author: SEILER, Judge. WELLIVER, Judge,

text:
    STATE of Missouri, ex inf., John ASHCROFT, Attorney General of Missouri, Relator, v. Arthur A. RILEY, Sheriff of Audrain County, Respondent.
    No. 61254.
    Supreme Court of Missouri, En Banc.
    Dec. 6, 1979.
    Rehearing Denied Jan. 15, 1980.

      John Ashcroft, Atty. Gen., Bruce E. Anderson, Asst. Atty. Gen., Jefferson City, for relator.
    David V. Bear, Columbia, for respondent.
   SEILER, Judge.

The Attorney General filed an original proceeding in quo warranto in this court, naming Arthur A. Riley, sheriff of Audrain County as respondent. The object of this proceeding is to secure a forfeiture of his office, oust him and declare the office vacant, for alleged official misconduct.

The information charges respondent with a number of violations of official duties, alleged to result in forfeiture of his office, pursuant to Section 106.220. Without taking the time and space to set forth those charges and related evidence which we do not believe warrant ouster, we instead set forth the charge which we believe is decisive of the matter, paragraph 4 of the information, which alleges as follows:

“4. That by virtue of Section 221.090, RSMo (Laws 1971) respondent, as sheriff of Audrain County, Missouri, is charged with the duty of furnishing food to each prisoner confined in his jail and submitting monthly statements, supported by affidavits, of the actual cost incurred in boarding the prisoners; and that respondent has willfully and fraudulently violated this official duty in the following respects:
A. Respondent did at least from January 1977 until February 1978 submit statements to the county court, indicating a cost of $200.00 per month for the services of a cook for the jail;
B. Audrain County did, during the same period of time, reimburse respondent for his claimed expenses including $200.00 per month for a cook;
C. Respondent employed one Janet Shipley as cook for the jail at a salary of $25.00 per week, thereby defrauding the county of a sum of money in excess of $1,000.00 but the exact amount being at present unknown to relator.”

Honorable Norwin D. Houser, former commissioner of this court, was appointed master to hear the evidence and report his findings and recommendations. Judge Houser heard the parties in three days of hearings, with some thirty-one witnesses, numerous exhibits and one deposition. The master found the respondent guilty of five of the six charges, including charge 4, and recommended ouster.

The facts about charge 4, involving the handling of money allowed for employment of a cook are as follows: Under the law, Section 221.020, it is the duty of the sheriff to see that the prisoners confined in the jail are provided with food. State ex rel. Saline County v. Price, 296 Mo. 121, 246 S.W. 572, 574 (1922). Under Section 221.105, it is the duty of the county court to fix the amount to be expended for the cost of incarceration of prisoners confined in jails. The sheriff at the beginning of the year would work out his budget with the county court. Included in the budget was an amount for the feeding of prisoners. In the past the county court had allowed $100.00 per month for a cook. The sheriff estimated it cost him about $125.00 a month out of pocket to hire a cook. About this time the cook married and departed. The sheriff, being unable to find another cook, employed his radio dispatcher, a Mrs. Shipley, to be a part-time cook, which involved overseeing the trusties, preparing the meals, setting up the menus and ordering the food. She agreed to help out with the cooking for $25.00 a week. Then at the beginning of the sheriff’s second term in 1976, the county court raised the allowance from $100.00 to $200.00. The sheriff, however, continued to pay Mrs. Shipley $25.00 per week. He also paid her social security, which he estimated amounted to about $40.00 every three months. Each month a form would be prepared by the man who did the sheriff’s bookkeeping (the same man who had done the bookkeeping for respondent’s predecessor) for submission to the county court of the actual cost of feeding persons lodged in the county jail. This form would list the prisoners, the nature of the charge against them, the date committed, date discharged and the number of days they were in jail during the month. It also included a dollar amount for the supplies on hand at the beginning of the month, a dollar amount for supplies purchased during the month and a deduction for the amount of supplies on hand at the end of the month, leaving a figure for the net cost of supplies for the month in question. In addition, under the item “labor paid by county for [month in question]” the figure $200.00 would appear and was included in the total cost for the month. On this basis the sheriff would submit his affidavit to the effect that the aforegoing account “is a full, true and correct statement of the actual cost incurred by him in the feeding of prisoners under his custody, during the month in question and that the amount shown due the sheriff is properly chargeable to the county or to the state under the. law.” The county court would approve payment accordingly.

This went on for thirteen months, when the county court itself took over the hiring of a full-time cook. This brought Mrs. Shipley’s employment as cook to an end and when she remarked or complained to the sheriff about her resulting loss of income, she testified: “He did state he would be losing some, too.”

All three of the county court judges were called as witnesses. One, the presiding judge, was asked about their knowledge of these facts and their understanding of the arrangements with the sheriff. The presiding judge said that the county court had never asked for or expected an accounting from the sheriff; that they did not know he was not spending the entire $200.00 for a cook; that is what they assumed it was going for; that they were not authorizing the sheriff to spend what he chose of the $200.00 and keep the rest and that they had just assumed he would spend that for a hired cook or for preparation of food. One of the associate county judges who testified was asked no questions on this subject but expressed the opinion that Sheriff Riley’s reputation is good. The other associate judge testified that January is the budget month and the practice is to take the previous year’s food cost and estimate a probable increase of 10%. The $200.00 per month appears in the budget as food preparation allowance; that the court has no way of knowing whether he spends it, but takes the sheriff’s word for it, relying on the figures on the sheet. It was considered as a flat allowance for food preparation. He, too, testified that respondent’s reputation is good. The county clerk testified that the county court now pays the cook $6,032.00 per year and itself withholds taxes and social security; that the $200.00 per month item was a budgeted item with the board of the prisoners; that he knows of no instance when the court had asked the sheriff for an accounting and he considers the $200.00 to be an allowance as compared to something that an accounting would have to be given for. The man who kept the books for the sheriff and prepared the monthly reports said it had always been his understanding that the $200.00 was an allowance. He could tell from the quarterly returns on Mrs. Shipley and the withholding that she was not getting $200.00 a month in salary, but the sheriff told him the county court had raised the allowance to $200.00 and since he (the accountant) assumed it was an allowance, that is what he put it down for in the monthly report. He said this was “strictly an assümption” on his part.

No matter how it is viewed, however, the fact is that the sheriff month after month submitted a statement of cost of feeding the prisoners to the county court for purposes of reimbursement on which he included a $200.00 item for labor when in fact he was not paying that amount. He was only paying $25.00 a week and the social security tax, which he estimated ran around $40.00 per quarter. According to the copy of Mrs. Shipley’s wage and tax statement for 1977 (Form W-2) in evidence, there was no state or federal income tax withheld on her salary. The sheriff denied that any of the $200.00 went in his pocket, but that is not credible under the facts before us. There is no place else it could have gone.

The sheriff did say that his personal automobile was used to pick up groceries and other items needed in the kitchen, which would to that extent be an added out of pocket expense for the sheriff in providing food for the prisoners. The sheriff placed no figure on what this amounted to, but no claim is made that it would amount to the difference between what the sheriff received for food preparation and what he paid the part-time cook.

As said earlier, under § 221.105, the county court fixes the amount to be spent on the prisoners for food. That section contemplates the charging of actual costs for the food and its preparation. On this point the master reported to us as follows and we agree:

“A sheriff is entitled to reim-. bursement of the actual cost incurred by him in food preparation for prisoners, within the amount fixed by the county court. He is not entitled to make a profit on this item of cost. A sheriff who knowingly charges and collects from the county court for such food preparation more than actual cost perpetrates a fraud on the county and is guilty of misconduct in office. By representing to the county court that the actual cost of food preparation was $200.00 per month, when in truth and fact the actual . cost was $25.00 per week plus social security payments, and pocketing the difference, respondent is guilty of willful and fraudulent violation of official duty under Section 106.-220. These violations occurred while Section 558.120 was in full force and effect, providing that any officer of any county who shall commit any fraud in his official capacity or under color of his office shall be adjudged guilty of a misdemeanor, and while Section 558.130 was effective, providing that every person, who shall be convicted of any official misdemeanor or misconduct in office ‘shall, in addition to other punishment prescribed for such offense, forfeit his office.’ Actual conviction of crime is not a necessary prerequisite to forfeiture of office and ouster in a quo warranto proceeding. State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 948 (banc 1938).

“Respondent’s defense is that the practice had existed before he assumed office and he had ‘gone along with it’; that he considered the $200.00 to be an allowance, for which he was not asked to account; that he did not realize he ‘had to be precise and turn in the exact amount paid the cook as cost of food preparation’, and that Section 221.090, requiring respondent to submit monthly statements of ‘actual cost incurred by him in the boarding of prisoners’, was repealed (effective August 13, 1976), before respondent’s second term of office began.

“The fact that there was a longstanding custom or practice in Audrain County not to ask the sheriff for an accounting of the money he spent for food preparation does not excuse his violation of the statute. ‘Where established customs and practices are challenged and found to run counter to plain and unambiguous language of controlling regulatory statutes such customs and practices must give way to the law, which this Court must declare as it is and not as some would prefer that it had been yritten.’ State ex inf. Danforth v. Dale Curteman, Inc., 480 S.W.2d 848, 858 (Mo.1972). ‘It is self-evident that a custom or usage repugnant to the express provision of a statute is void.’ State ex inf. McKittrick v. Williams, 346 Mo. 1003, 144 S.W.2d 98, 104 (banc 1940). That respondent was not asked to account, or failed to appreciate the extent of his obligation, or that Section 221.090 was repealed in 1976, does not excuse respondent. The fact remains that respondent by false [representations] fraudulently obtained from the county, and retained for his own personal use and benefit, money to which he was not entitled.”

