 91 days to be due on May 11, 1976. Simultaneously, Vaughn made application to the defendant for a $6,000.00 credit life insurance policy upon his own life for a period of 91 days and paid an advance premium computed on a daily rate for 91 days.

The loan was granted as requested; and the insurance application and premium were accepted; but the certificate of insurance, when issued, stated the term of insurance as three months, rather than 91 days as requested.

William Vaughn died on May 11, 1976, at 1:15 a. m.

The appeal of the defendant is based upon the theory that the contract of insurance expired by its terms prior to the death of the insured.

Since the year 1976 was a “leap year” wherein there were 29 days in the month of February, a period of 91 days extends from 3:30 p. m. on February 10, 1976, to 3:30 p. m. on May 11,1976. By such measurement, the policy was in force at the time of death, 1:15 a. m., May 11.

Nevertheless, defendant insists that the term of the policy was measured in months, rather than days so that the three month term of insurance began on February 10 and ended three calendar months later on May 10, before the death of deceased.

The authorities generally hold that a term of months ends on the same day of the terminal month as the day of the initial month on which the term began, unless the day in question does not occur in the terminal month (as, for example, February 30) in which event the term ends on the last day of the terminal month. Needham v. Moore, 200 Tenn. 445, 292 S.W.2d 720 (1956); 86 C.J.S. Time § 13(9), pp. 862, 863, note 43.

If the loan in connection with which this insurance was procured had been for a term of three months, then its due date would have been the day in May corresponding to the date of the loan, that is, May 10. A three month insurance policy issued on February 10 would terminate at midnight on May 10. However, the preceding abstractions should not apply to the present case because of its peculiar facts.

At the trial of the case there were only two witnesses, the plaintiff and W. L. Simp-kins, Jr., both of whom testified at the instance of the plaintiff.

Plaintiff testified that she joined her husband in executing a 91 day note for purchase of a home; that credit insurance was obtained; and that all of the note had been paid except $6,000.00, the amount involved in this suit.

Mr. Simpkins testified that he owned and operated the Rebel Insurance Agency which specialized in credit life insurance; that Commerce Union Bank was a sub-agent for the purpose of selling credit life insurance and received a percentage of the premium paid on all policies sold by the bank; that, in the present case, the bank sent to the Rebel Agency a “requisition form” dated February 10, 1976, ordering that deceased be insured for 91 days; that Rebel Agency received $37.68, the correct premium for 91 days; that Rebel Agency issued a certificate of insurance for three months and sent same to Commerce Union Bank.

Under the foregoing testimony, which is uncontradicted, the plaintiff is entitled to recover.

Commerce Union Bank was clearly the agent of defendant. T.C.A. §§ 56-705, 56-801 A.

The circumstances produce a compelling inference that the bank agreed with deceased that he would be insured for 91 days, the term of the loan, and that the bank, using the funds of deceased (from the loan), paid the Rebel Agency for 91 days of insurance. There is no evidence that the three months certificate of insurance was ever delivered to or seen by deceased. The presumption would be that the certificate was retained by the bank, which was the primary beneficiary of the insurance.

The agents of the defendant (the bank and the Rebel Agency) accepted deceased’s money in payment of 91 days insurance and allowed deceased to believe he was insured for 91 days. So far as deceased knew he was insured for 91 days. The undisclosed preparation of a three months policy by one agent (Rebel) and delivery of same to another agent (the bank) can have no effect upon the original understanding between the bank and deceased.

As an alternative means of reaching the same result, the three months provision of the policy should be viewed in the light of the dealings between the parties (loan term, application term, premium term). The parties beyond peradventure of a doubt intended that the policy provision of three months should mean 91 days. The expression, “three months”, in the policy should be interpreted to mean 91 days, or the policy should be reformed to state the true intention of the parties. In either event, the result is the same: plaintiff is entitled to recover the amount of the policy.

The assignments of error of defendant-appellant are respectfully overruled.

The plaintiff-appellant complains of the failure of the Chancellor to award penalty as provided in T.C.A. § 56-1105 A, which reads as follows:

“56-1105. Additional liability upon insurers for failure to pay promptly insurance losses when refusal is not in good faith.—A. The insurance companies of this state, and foreign insurance companies and other persons doing an insurance business in this state, in all eases when a loss occurs and they refuse to pay the same within sixty (60) days after a demand shall have been made by the holder of the policy on which said loss occurred, shall be liable to pay the holder of said policy, in addition to the loss and interest thereon, a sum not exceeding twenty-five per cent (25%) on the liability for said loss; provided, that it shall be made to appear to the court or jury trying the case that the refusal to pay said loss was not in good faith, and that such failure to pay inflicted additional expense, loss, or injury upon the holder of said policy; and, provided, further, that such additional liability, within the limit prescribed, shall, in the discretion of the court or jury trying the case, be measured by the additional expense, loss, and injury thus entailed.” (Emphasis supplied)

Even though the present suit was probably the result of the inexact handling of the insurance by the agents of defendant, this Court cannot say that the refusal to pay was not in good faith.

Moreover, the only damage or additional expense shown by the evidence or relied upon in brief is the additional interest accrued upon the loan due the Commerce Union Bank. The rate of such interest is not shown, but the aggregate of same will largely be reimbursed to plaintiff by allowance of interest upon the policy from due date to date of judgment and of statutory interest upon the judgment from its date of rendition to date of payment.

Plaintiff is entitled to interest at 6% upon the recovery from the date of accrual of her right to sue until the date of judgment, T.C.A. §§ 47-14-104, 47-14-107, and at 8% from the date of judgment until paid, T.C.A. § 47-14-101.

It appears that demand was first made on August 31, 1976, and that payment was due within 60 days thereafter. Accordingly, plaintiff is entitled to interest at 6% on $6,000.00 from November 1, 1976, to July 22,1977, the date of the Chancellor’s decree.

The decree of the Chancellor is therefore modified to award judgment for $6,000.00, plus interest at $258.00, or a total of $6,258.00. As modified, the decree of the Chancellor is affirmed by this Court, resulting in a judgment in this Court in favor of plaintiff and against defendant for $6,258.00, plus 8% interest from July 22, 1977, to the date of the entry of judgment in this Court.

As provided in the decree of the Chancellor, the judgment may be paid to the Commerce Union Bank to the extent of its prior interest in the policy.

Modified and rendered.

SHRIVER, P. J., and LEWIS, J., concur.