Under the long-established law of this state, as announced in State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527 (banc 1941); State ex inf. Dalton v. Mosley, 365 Mo. 711, 286 S.W.2d 721 (banc 1956) and State ex inf. Danforth v. Orton, 465 S.W.2d 618 (Mo. banc), cert. denied, 404 U.S. 852, 92 S.Ct. 90, 30 L.Ed.2d 92 (1971), respondent’s commission of the acts of official misconduct here reviewed resulted in the automatic forfeiture of his office, leaving nothing remaining to make it official except the establishment of the facts in a proper proceeding and a judicial declaration of forfeiture. “ * * * [A] provision that an officer who is guilty of specified conduct ‘shall thereby forfeit his * * * office’ [which is the language of Section 106.220] is self-executing * * (our brackets) 63 Am.Jur.2d Public Officers and Employees § 188, p. 742; State ex inf. McKittrick v. Whittle, 333 Mo. 705, 63 S.W.2d 100 (banc 1933). The official misconduct involved in this case requires that in the public interest respondent be removed from the office of sheriff of Audrain County.

Accordingly, we declare that respondent Arthur A. Riley has forfeited and now usurps the office of sheriff of Audrain County. We order him ousted from office, and declare the office vacant.

Even though relator did not succeed in maintaining all of his charges against respondent, which might call for a division of costs between the parties, no division is permissible here since there is no statutory authority for assessment of costs against the state or the attorney general. State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 371 (Mo.App.1973). Accordingly, the costs, which include officers’ fees for serving subpoenas, witness fees for attendance, mileage incurred by officers and witnesses, and the cost of preparing the transcript, will be assessed against respondent.

DONNELLY, RENDLEN and MORGAN, JJ., concur.

WELLIVER, J., dissents in separate dissenting opinion filed.

BARDGETT, C. J., and HIGGINS, J., dissent and concur in separate dissenting opinion of WELLIVER, J.

WELLIVER, Judge,

dissenting.

I respectfully dissent.

The principal opinion would remove Sheriff Arthur (Bud) Riley from office and prevent him from serving out his second elective term as sheriff of Audrain County, upon a finding that he “willfully and fraudulently” overreported the expenses incurred in the preparation of food for prisoners in the Audrain County Jail between January 1977 and February 1978. Sheriff Riley reported a fixed amount of $200 per month for food preparation, while expending only $25 per week for the salary of a part-time cook in the jail. The finding of the principal opinion rests on the rejection of Sheriff Riley’s denial that any of the $200 went into his pocket. It rests on the inference that “There is no place else it could have gone.” Sheriff Riley testified that the money all went to defray “actual food costs.”

The relator must bear the burden of proof in this case. State on inf. Stephens v. Fletchall, 412 S.W.2d 423; 428 (Mo. banc 1967); State on inf. Cornett v. Madget, 297 S.W.2d 416, 427 (Mo. banc 1956). In Madg-et, this Court pointed out that while the relator in a quo warranto proceeding does not have the burden of proving guilt beyond a reasonable doubt as does the state in a criminal case,

forfeitures are not favored and the foregoing legal principles are tempered by the rule stated in 43 Am.Jur. Public Officers, § 34, p. 39: “The remedy by the removal of a public officer has been said to be a drastic one, and the statutory provision defining the grounds for removal is given a strict construction.”

297 S.W.2d at 428. A strict construction of the phrase “willful or fraudulent violation or neglect of any official duty,” § 106.220, RSMo 1969 must be applied in this case.

The bookkeeper for the Sheriff’s office, the county clerk, and the presiding judge and the associate judge of the county court, all testified that it was the accounting practice in Audrain County to list the food preparation allowance as a fixed sum. The fact that Sheriff Riley went along with an arguably inaccurate accounting practice that had existed before he assumed office does not establish that Sheriff Riley kept money to which he was not entitled, or that he knew that what his bookkeeper placed on the monthly statements misrepresented actual costs. The judges of the Audrain County Court knew that the $200 fixed figure was more than enough to pay the salary of the part-time cook. Relator has not proven that Sheriff Riley willfully sought to deceive the county court or to defraud the taxpayers. Relator has failed to prove that Sheriff Riley kept any of the food preparation allowance for himself. On this record, there is insufficient evidence to warrant Sheriff Riley’s ouster for willfully and fraudulently violating his official duty.

      . All section citations refer to Revised Statutes of Missouri 1969 unless otherwise indicated. Section 106.220 provides as follows:
      “Any person elected or appointed to any county, city, town or township office in this state, except such officers as may be subject to removal by impeachment, who shall fail personally to devote his time to the performance of the duties of such office, or who shall be guilty of any willful or fraudulent violation or neglect of any official duty, or who shall knowingly or willfully fail or refuse to do or perform any official act or duty which by law it is his duty to do or perform with respect to the execution or enforcement of the criminal laws of the state, shall thereby forfeit his office, and may be removed therefrom in the manner provided in sections 106.230 to 106.-290.”


source: Caselaw Access Project

author: BARDGETT, Chief Justice.

license: Public Domain

text:
    Gloria WILLIAMS, Appellant, v. Donald COLE, Respondent.
    No. 61442.
    Supreme Court of Missouri, En Banc.
    Dec. 6, 1979.

      Donald V. Fraser, Jr., St. Louis, for appellant.
    Edward P. Burke, Clayton, for respondent.
   BARDGETT, Chief Justice.

On application of Gloria Williams, hereinafter “mother”, after opinion by the Court of Appeals, Eastern District, this Court transferred the appeal to examine the question of whether the failure of the trial court to make a record of the in camera interview with minor children in this child custody proceeding, as required by § 452.385, RSMo Supp.1975, was prejudicial error requiring the trial court’s judgment, which denied the mother’s motion to modify, be reversed and remanded for new trial. A division of the court of appeals affirmed the trial court, Judge Gunn dissenting.

This Court has concluded that the requirement of § 452.385 that a record be made of in camera interviews of minor children in child custody proceedings is mandatory, and the failure to make such a record in the instant case requires that the trial court’s judgment be reversed and the cause remanded for a new trial. Portions of the court of appeals opinion and dissent will be utilized without the use of quotation marks.

The parties were divorced in 1971 with the mother being awarded custody of the two minor children, R_, bom April 19, 1966, and A_, born September 15, 1969. Donald Cole, hereinafter “father”, was awarded temporary custody rights for weekends and one and one-half months during the summer. About three years later the mother filed a motion to modify the custody arrangements and the father filed cross motions and also requested that the mother be held in contempt for failure to allow the father his temporary custody rights on certain occasions. While these motions were pending the mother moved to California with the children and without notifying the trial court or her lawyer. Both parties subsequently remarried. The trial court reinstated a contempt order previously issued against the mother and sustained the father’s motion for modification with respect to the custody of the children, awarding primary custody of the two children to the father. However, the unknown whereabouts of the mother and the children thwarted the father’s efforts to exercise his custodial rights. Thereafter the mother filed another motion to modify seeking to regain the primary custody of the children. Evidentiary hearings were held on this latter motion on April 29 and 30, 1976, and January 31, 1977. On November 2, 1977, the court entered a judgment on the motion in favor of respondent Donald Cole, leaving the primary custody of the children with the father.

As noted, the decisive point on this appeal concerns the trial court’s in camera interview during the evidentiary hearing of the two children who were then 10 and 7 years old. There was no record made of this interview, although it was attended by attorneys for both parties. With respect to the interview, the record contains the following:

“(Discussion off the record at the Bench.)
“(The following was at the Bench, out' of the hearing of the parties:)
“MR. BURKE [father’s attorney]: I would object to the children testifying, personally, due to their age, and also due to the emotional effect on the children in forcing them to come here and testify in open court and their emotional involvement in this thing, which is quite upsetting to them. I have no objection to the Judge interviewing the children in Chambers.
“MR. FRASER [mother’s attorney]: If the lawyers were present in the Chambers. I would like to be present, and I would like the Court to interview them.
I think it has a very deciding piece of evidence that both children would be able to talk to this Court.
“(Discussion off the record.)”

Section 452.385, RSMo Supp.1975, provides:

“The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and relevant matters within his knowledge. The court shall permit counsel to be present at the interview and to participate therein. The court shall cause a record of the interview to be made and to be made part of the record in the case.”

The mother’s attorney admitted that he knew that a record was not being made but did not object. Subsequently, he filed an affidavit showing that the interview was of a general nature and that the court did not ask the children their preference of either parent as custodian. The trial court is vested with the discretion pursuant to § 452.385 to interview the child or children in chambers with counsel present and participating. R.S.M. v. 542 S.W.2d 361, 362 (Mo.App.1976). But if the court exercises its discretion and interviews the children in chambers without causing a record to be made, error is presumed. See Duncan v. Duncan, 528 S.W.2d 806 (Mo. App.1975). Accord In Interest of T. L. C., 553 S.W.2d 556 (Mo.App.1977).

The rationale underlying the rule is twofold. First, any consideration given by the trial court to the child’s unrecorded testimony would be improper as not being supported by the record. Second, the failure to preserve the child’s testimony precludes meaningful review with respect to what extent, if any, the trial court relied upon the child’s testimony in determining whether a change of circumstances has occurred and if modification of a prior custody decree is necessary in order to serve the best interests of the child. Although the parties to a dissolution proceeding are authorized pursuant to § 452.325, RSMo Supp. 1975, to enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them and the custody, support, and visitation of their children, the agreement, with respect to the custody, support, and visitation of minor children is not binding on the trial court, nor can the parties preclude or limit the court with respect to the modification of the support, custody, or visitation provisions of the decree. As a result, orders pertaining to the custody of minor children become the special obligation of the judge who must act upon evidence adduced in the case. Such evidence must be recorded in order that a meaningful review of child custody orders can be had and in order that subsequent motions for modification can be decided by the court. The court can then use the prior record to determine the conditions as of the time of the initial order and whether there has been any change in those conditions.

Counsel for both parties agree that the trial court did not interview the children for the purpose of ascertaining their preferences with respect to custody. Because of this, the father argues that a record need not be made regarding the in camera interview and therefore no error occurred by the failure to record the interview. The father overlooks the fact that the trial court is not limited in the scope of its in camera interview to custodial preference but may inquire into any “relevant matters” within the children’s knowledge. Those matters may bear upon the trial court’s determination of custody. Absent a record, the appellate court cannot know what reliance, if any, the trial court placed on the interview in reaching its custodial decision. Meaningful review is therefore precluded.

As neither attorney objected to the trial court’s in camera interview of the children without a record being made, the issue of waiver is raised concerning the statutory requirement that a record be made. However, the overriding consideration in a custody proceeding is the children’s welfare, Pearson v. Pearson, 575 S.W.2d 934, 935 (Mo.App.1978), and § 452.385 pertains to a facet of the proceeding which may have an important effect on the children’s welfare.

The Court believes it inappropriate to find a waiver of the statutory provision which requires a court to make a record of the interview simply from the attorney’s failure to request that a record of the interview be made. The failure to make a record of the in camera interview precludes a total review of the evidence leading to the trial court’s custody decision, which was the sole issue to be determined.

In Duncan v. Duncan, a similar case which also involved a situation where the trial court failed to make a record of the in camera interview with the minor children, the court, referring to § 452.385, stated at 809:

“. . .If the court elects to interview a child in chambers to ascertain his wishes as to his custodian and relevant matters within his knowledge, the court must follow the mandate of the statute and permit counsel to be present and to participate, and cause a record to be made and to be made a part of the record of the case; if the court makes no such election, then the statute has no application.”

The Court is in agreement with the holding of Duncan v. Duncan, supra. The requirement of § 452.385 that a record be made of in camera interviews of minor children is mandatory. The failure to make such a record constitutes prejudicial error.

Judgment is reversed and the cause is remanded for a new trial.

All concur.


author: RENDLEN, Judge. BARDGETT, Chief Judge,

text:
    Daniel W. FOSTER, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 61175.
    Supreme Court of Missouri, En Banc.
    Dec. 6, 1979.

      S. Gerald Miller, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
   RENDLEN, Judge.

Appellant by petition for writ of error coram nobis seeks to vacate three prior criminal convictions entered on pleas of guilty. Following the trial court’s denial of his motion, appellant, out of time, filed his notice of appeal and when challenged by the State, conceded the notice was late.

After opinion in the Court of Appeals dismissing the appeal, we ordered the cause transferred here and consider the case as though on original appeal. Utilizing much of the Court of Appeals opinion without quotation marks, the appeal is ordered dismissed.

Though the appeal is dismissed as untimely, our review of the record discloses that the trial court correctly denied the motion on the merits.

Turning to the question of jurisdiction, it should be first noted that a writ of error coram nobis is a civil proceeding, Peterson v. State, 476 S.W.2d 608, 611 (Mo. 1972), hence the rules of civil procedure govern. The trial court denied appellant’s coram nobis petition September 12, 1977, and thirty days later on October 12 that order became a final judgment. Rule 81.-05(a). Ten days later, October 22, 1977, appellant’s notice of appeal was due. To effectively appeal the order in this court-tried case, appellant was required to file either a notice of appeal not later than 10 days after the order became final (Rule 81.04), or a motion for new trial not later than 15 days after entry of the judgment (Rule 73.01(l)(c)). Therefore, as noted above, the relevant deadlines would have been 10 days from October 12, 1977, or 15 days from September 12, 1977. However, appellant did not file a motion for new trial until October 24, 1977, and no notice of appeal was filed until December 2, 1977. Further, no Rule 81.07(a) application was made to the Court of Appeals, Eastern District, the appropriate appellate court, nor was any order granted which would allow the late filing of notice of appeal. Consequently, neither the Court of Appeals nor this Court on transfer has jurisdiction to consider this appeal, and it must be dismissed. State v. Lindner, 498 S.W.2d 754, 756 (Mo. banc 1973); Olds v. State, 532 S.W.2d 518, 519 (Mo.App.1975); Griffin v. State, 529 S.W.2d 665, 666 (Mo.App.1975); Johnson v. State, 521 S.W.2d 479, 480 (Mo. App.1975).

Appellant entreats us to consider his appeal ex gratia as done in Winston v. State, 533 S.W.2d 709 (Mo.App.1976). However, the court in Winston dismissed the appeal for lack of appellate jurisdiction and the ex gratia appellate review was fruitless for the appellant.

Appellant contends that he was misled into his untimely appeal when the trial court granted an extension of time to file his motion for new trial beyond the 15 days, which to appellant’s dismay cannot be done in a Rule 73.01 non-jury proceeding by reason of Rule 44.01(b). However, we are involved in a jurisdictional matter which cannot be waived, even by consent of the parties. Corder v. Corder, 546 S.W.2d 798, 800 (Mo.App.1977). Hence, we are without jurisdiction to entertain the appeal and it is ordered dismissed.

DONNELLY, WELLIVER and MORGAN, JJ., and WELBORN, Special Judge, concur.

BARDGETT, C. J., concurs in result in separate opinion filed.

SEILER, J., concurs in separate concurring opinion of BARDGETT, C. J.

HIGGINS, J., not participating because not a member of the Court when cause was submitted.

BARDGETT, Chief Judge,

concurring in result.

I write this opinion concurring in result only, because I am in agreement that this appeal should be dismissed but for reasons quite different than those enunciated in the principal opinion, and because the principal opinion addresses other matters which, in my opinion, ought not be decided in this case.

Foster is serving consecutive sentences of fifteen years upon a conviction of sodomy and twenty years on a conviction of rape. State v. Foster, 490 S.W.2d 659 (Mo.App. 1973); State v. Foster, 490 S.W.2d 662 (Mo.App.1973). In each of these cases the trial court assessed the punishment pursuant to the second offender act, § 556.280, RSMo 1969. The second offender act proceedings were premised upon earlier convictions which became the subject of the petition for writ of error coram nobis in this case. Appellant sought, by a procedure in which he utilized the forms prescribed for filing motions under 27.26, but styled them petitions for writ of error coram nobis, to have the earlier three convictions set aside for certain irregularities which he alleged attended the sentencing in those three cases. The matter was heard by the circuit court and relief was denied.

The principal opinion sets forth the facts relating to the request by Foster’s counsel for an extension in which to file a motion for a new trial and the granting of that request by the trial judge. Coram nobis is governed by the civil rules. However, it is wholly understandable to me that an attorney might think that since the problem addressed in the coram nobis proceeding is essentially one relating to the conviction of a person who is in the penitentiary, the criminal rules apply. In any event, the judge did grant the extension and so he must have shared the same view. Of course, both the attorney and the judge were mistaken in this regard; But it was not until after six months following the due date for a notice of appeal that the state suggested to the court of appeals that they had no jurisdiction in the matter because the notice of appeal was not filed in time. The case was argued and submitted in the court of appeals on October 10,1978, and on October 24, 1978, the appeal was dismissed by opinion. After an unavailing motion for rehearing or transfer in the court of appeals, appellant sought transfer here, which we granted. The case was then briefed and argued in this Court. I am convinced that there is no merit to the substantive points made in the appeal and that if the appeal were entertained the trial court’s judgment denying relief should be affirmed. In my opinion, the Court should, sua sponte, consider whether or not to permit this appeal to be maintained under Rule 84.08, which allows a court in which an appeal is pending to suspend or modify the rules in a particular case upon a showing that justice so requires. The circumstances attending the late filing of the motion for a new trial and, consequently, the late filing of the notice of appeal were the result of excusable neglect which would have warranted the late filing of a notice of appeal had the possibility of doing so been brought to the attention of Foster’s attorney within the six-month period. However, having considered the entire matter, including the substantive points which have been briefed and argued, I have concluded that petitioner is not entitled to any substantive relief; that the judgment of the circuit court was correct; and therefore justice does- not require the suspension or modification of the rules so as to permit the maintenance of this appeal. For these reasons I would dismiss this appeal.

For the reasons stated above, I concur in the result only.

      . Appellant employed forms prescribed for Rule 27.26 actions (see Rule 27.26 Appendix) for his petition in this action. Because he is not in custody under the judgments sought to be set aside, Rule 27.26 relief is not available to vacate the sentences previously served. Peterson v. State, 476 S.W.2d 608, 609-610 (Mo. 1972). The trial court accommodated appellant by treating his petition as one for writ of error coram nobis and we will view that pleading in the same fashion.

      . Appellant claims that his guilty pleas were involuntary in that he was not apprised of his constitutional rights by the trial court. He was represented by counsel during those proceedings and during a period of protracted plea bargaining was informed of the consequences of his plea. Nevertheless he complains the array of rights discussed in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was not specifically recited and this requires vacation of the judgment and sentences. However, Boykin does not mandate that a litany of constitutional rights be read in guilty-plea proceedings. McChesney v. Henderson, 482 F.2d 1101, 1110 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974). We have reviewed the record and it is evident the pleas were voluntarily made. Schellert v. State, 569 S.W.2d 735, 738 (Mo. banc 1978). Appellant further claims his sentences were illegally increased. It appears that before the originally announced sentences were finally entered, appellant while still before the court, acceded to an increase of the sentences in exchange for suspended imposition of sentence and probation. Under these circumstances it was within the trial court’s power to modify the sentences. State v. Burroughs, 559 S.W.2d 42, 43 (Mo.App.1977). Nichols v. United States, 106 F. 672, 678 (8th Cir. 1901). Here the trial court found that movant’s testimony in the “evidentiary hearing was not worthy of belief’ and that no prejudice occurred in the original criminal proceeding. Substantial evidence in the hearing record supports the trial court’s finding and conclusion.


author: MORGAN, Judge.

text:
    Alan KIEFFER, Appellant, v. Eileen KIEFFER, Respondent.
    No. 61469.
    Supreme Court of Missouri, En Banc.
    Dec. 6, 1979.

      Joseph A. Lott, Clayton, for appellant.
    Morton R. Newman, Clayton, for respondent.
   MORGAN, Judge.

After affirming the trial court’s modification of a divorce decree which (1) increased support payments for one child and (2) ordered recovery of one-half movant’s attorney fee, the Eastern District of the Court of Appeals certified the cause to this court because its “ . . . examination of the recent decisions indicates that there is a conflict in the law as to whether it is essential there be a showing of financial need on the part of the spouse or former spouse seeking an award of an attorney’s fee in a proceeding under the Dissolution of Marriage Act, §§ 452.300-452.415, RSMo 1969 [1973 Supp.], or whether need is merely one factor to be considered by the court in exercising a sound discretion to arrive at a just determination.”

Alan and Eileen Kieffer were divorced in 1973 with custody of their two year old child, Connie, being awarded to the mother with reasonable rights of visitation awarded the father. The latter was to pay $30 per week toward support of the child.

In 1976, Eileen sought by the motion, yet involved, to have the child support payments increased to $60 a week and for recovery of attorney fees incurred by her in the proceeding. After a hearing wherein both parties testified and their financial positions presumably were accurately disclosed, the trial court increased child support to $200 a month (something less than $50 a week) and further ordered Alan to pay $250 to Eileen’s attorney, which represented one-half his fee of $500. The appeal involves both awards and each will be considered in the order presented.

Believing that the record presented sustains the opinion of the Eastern District upholding the modified child support, we incorporate herein portions thereof without benefit of quotation marks.

The evidence disclosed that by reason of inflation and the child’s attainment of school age the costs of her needs had risen substantially. Eileen’s total monthly expenses had increased from $550 at the time of the divorce to $865 on the date of the modification hearing, some three years later. The child’s present monthly expenses were shown to be $342, without proration of household expenses.

Eileen’s present assets included $4,500 in cash and deposit accounts, an automobile valued at $2,000 and a $30,000 house subject to an indebtedness of $2,800. Her cash and deposit accounts had been shown to be $3,000 on the date of the divorce and explanation was given that because of year-end expenses and emergencies the same now had been increased to $4,500.

Alan, during the period of interest, had seen his annual salary increase from $15,000 to $20,000. His net bi-weekly earnings are now $526 and his monthly expenses are $1,210. He has remarried and his present wife was the source of jointly-held $7,745 savings and checking accounts. Other assets included a 1976 Buick given to him by his mother, a 1973 Chevrolet purchased by his wife before their marriage, a residence in Bettendorf, Iowa, where they live and savings bonds worth $361.

The trial court, along with other evidence, took judicial notice of the increased cost of living from the time of the decree to its modification as evidenced by its interrogation of the parties.

Alan first contends that there was a failure of proof under § 452.370.1, which declares that modification is authorized only where there has been a “ . . . showing of changed circumstances so substantial and continuing as to make the terms [of the decree] unreasonable.” The burden of proving the same rests with movant, Sifers v. Sifers, 544 S.W.2d 269, 270[1] (Mo.App. 1976); but, the fact a child has grown older and has more needs, aggravated by the increase in cost of living, has been held to be sufficient to increase an award of support due to changed circumstances. McGinley v. McGinley, 513 S.W.2d 471, 473[4] (Mo. App.1974). Similar changed conditions appear in the instant case. Argument is made to the contrary in reliance upon Plattner v. Plattner, 567 S.W.2d 139 (Mo.App.1978), wherein modification was denied. Such reliance is ill-founded because in Plattner movant relied upon uncorroborated and varying estimates, instead of producing clear and unequivocal evidence that the expense of supporting the child had increased substantially. Movant therein relied on general propositions that the needs of growing children increase with age and that inflation was a contributing factor. The records as made are distinguishable and the argument now presented is rejected.

Secondly, we consider the propriety of awarding an attorney’s fee, which is an issue less easily resolved because decisions in the area are obviously discordant. Some cases have held that an award of an attorney’s fee in either a dissolution or modification case is appropriate only where there is evidence of the spouse’s need and lack of sufficient means to finance the litigation [Johnston v. Johnston, 573 S.W.2d 406 (W.D.Mo.App.1978); Ortmann v. Ortmann, 547 S.W.2d 226 (E.D.Mo.App.1977); Dillon v. Dillon, 559 S.W.2d 81 (S.D.Mo.App.1977)], while others have held that “need” is only one factor to be considered. [Ebinger v. Ebinger, 573 S.W.2d 738 (E.D.Mo.App. 1978); Gross v. Gross, 557 S.W.2d 448 (W.D.Mo.App.1977); Eden v. Eden, 558 S.W.2d 394 (S.D.Mo.App.1977) (award is within sound discretion of the trial court)]. Recently, this Court in Dyche v. Dyche, 570 S.W.2d 293 (banc 1978), emphasized that the award of an attorney fee was not premised on an award of support or maintenance or any other issue, such as custody, but upon the separate and distinct provisions found in § 452.355, which are:

The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

(Emphasis added.)

Any effort to reconcile or distinguish cases in this area would be rather futile and lead to no advantage, particularly because it is difficult to delineate why courts of this state have found the wording of the statute to be unclear. Nevertheless, they have.

Where an ambiguity exists, in fact or by construction, it is proper to consider the history of the legislation, the surrounding circumstances and the ends sought to be accomplished. State ex rel. Zoological Park Subdistrict of City & County of St. Louis v. Jordan, 521 S.W.2d 369 (Mo.1975); Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127 (Mo.1974). While doing so, it is proper to consider the “words” used in their plain and ordinary meaning in an effort to ascertain the true intent of the General Assembly. State ex rel. Union Electric Co. v. Goldberg, 578 S.W.2d 921 (Mo. banc 1979); State ex rel. Dravo Corp. v. Spradling, 515 S.W.2d 512 (Mo.1974); Missouri Pacific R.R. v. Kuehle, 482 S.W.2d 505 (Mo.1972).

We reaffirm our holding in Dyche v. Dyche, supra, with some feeling that the problem posed was answered therein, but recognizing that others have limited that holding to a declaration that an award of an attorney fee is not an “incident” of other orders entered, we consider the question further.

A part of the Uniform Marriage and Divorce Act, from which § 452.355 was taken, varies only slightly from the Missouri statute, but the difference in wording may be significant to the resolution of this case. The uniform act states.that “[t]he court from time to time after considering the financial resources of both parties” may award reasonable fees. The General Assembly changed such wording in the Missouri statute to read that “[t]he court from time to time after considering all relevant factors including the financial resources of both parties” may award reasonable fees.

The term “including” is sometimes ambiguous and its meaning may vary according to the context of the statute in which it appears. St. Louis County v. State Highway Commission, 409 S.W,2d 149, 153 (Mo.1966); Union Electric Co. v. Cuivre River Co-operative, Inc., 571 S.W.2d 790, 794 (Mo.App.1978). However, generally the term is one of enlargement rather than limitation. St. Louis County v. State Highway Commission, supra.

With these guidelines in mind, it would appear that our legislature intended that the court consider factors in addition to the financial resources of the parties. This is apparent especially in light of the change in wording it incorporated, rather than adhering strictly to the uniform act. If this change in wording were not meant to clarify that the judge is to consider all relevant factors rather than limiting his consideration only to the financial resources of the parties, then the additional words would have no meaning, a result to be avoided. Jones v. Jones, 376 S.W.2d 210 (Mo. banc 1964).

The notes to § 313 of the UMDA, 9 U.L.A. 177 (1979), prepared by the Commissioners on Uniform State Laws, state its purpose to be to authorize payments of costs and a reasonable fee by one party to the other party’s attorney “if the court, after considering the financial resources available to both parties, determines the order to be necessary.” Even if the General Assembly had not changed the wording of the statute, it still could be argued persuasively that financial inability of the spouse to pay an attorney’s fee is not a requirement for the awarding of the fee. The wording of the statute, in either form, refers to consideration of the financial resources of each party. Neither the statute nor the Commissioners’ notes require that one party must be unable to pay the cost of litigation. Rather, by using the words they did, the Commissioners and the Missouri legislature allowed the trial judge considerable discretion in awarding attorneys’ fees.

In this case respondent possessed sufficient means to prosecute her motion to modify. The evidence seems clear as well reference appellant’s ability to pay the $250 fee assessed against him. Because the statute permits the court to consider all relevant factors in assessing attorney fees, it may be that the trial court believed that in view of the financial resources of the parties, appellant could more easily absorb the $250 cost than respondent could absorb all of the $500 cost. It also may have considered relevant respondent’s testimony that after the filing of the motion to modify, but before the hearing, appellant told respondent he was unwilling to pay any more child support than he was then paying, thus forcing respondent to resort to the courts in order to obtain any support increase. The record provides this Court no clue as to all of the factors the trial court considered.

However, § 452.355 does make clear that the financial resources of the parties must be considered. Other factors are to be taken into account as well. How they balance will vary from cases to case and certainty of result cannot be projected. Only when the trial court is shown to have abused the broad discretion with which it is vested in this regard should its award (or orders) be overturned. No such showing was made here.

The judgment is affirmed.

All concur.

      . The opinion of the Eastern District was written by Weier, C. J., wherein he clearly identified the “conflicts” by reference to numerous cases from each of the appellate courts (districts) and fully articulated the basic problem.


author: COOPER, Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellee, v. Virginia TAYLOR, Appellant.
    Supreme Court of Tennessee.
    Nov. 26, 1979.
    Rehearing Denied Dec. 31, 1979.
    T. Arthur Jenkins, Manchester, for appellant.
    Thomas H. Peebles, III, Nashville, for appellee.
   OPINION

COOPER, Justice.

Virginia Taylor has appealed from a judgment entered in the Circuit Court of Coffee County denying her benefits for injuries to her low back allegedly caused by a fall on the premises of her employer.

The suit arose from an alleged accidental injury sustained by Mrs. Taylor on June 18, 1977, while in the course of her employment as a cook for the Cracker Barrel Restaurant. Liberty Mutual Insurance Company, the workmen’s compensation insurance carrier for Cracker Barrel, initially accepted the claim as compensable and paid temporary total disability benefits to Mrs. Taylor. Subsequently, appellee stopped paying benefits and brought the present action seeking a judicial determination of its liability, if any, under the workmen’s compensation act. See T.C.A. § 50-1018. The trial judge denied benefits to Mrs. Taylor on the grounds (1) that she had intentionally misrepresented her physical condition in making application for employment, and (2) that the permanent disability claimed by her was not causally related to the injury she sustained while working for the Cracker Barrel.

Appellant insists there is no material evidence to sustain the trial judge’s findings, either as to the issue of misrepresentation or the lack of causal relationship between her disability and her on-the-job fall. Appellant also takes issue with the trial judge’s action in permitting appellee to amend its complaint to charge appellant with falsely answering questions on her employment application.

As to the latter contention of appellant, Rule 15.01 of the Tennessee Rules of Civil Procedure provides that leave to amend pleadings shall be freely given by the trial judge, where the amendment is necessary to do justice. The amendment inthe instant case was necessary to bring before the Court an issue which, if found in favor of the pleader, would be conclusive of the case; consequently, we find no abuse of discretion on the part of the trial judge in allowing the amendment. See Branch v. Warren, 527 S.W.2d 89 (Tenn.1975); Derryberry v. Ledford, 506 S.W.2d 152 (Tenn. App.1973).

As to the other assignments, the more obvious basis of denial of benefits to appellant was the finding that appellant misrepresented the state of her health and her medical history in making application for employment, and it is this basis which will be discussed in this opinion.

In Federal Copper & Aluminum Company v. Dickey, 493 S.W.2d 463 (Tenn. 1973), this court held that three factors must be present before a false statement in employment application will bar recovery of workmen’s compensation benefits. First, the employee must have knowingly and wil-fully made a false representation as to her physical condition. Second, the employer must have relied upon a false representation and this reliance must have been a substantial factor in the hiring. Third, there must have been a causal connection between the false representation and the injury. The causal connection required is a factual showing that the injury upon which the workmen’s compensation claim is based is causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer. See Federal Copper & Aluminum Company v. Dickey, supra. Except in the most obvious cases, such causation must be established by expert medical testimony. Cf. Floyd v. Tennessee Dickel Company, 225 Tenn. 65, 463 S.W.2d 684 (1971).

In the instant case the appellant, in making application for employment with Cracker Barrel, stated she had no physical defects and that she had never received an injury or “physical compensation.” In truth, she had had three prior claims for injuries to her back, each allegedly caused by a fall on premises of an employer. Each of the injuries was treated by a different doctor and appellant never told the treating physician of an earlier injury. In each instance, the treating physician found that appellant had a congenital defect in her back known as spondolythesis and, in each instance, the physician concluded that the condition had been aggravated by appellant’s reported fall. One claim, that against the Hat Corporation of America, resulted in appellant being paid benefits under the workmen’s compensation act for permanent partial disability of fifty percent to the body as a whole. A second claim for workmen’s compensation benefits — this being against the Coffee County General Hospital — was pending in the Chancery Court of Coffee County at the time appellant made application for employment by Cracker Barrel. Appellant subsequently received benefits in that suit for a permanent partial disability of twenty-five percent to the body as a whole.

Larry Kilgore, who was the manager of the Cracker Barrel Restaurant when appellant applied for employment, testified that he would not have employed appellant if he had known appellant had a congenital back defect and had received compensation for permanent disability to the body as a whole.

The trial judge found as a matter of fact that:

[T]he employee in this case knowingly and wilfully made a false representation as to her physical condition, the employer relied upon said false representation and that this reliance was a substantial factor in the hiring, and that there was a causal connection between the false representation and the injury, i.e., the injury upon which the claim is based is found to have been causally related to the employee’s prior injuries or physical condition which were wrongfully concealed from the employer, in this instance back injuries.

These findings by the chancellor cover the factors which this court has held must be present before a false statement in an employment application will bar recovery of workmen’s compensation benefits. See Federal Copper & Aluminum, supra: Quaker Oats Co. v. Smith, 574 S.W.2d 45 (Tenn. 1978).

Appellant does not question the trial judge’s finding that she materially misrepresented her state of health and medical history in her application. She does, however, take issue with the finding that the employer relied upon the misrepresentations, pointing to testimony of appellant that the assistant managers of the Cracker Barrel knew of her “back problems.” As to the testimony by ¿ppellant on this issue, the trial judge had the following to say:

The Court does not believe the employee’s testimony concerning alleged statements of Mr. Luna and/or an individual named Fox on the basis of her demeanor, obviously false testimony and false statements contained in the applications, and her general appearance as to credibility while testifying.

In a workmen’s compensation case, where the issue on appeal is basically one of fact, this court does not weigh evidence, nor decide the credibility of witnesses. Those are issues for the trial judge. General Shale Products Corp. v. Casey, 202 Tenn. 219, 303 S.W.2d 736 (1957). Our review is limited to a determination of whether there is any material evidence in the record to support the trial judge’s findings. If there is, we are bound to accept them. Jones v. Lenoir City Car Works, 216 Tenn. 351, 392 S.W.2d 671; General Shale Prod. Corp. v. Casey, supra.

In our opinion, the evidence set out above is material and supports the finding of the trial judge that appellant knowingly and wilfully misrepresented her physical condition in making application for employment by the Cracker Barrel, that her employer relied on the misrepresentation in giving her employment, and that there was a causal relation between the misrepresentation and the injury that is the predicate of the present action.

The judgment entered in the trial court is affirmed. .

Appellee has moved this court for a declaration that the appeal in this case was frivolous and for damages provided in T.C.A. § 27-124. We agree with appellee that the appeal had no reasonable chance of success. The material issues raised by the appeal were issues of fact and there clearly was material evidence to support the trial judge’s findings on those issues. We hold, therefore, that the appeal was frivolous and that appellee is entitled to damages. See Davis v. Gulf Insurance Group, 546 S.W.2d 583 (Tenn.1977). The damages will be fixed by the trial judge on remand of the cause and they will consist of the court costs and all of appellee’s reasonable expenses, including attorney’s fees, incident to the appeal.

Affirmed and remanded.

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


author: BROOKS McLEMORE, Special Justice.

text:
    Darrell ARTHUR et al., Plaintiffs-Petitioners, v. LAKE TANSI VILLAGE, INC., Defendant-Respondent.
    Supreme Court of Tennessee.
    Dec. 10, 1979.

      Charles G. Taylor, III, Knoxville, for plaintiffs-petitioners; Ayres, Parkey, Skaggs & Ware, Knoxville, of counsel.
    Thomas E. Looney, Marsha L. K. Selec-man, Crossville, for defendant-respondent; Looney, Looney & Conner, Crossville, of counsel.
   OPINION

BROOKS McLEMORE, Special Justice.

This case involves the question of whether there exist implied restrictive covenants running with the land which prohibit the defendant-respondent, hereinafter called the defendant, from removing or relocating certain recreational facilities, namely; (1) a marina which is to be relocated from the north shore of Lake Tansi, to the south shore, which would place a modern marina equipped to moor and service some 80 boats along a dam in close proximity to plaintiffs’ property; (2) a sand beach which has been destroyed, but which according to the defendant’s president, will be re-established near its original location; (3) a golf course, 13 holes of which are to be relocated; some of these are lakeside holes which are to be moved away from the lake; and, (4) an airstrip which was closed because of the inability of the defendant to meet FAA regulations in regard to its operation, as well as the defendant’s failure to obtain air rights so takeoff and landings could be accomplished in both directions. The space made available by the relocation of 13 holes of the golf course and the abandonment of the air strip is to be subdivided and sold for homesites. The sand beach space is to be reserved for future development. There are no stated plans for the present marina site.

The trial court and the Court of Appeals both found in favor of the defendant.

Darrell Arthur, Jack Hickey, Charles Taylor, Sam Hamric and their wives, plaintiffs-petitioners, hereinafter called plaintiffs, petitioned this court and certiorari was granted to review that action. The suit was brought individually and not in a representative capacity.

We affirm the judgment of the Court of Appeals.

During a portion of the year 1963, and prior thereto, Cosby Harrison and wife operated considerable acreage including the Lake, then named Lake Harrison, in the business of renting property for transient guests. Harrison operated the property as a resort area and did not sell any homesite property as he was not interested in that type of development.

By deeds dated March 1, 1963, and September 2, 1963, Cumberland Plateau Resorts, Inc., a Tennessee corporation, the common grantor of all property which is the subject matter of this lawsuit, acquired approximately 2,660 acres of improved and unimproved property from Cosby Harrison and wife; this included among other things, Lake Harrison, a nine-hole golf course which was located partially along the shore of the lake, a marina, an airstrip and a sand beach.

Cumberland Plateau Resorts, Inc., whose main object was the sale of primary and secondary homesites, changed the name of the lake to Lake Tansi, platted a relatively small portion of the property and placed of record in the Cumberland County Register’s Office various subdivision plats depicting certain portions of the property adjacent to and surrounding the lake. These subdivision plats depicted some of the various lots then for sale, parts of the original nine-hole golf course, the airstrip, the marina, and the general area for the proposed second nine holes of golf. The number of lots for sale in 1963 consisted of approximately 686 of which 133 were lake front lots some of which were accessible only by boat. The property owned by plaintiffs is from this group of lots. Copies of these plats were in the sales office at Lake Tansi; however, none of plaintiffs’ lots are shown on plats that show the recreation facilities mentioned.

Certain brochures describing and showing pictures of the recreational facilities at Lake Tansi were available in the sales office and were used in sales.

The plaintiffs acquired their respective homesites either directly or by succession of title from Cumberland during a period beginning on May 20,1963, and ending March 30,1968. From the deeds filed in the stipulation, it appears that all of the lots owned by plaintiffs except three, were conveyed by Cumberland either to the plaintiffs or others in their chain of title by August 22, 1963; the three lots were conveyed by Cumberland to Taylor by deed dated August 16, 1966. Though all the deeds are not in the record, it appears Arthur owns one and one-half lots, Hamrick owns two which adjoin, Hickey owns one and Taylor owns five in a block. All of plaintiffs’ lots are in the same general area and all are lake-front lots. None of these lots adjoin, touch or are close to, the marina, the airstrip, the sand beach or the golf course.

Plaintiffs’ deeds did not mention any of these facilities; however, they were permitted to use these facilities for an annual fee. Apparently, the general public could use all the facilities upon payment of appropriate charges. Later, Cumberland added the additional nine holes to the golf course; some of these holes were placed along the lake shore.

All the deeds filed in the. stipulation concerning property purchased by the plaintiffs, except two, describe the property by lot number “as shown by plat no. 3 of Tansi Resort Sub-division, which plat is duly recorded in Plat Book No. 1, Page 169, Register’s Office, Cumberland County, Tennessee.” As to the two exceptions, one deed also refers to a revised plat found at Plat Book 1, Page 176 and a second deed refers to Plat Book 1, Page 194. All of the deeds recite that “this conveyance is made subject to restrictive covenants, limitations and conditions contained in the restrictive covenants in the Tansi Resort Sub-division, dated the 5th day of April, 1963, of record in Deed Book No. D-62, Page 30, Register’s Office, Cumberland County, Tennessee.” The recorded restrictions above mentioned are not a part of the record, although there are certain property reports made by the defendant pursuant to federal statute which do show restrictions as to Southlake 3, that portion of Lake Tansi Resort embracing plaintiffs’ lots. The first restriction recites, “the lots shall be used exclusively for residential purposes except those lots designated as business or commercial areas.”

In 1968, Lake Tansi Village, Inc., was incorporated in Tennessee; it then purchased on May 14, 1968, all of the Lake Tansi property from Cumberland except those lots sold to third persons like the plaintiffs and their predecessors. Thereafter, in December of 1971, new management assumed control when all the stock of Lake Tansi Village, Inc. was purchased by National American Corporation. By virtue of this stock purchase and a subsequent merger with an Alabama corporation, which was also a subsidiary of National American, the defendant became an Alabama corporation licensed to do business in Tennessee. Lake Tansi Village, Inc., is a wholly owned subsidiary of National American Corporation. An additional 1780 acres of land were acquired from third parties. Shortly thereafter, a land planner was hired and an overall plat was developed by the planner; this plat reflected, among other things, the planner’s recommendation to relocate part of the existing 18 holes of golf and to eliminate the landing strip. The overall plat consists of 3,327.45 acres, subdivided into 9,655 residential lots and in addition, several hundred acres of recreational facilities. The overall plat is not recorded as one, but was recorded as approximately 50 smaller plats. The large plat was reduced to printing press size and distributed by the tens of thousands in 1974. An enlargement of the overall plat was, and still is, displayed in the Sale Office.

Beginning in 1972, the defendant filed several property reports under the Interstate Land Sales Full Disclosures Act. The report dated April 30,1972, lists recreational facilities that were available at that time. This list included the 18-hole golf course, however, the landing strip was not listed as being available for use, nor was the sand beach or marina included among the facilities listed. This report contained the statement, “All presently contemplated facilities are complete.” A second property report, effective on May 29, 1973, lists the same facilities as in the 1972 report and similarly does not mention a landing strip, sand beach and marina. This property report adds the following statements: “At present, there is a grass runway for small planes. Because of its infrequent use, seller plans to abandon such runway at a future date and add such land to its residential development . . . Sellers reserve the right to relocate certain holes of the golf course, however, such relocation will not take place until replacement holes have been constructed and ready for play.” A report of July 10, 1973, listed the same facilities as did the second report and contained the above-quoted statements. The most recent property report, dated December 28, 1976, contains an expanded list of facilities available and proposed. It reports the plan to close the airstrip and it also contains a disclosure regarding the right to relocate various holes of the golf course, as well as the pro shop, and to develop the property where they exist. An assurance is given that an 18-hole golf course and pro shop will always be available for property owners. “Lake Tansi and boat marina” are listed; the sand beach is not.

On November 21, 1973, the defendant inserted an advertisement in a local newspaper describing certain of the facilities. The airstrip is not mentioned. This advertisement contained the following:

FOREVER IS A LONG TIME. . . .
But that’s how long you & your family will be able to enjoy the facilities of Lake Tansi Village.

In the early part of 1977, the plaintiffs became aware of the defendant’s intention to relocate certain holes of the golf course away from the lake and to abandon the present marina and build a new marina in close proximity to their lots. This suit for injunction, or in the alternative, damages, resulted. Plaintiffs have filed three assignments of error. They assign as error, first, that the evidence preponderates in favor of their insistence of implied covenants and second, that the defendant is estopped from denying the existence of such covenants. By their third assignment of error, plaintiffs insist that the Court of Appeals erred in holding that plaintiffs could not rely upon plats not referred to in their deeds to establish the existence of implied restrictive covenants.

Parenthetically, we note that it would be difficult to read this record without perceiving that the real concern of the plaintiffs is the relocation of the marina near their lots with all the attendant noise, wakes, pollution and impediment of their view of the lake.

In beginning our consideration of the assignments of error, we quote with approval from the Court of Appeals’ opinion prepared by Judge Goddard:

As a preliminary to addressing the assignments of error, we observe that although our courts recognize the validity of restrictive covenants they are not favored. This Court in a recent case, Waller v. Thomas, 545 S.W.2d 745, at page 747 (Tenn.App.1976), said:
Our courts have long recognized several established rules of construction regarding restrictive covenants, which can be stated as follows: Although the law recognizes the validity of restrictive covenants, they are not favored because such covenants are in derogation of the unrestricted enjoyment of the fee. Therefore, restrictive covenants are to be strictly construed and will not be extended by implication and any ambiguity in the restriction will be resolved against the restriction. See Emory v. Sweat, 9 Tenn.App. 167 (1927); Carr v. Trivett, 24 Tenn.App. 308, 143 S.W.2d 900 (1940); Lowe v. Wilson, 194 Tenn. 267, 250 S.W.2d 366 (1952); Hamilton v. Broyles, 57 Tenn. App. 116, 415 S.W.2d 352 (1966).
With this background we turn to the assignments of error and conclude that insofar as implied covenants are concerned the plaintiff may prevail only on a showing of one of the following: (Í) implication by necessity, (2) implication by conveying property with restrictions under a general plan or scheme of development, (3) implication by reference to a. plat.
As to the first, the plaintiffs rely upon a case decided by the Supreme Court of Texas, Danciger Oil & Refining Company of Texas v. Powell, 154 S.W.2d 632 (1941), which incidentally, did not find a restrictive covenant by implication. There the Court said (at page 635):
In the outset it should be noted that when parties reduce their agreements to writing, the written instrument is presumed to embody their entire contract, and the court should not read into the instrument additional provisions unless this be necessary in order to effectuate the intention of the parties as disclosed by the contract as a whole. An implied covenant must rest entirely on the presumed intention of the parties as gathered from the terms as actually expressed in the written instrument itself, and it must appear that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it, and therefore omitted to do so, or it must appear that it is necessary to infer such a covenant in order to effectuate the full purpose of the contract as a whole as gathered from the written instrument. It is not enough to say that an implied covenant is necessary in order to make the contract fair, or that without such a covenant it would be improvident or unwise, or that the contract would operate unjustly. It must arise from the presumed intention of the parties as gathered from the instrument as a whole. 21 C.J.S., Covenants, § 9, p. 888; 13 C.J. 558; 17 C.J.S., Contracts § 328; 15 C.J. 1214; 21 C.J.S., Covenants, § 14; 14 Amer. Jur. 490; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890; Grass v. Big Creek Development Co., 75 W.Va. 719, 84 S.E. 750, L.R.A.1915E, 1057. However, covenants will be implied in fact when necessary to give effect to the actual intention of the parties as reflected by the contract or conveyance as construed in its entirety in the light of the circumstances under which it was made and the purposes sought to be accomplished thereby. See Property Interest Created by Lease, by A. W. Walker, Jr., Professor of Law, University of Texas, 11 Texas Law Review 402.
Upon viewing the conveyances we cannot say that the restrictions insisted upon by the plaintiffs were so clearly within the contemplation of the parties that they deemed it unnecessary to express them. Consequently, the plaintiffs may not prevail under this theory.

We believe that the foregoing rationale and statement of the law succinctly and adequately deals with the theory of implication by necessity as it applies to the instant case.

In assignment two, plaintiffs focus their argument upon the implication of restrictive covenants stemming from the defendant’s development of this property along the lines of a general plan or scheme. Ways of establishing such a plan or scheme are discussed at 20 Am.Jur.2d, Covenants § 175 (1965):

“One of the most common forms of imposing building restrictions is by the establishment of a general building plan of improvement or development covering a tract divided into a number of lots. Such a plan may be established in various ways, such as by express covenant, by implication from a filed map, or by parol representations made in sales brochures, maps, advertising, and oral statements on which the purchaser relied in making his purchase. It is said that the most complete way is by a reciprocal covenant whereby the grantor covenants to insert like covenants in all deeds out of the common development, and that other ways may consist of the grantor’s selling the lots upon representations to the individual purchasers that like covenants will be inserted in the grantor’s deeds to others, for the common benefit, or the grant- or’s pursuing a course of conduct indicating a neighborhood scheme, leading the several purchasers to assume its adoption and the adherence to it by such conduct.
As heretofore shown, where such a plan is created, the conveyance of a lot or lots therein raises an implied covenant restricting the remaining lots. . . . ” See also 7 Thompson, Real Property § 3159 (1962).

The doctrine of reciprocal negative easements was recognized and applied by this court in Land Developers, Inc. v. Maxwell, 537 S.W.2d 904 (Tenn.1976). This doctrine involves the general plan or scheme of development theory. There, the restrictions all involved limiting the property previously conveyed to residential development.

The Court explains the manner in which negative reciprocal easements, a form of restrictive covenants, are to be applied. Justice Harbison speaking for the court said:

“. . . the doctrine of negative reciprocal easements, while well recognized in the law of property, is to be applied with great care. Thus the Court of Appeals of Kentucky, while recognizing the doctrine, stated:
‘We think it quite apparent that the doctrine ought to be used and applied with extreme caution, for it involves difficulty and lodges discretionary power in a court of equity, in a degree, to deprive a man of his property by imposing a servitude through implication.’ McCurdy v. Standard Realty Corp., 296 Ky. 587, 175 S.W.2d 28, 30 (1943).’”

If restrictive covenants enforceable by the plaintiffs prohibiting the abandonment of the air strip and the relocation of the marina, the sand beach and a portion of the golf course arising from a general plan of development do exist; these arose at the time the plaintiffs or their predecessors in title purchased their property. The Chancellor, rather than finding a plan in existence at the time plaintiffs purchased, found, “that the defendant, for the past several years has put into effect an overall development plan, which includes the alteration or relocation of certain golf holes, a sand beach, and a boat marina, together with the abandonment of a grass landing strip for small aircraft.” The Court of Appeals found specifically that there was no general plan of development in the early stages when plaintiffs or their predecessors purchased. The statement of the Court of Appeals in part is, “. .in the early stages the development was like Topsy and no real general plan emerged until after the merger was accomplished and a real estate consultant employed.” We agree with this finding and therefore, plaintiffs can obtain no relief under this theory.

To aid in the disposition of plaintiffs’ third assignment of error with respect to implication by reference to a plat, we quote with approval from the opinion of the Court of Appeals:

“As to the last point, plaintiffs insist that because certain recorded plats show the facilities, they have acquired a property right in them under the authority of Moore v. Queener, 62 Tenn.App. 490, 464 S.W.2d 296 (1970). The problem with this theoryj however, is that the plats to which the plaintiffs’ deeds refer are not a part of the record. Moreover, we gather from plaintiffs’ briefs that the facilities are not shown upon these plats because counsel argues that the defendant should be bound by other plats which actually show the facilities. Plaintiffs maintain that this was necessary because the development is so large that it was impractical, if not impossible, to show all the various subdivisions comprising the resort on a plat the size of which is suitable for recording. We concede that this may be true. However, the rationale behind implying a property right in cases like Moore is because the plat is incorporated by reference in the deed of conveyance. Obviously a plat to which no reference is made cannot be incorporated in a deed.”

Plaintiffs’ third assignment of error in this court takes issue with the foregoing reasoning and holding of the Court of Appeals. Plaintiffs complain that the Court of Appeals has, in effect,, held that the plaintiffs may not rely upon recorded plats showing the golf course, marina and air strip because plaintiffs’ lots do not appear on the same plats. We find no merit to this assignment. As earlier stated, plaintiffs’ lots do not appear on the plat with the recreational facilities mentioned and plaintiffs’ deeds do not refer either to the facilities or the plats of record that show these facilities. The opposite is true in the case of McCleary et al. v. Lourie, 80 N.H. 389, 117 A. 730 (1922) upon which the plaintiffs heavily rely.

We interpret the holding of the Court of Appeals on this point to be that a plat may be utilized in establishing implied restrictive covenants if the deed of the party seeking to impose the restriction refera to the plat. This holding is in accord with established legal principles. See, e. g., 25 Am.Jur.2d, Easements and Licenses § 26 (1966) where it is said:

Generally, where property sold is described in the conveyance with reference to a plat or map on which streets, alleys, parks, and other open areas are shown, an easement therein is created in favor of the grantee. . . . But such an easement does not arise unless the conveyance refers to the map or plat which indicated the way, park, or other area in which an easement is claimed; this requirement is not obviated by the fact that the way is shown on a recorded plat [Emphasis supplied.]

In Moore v. Queener, supra, plaintiffs’ deed specifically referred to a plat upon which the easement he claimed appeared.

We find no merit to this assignment of error.

We turn now to plaintiffs’ contention that the defendant is estopped from denying the existence of restrictive covenants.

Plaintiffs Arthur, Taylor and Hambric all testified that they saw the maps which depicted the golf course and the marina in the Sales Office prior to their purchase; however, the testimony as to plaintiffs’ reliance on these maps and brochures is confusing. Hickey did not testify. There is no solid evidence of actual promises of permanency being made to plaintiffs by the original grantor or his agents, Plaintiffs contend that defendant’s actions in distributing brochures, advertising in the newspaper, and making statements in its property reports all would estop the defendant, if not initially when plaintiffs purchased, then subsequently because of the improvements and maintenance of their property after such acts occurred. As to this contention, we point out as did the Court of Appeals, that the plaintiffs purchased their property long before the defendant ever assumed control of the resort and before it distributed brochures, advertised in the local newspaper, or filed its property reports, and there is no satisfactory proof that the improvements or continued maintenance were done in reliance upon any acts or statements of the defendant. Therefore, an essential element of es-toppel, action by one party in reliance upon misstatement by another to his detriment, is not present.

Estoppel in pais has been defined in this state as:

“Estoppel in pais is an estoppel that does not arise from a record or written instrument, but arises from the conduct or silence of a party and is sometimes referred to as equitable estoppel. In the true sense, all matters of estoppel arise in equity, for the purpose of the existence of the doctrine is to prevent inconsistency and fraud resulting in an injustice. When a man has been misled by the untruth propounded by another, and acted to his detriment in reliance upon the misrepresentation, the misleading party will be estopped to show that the true facts are contrary to those he first propounded.” Duke v. Hopper, 486 S.W.2d 744, 748 (Tenn.App.1972). [Emphasis supplied.]

Even if implied restrictive covenants arose at the time of purchase, the restrictions cannot be imposed against the defendant, a purchaser for value, unless the evidence establishes that the defendant had notice of the restrictions. This general rule set forth in 28 Am.Jur.2d, Estoppel and Waiver, 117, page 776, is as follows:

As a general rule, an estoppel of a grant- or runs against his grantee. Obviously, estoppels affecting grantees often involve the running and binding effect of covenants ... It has been held that where an estoppel works on an interest in land, it becomes a muniment of the title, and when the owner conveys it he necessarily does so subject to the estoppel in the hands of his grantee. Clearly, a grantee is in privity with his grantor to the extent that he is bound by an estop-pel in pais against the grantor if he had notice of the facts from which the estop-pel arose at the time of the grant, but, according to the prevailing rule, a bona fide purchaser for value and without notice of an estoppel against his grantor is not bound by the estoppel . . .

In Maxwell, supra, this court, at page 913, said:

“Of course, it is well settled, in Tennessee as elsewhere, that an owner of land is not bound by covenants restricting the use of the land by his remote grantor, when such covenants do not appear in the owner’s chain of title and when he had no actual notice of the alleged covenant at the time he acquired title. See Yates v. Chandler, 162 Tenn. 388, 38 S.W.2d 70 (1931) ...”

Plaintiffs contend that because the facilities were present on the ground and in use, and because of brochures used by former owners, and because of the recorded plats previously mentioned, the defendant had notice of restrictive covenants.

When the history of this development is considered, knowledge by the defendant that there was in existence in 1972 a golf course, a marina, a sand beach and a landing strip, none of which adjoined or were close to plaintiffs’ lots, would not put the defendant on notice that there were any agreements between the original grantor and the plaintiffs prohibiting the relocation of the facilities nor the abandonment of the landing strip. The fact that a purchaser may know about certain characteristics of the land purchased will not necessarily impute knowledge as to any implied restrictions. In Maxwell, supra, it was found that the original grantor intended for all “Mimosa Heights” property to be residential and therefore, remaining property that had passed into the hands of others who were not purchasers for value was burdened by reciprocal negative easements, i. e., they stood in the same position as would the original grantor. However, it was held that in the hands of a purchaser for value, a portion of the same remaining property would not be subject to the restrictions though the purchaser knew of the recorded restrictions as to property previously sold. The court found that such knowledge was a far cry from charging him with knowledge of unrecorded, oral, or implied easements or restrictions covering unsold acreage.

The record is devoid of any proof of actual knowledge of defendant of any implied restrictive covenants running with plaintiffs’ lots when the defendant purchased the development. On the other hand, there is convincing evidence in the record that management as far back as the purchase by Cumberland Plateau Resorts, Inc., did consider, and “there was talk of,” moving some of the holes on the golf course, moving the marina and abandoning the airstrip, and that management never knew of or considered that there was any prohibition, express or implied, against altering or relocating the facilities. We conclude that the defendant had no notice of implied restrictive covenants and is not estopped as far as plaintiffs are concerned.

For the foregoing reasons, all assignments of error are overruled and the judgment of the Court of Appeals is affirmed. Costs are taxed against plaintiffs, and sureties.

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


text:
    STATE of Tennessee, Respondent, v. Robert Lee BARKSDALE, Petitioner.
    Supreme Court of Tennessee.
    Dec. 10, 1979.
    Walker Gwinn, Edward G. Thompson, Shelby County Public Defender, Memphis, for petitioner.
    Michael J. Passino, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen. and Reporter, Nashville, for respondent.
   COOPER, Justice.

OPINION

Robert Lee Barksdale was convicted in the Criminal Court of Shelby County of rape and was sentenced to serve thirty years and twenty-nine days in the state penitentiary. The conviction was affirmed by the Court of Criminal Appeals. We granted certiorari to review the holding by the Court of Criminal Appeals that questions asked by the prosecution of a psychiatrist concerning the dangers of the defendant’s possible future conduct were not error and, if error, were not prejudicial to the appellant. We have concluded that the questions were improper and were prejudicial. Accordingly, we reverse the conviction and remand the cause for a new trial.

It is undisputed in the record that appellant committed the act which led to his indictment for rape. Appellant’s sole defense to the charge was insanity at the time of the act. His proof on this issue consisted of the testimony of Dr. Gene Abel, a professor of psychiatry at the University of Tennessee and a staff psychiatrist at the Memphis Mental Health Institute. Dr. Abel testified that defendant suffers from a mental disease which manifests itself in the form of extreme sexual deviation, and that he was unable to control himself when he committed the rape. During the State’s cross examination, the following occurred:

Q. If this jury should find this man not guilty by reason of insanity, can you assure us that he won’t go out this afternoon and do it again?
A. MR. SCHATZ: Your Honor, if the Court please, I think that is improper, and I would —(Interrupted)
MR. AXLEY: He’s come as an expert, Your Honor, and this is cross-examination.
MR. SCHATZ: If the Court please, though there is an instruction that will be given as the Court well knows, and as Mr. Axley knows that would cover that event should it come up.
THE COURT: I’m going to overrule you, Mr. Schatz.
BY MR. AXLEY (Continuing Cross-examination):
Q. Would you answer that? Do you want me to ask it again?
******
A. I know that I would be reluctant to release him today, because I feel he has a serious sexual problem, and I don’t think he has received the treatment for that problem in the past, and I think he does need the treatment for that problem. And, I think if he does not receive the treatment for that problem, the odds are that he would get involved in this sexual behavior again, unless he was treated for it.
Q. And, your treatment is purely voluntarily [sic]?
A. That’s correct.
Q. On an outpatient basis?
A. That’s correct.
Q. Therefore, he is allowed to walk the streets?
A. That’s correct.

The Court of Criminal Appeals was of the opinion the evidence “overwhelmingly supports the jury’s verdict” in this case and concluded the testimony of Dr. Abel, though irrelevant, was not a material factor in the jury’s decision and was harmless error. We do not agree.

An error may not be deemed harmless where there “is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 17 (1963). Of similar import is Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758 (1965), wherein it is pointed out that “The general test to be applied is whether the improper conduct could have affected the verdict to the prejudice of the defendant.”

In this case, there never was any doubt that appellant committed rape. He never even challenged this fact, but undertook to prove that at the time of the rape, he was unable to conform his conduct to the law. On this issue, appellant tendered Dr. Abel, who testified that appellant was insane under the Graham rule because he was a mentally ill sexual deviate who could not control his actions. In rebuttal, the State called Dr. John Hutson, who basically contradicted the conclusions reached by Dr. Abel, and also called lay witnesses who testified they had “normal” conversations with appellant the day of the crime. The evidence on the issue of. insanity being in such sharp conflict, can it be said with the requisite degree of certainty that the testimony of Dr. Abel as to appellant’s future conduct, if acquitted of the rape charge on the ground of insanity, was not a factor in the jury’s deciding the controversy issue of appellant’s sanity?

In Covey v. State, 504 S.W.2d 387, 393 (Tenn.Crim.App.1973), the prosecutor told the jury in argument “that if they acquitted on the basis of the County Court records indicating insanity that the defendant could ‘go right out of here and kill again . . and say ... I have a right to do that because I am insane.’ ” In sustaining an assignment of error directed to this argument, the court held that “such argument lends nothing to the search for truth the jury must conduct and is highly prejudicial.” We think the eliciting of testimony from a psychiatrist called as a witness by the defense to the effect that if appellant is acquitted of the offense of rape “the odds are that [appellant] would get involved in this sexual behavior again, unless he was treated for it” would be even more devastating than the advancement of that thesis in argument by the prosecution as in the Covey case, supra.

The judgment of conviction is reversed and the case is remanded to the Criminal Court of Shelby County for a new trial.

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

      . Graham v. State, 547 S.W.2d 531 (Tenn.1977).


author: HENRY, Justice.

text:
    Lucy DAILEY, Plaintiff-Appellee, v. RUSSANN LUMBER COMPANY, INC., and Casualty Reciprocal Exchange, Defendants-Appellants.
    Supreme Court of Tennessee.
    Dec. 17, 1979.
    Fred E. Ivy, Jr., Wilson, McRae, Ivy, Sev-ier, McTyier & Strain, Memphis, for defendants-appellants.

      John E. McManus, Owens, Moore & McManus, Memphis, for plaintiff-appellee.
   OPINION

HENRY, Justice.

In this workmen’s compensation action the Trial Judge awarded full statutory benefits to the widow of a deceased workman. Reviewing the case under the familiar material evidence standard, we affirm the judgment.

I.

The deceased workman was employed as a truck driver for Russann Lumber Company. On the day of his death he reported for work at 6:54 a.m. The undisputed evidence shows that he was in apparent good health and good spirits and voiced no complaint. He was forty-six years old at the time and his prior medical history was such that he did not even have a family doctor.

During the day he made five deliveries of lumber; a smaller number than usual. The size of the deliveries varied but none was significantly large. The lumber was loaded on the truck by others. His only responsibility, at that time, was to tie the lumber down using a chain and secure it by tightening or “booming” the chain on both sides. The proof is that these chains weighed some thirty or .forty-five pounds and it took “tremendous” pressure to tighten them.

When deliveries were made, the lumber was dumped mechanically from the truck or removed by lift. In either event, it was necessary for him to loosen the chains and, after the load was deposited, to place them back on the truck. All this involved substantial stooping, lifting, bending, climbing and the use of physical effort and force.

He made his last delivery at approximately 5:00 p.m. and was last seen alive around 5:15 p.m. His body was discovered at approximately 5:45 p.m. The time of death was estimated at 5:20 p.m., and this is the time of death as treated by the parties.

Dr. Jerry T. Francisco, Professor of pathology at the University of Tennessee and County Medical Examiner for Shelby County, was contacted, and as medical examiner, viewed and examined the body and investigated the surrounding circumstances. On his report, he listed the cause of death as arteriosclerotic heart disease which he classified as a heart attack. Dr. Francisco stated that this was a statistical diagnosis and conceded that it was not a positive eviden-tiary finding; however, based upon the sum total of all relevant factors, he stated that his diagnosis rested on a reasonable degree of medical certainty.

Dr. Otis S. Warr, III, a medical doctor specializing in internal medicine — cardiovascular diseases, testified as an expert witness and responded to a hypothetical question which fairly embraced all the relevant facts, by saying:

In all probability such exertion as you described did in part contribute to a heart attack. .

Dr. Eugene J. Spiotta, Sr., a specialist in the field of internal medicine, testified for the employer. His testimony was persuasive, articulate and convincing. He testified that the activities of the decedent on the day of death did not have anything to do with his death.

Thus, as is so often true in workmen’s compensation cases, the Chancellor had to choose among eminently qualified physicians who expressed different views. This is the exclusive province of the trial judge. It matters not to the reviewing court that the preponderance, or greater weight, or better evidence may have been to the contrary. We do not weigh evidence in workmen’s compensation cases. Our province — and our only province — is to determine whether the findings of the trial judge are supported by material evidence. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976).

II.

It is insisted for the employer on this appeal that the deceased deviated from his employment and his widow is precluded from recovery.

The body was found lying some eight to ten feet from his truck and at or on the front steps leading to the house of a brother-in-law. While the facts are not clearly developed in the record, apparently this was in the opposite direction from the lumberyard of the employer.

We do not regard this ás a prohibited deviation. The reason for the detour does not appear. The Chancellor could not “rule out the real possibility that the reason this man was headed over to his brother-in-law’s is because he was indeed in some physical trouble.” Perhaps so; the record does not enable us to determine the precise purpose of the visit. Aside from the unquestioned fact that the detour or deviation did not cause, or contribute to the cause of death and is, therefore, of no consequence, there is other evidence which convinces us the deceased’s conduct was not improper.

First, after 5:00 p.m., when the working day was over, and nothing remained except to return the truck, there was little incentive for a deviation.

Second, the president of Russann described the nature and character of this employee in glowing terms. He said he was “one of the finest people that ever lived”; that “he was as good a truck driver as I’ve ever had on the payroll”; that he “didn’t goof off”; and that he was a conscientious and loyal employee. The shipping clerk for Russann similarly gave him a splendid reputation as a worker and said, “he wasn’t the type of man that would go off somewhere and waste time and things.” From this record we do not believe and cannot find that deceased was off on a “frolic” of his own.

It is not every detour or deviation that precludes coverage. Akin to both this and the previous proposition is our holding in Lawrence County Highway Dept. v. Hardiman, 531 S.W.2d 792 (Tenn.1975). There we sustained an award based on a heart attack, precipitated by physical activity and exertion while on the job, and which occurred in an automobile on the way home from work.

More analogous to the instant case is Watson v. United States Fire Insurance Co., 577 S.W.2d 668 (Tenn.1979). The claimant, employed in Knoxville, was authorized to attend a training program at Paris Landing State Park, near Paris. He journeyed to Jackson, some forty-five miles southwest of Paris Landing and not on the route from Knoxville to Paris Landing, where he spent the night and was injured the next morning enroute to the park. Inter alia, we held that there was no indication that Watson’s departure “materially increased the risks of the journey.”

Given the time interval in this case, we find not the slightest suggestion in this record that deceased’s detour or deviation had any bearing on his subsequent heart attack and death.

We, therefore, hold that material evidence supports the Chancellor’s finding that deceased’s death was from a heart attack which arose out of his employment and within the scope and course thereof.

Affirmed.

BROCK, C. J., and FONES, COOPER and HARBISON, JJ., concurring.