author: WALKER, Judge.

text:
    Stephen Wayne MOORE and Ronald Lynn Houston, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 2, 1978.
    Certiorari Denied by Supreme Court May 8, 1978.

      Jay Fred Friedman, Barry A. Wiener, Memphis, for Moore.
    J. F. Nelson, Anthony J. Sabella, Memphis, for Houston.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, James D. Wilson, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

WALKER, Judge.

Stephen Wayne Moore and Ronald Lynn Houston appeal from their convictions of knowingly maintaining a building for keeping and selling a controlled substance, marijuana, and their sentences of three to seven years in the penitentiary. TCA 52-1435(a)(5).

Although neither appellant challenges the sufficiency of the evidence, we outline the essential facts of the offense. Neither appellant testified.

Prom October 7 to November 7, 1975, undercover Memphis police officers made a number of - purchases of marijuana from each of the appellants at Stevie Moore’s Tailoring Shop at 1529 McMillan Street. Officer Triplett talked to Houston there on October 7 about some clothing alterations and bought 20 marijuana cigarettes from him. On the same day his partner, Detective Hering, also purchased 17 similar cigarettes from Houston.

On November 1 Officer Dorothy Boyd and her partner, Officer Samuel Jackson, went to the premises and purchased marijuana from Moore who was aided by Houston. About five persons were standing in line to buy. On November 5 the officers returned and each purchased an ounce from Houston; they came back the next day and made another purchase from him.' On November 7 they went to the place again; both appellants were there and Moore opened the building and again sold marijuana to them. Officers Boyd and Jackson were operating under Sergeants Penn and Payne and turned over their purchases to these officers.

Armed with a search warrant obtained by Detective Moses, a number of officers went to the tailor shop on November 7. Moses found Houston in charge of the place and gave him the search warrant; Moore was not present then. Marijuana was on a cutting table and scales were nearby. Officer Clemmer found 13 ounces of marijuana and Detective Moses located about half a pound.

Both appellants insist that TCA 52-1435(a)(5) applies only to registrants and for that reason their convictions are void.

TCA 52-1435(a)(5) makes it “(U)nlawful for any person” (emphasis supplied) knowingly to maintain premises of the nature shown by the proof here. In contrast to TCA 52-1435(a)(l) and (2), the proscribed activity of TCA 52-1435(a)(5) is not limited to persons subject to the registration provisions in TCA 52-1424—1431. Under the clear language of the statute, all persons are subject to prosecution for the activity proscribed under TCA 52-1435(a)(5).

In support of their contention that this part of the statute applies only to registrants, the appellants rely on the heading of the section which reads: “Criminal penalties—Registrants.” However, this heading was not a part of the original Act, but was added by the Tennessee Code Commission.

Although TCA 1-105 and 1-108 give the Tennessee Code Commission the authority to prepare new section headings, TCA 1— 108 also provides that “ . . .No such change shall be deemed an alteration of or departure from the enrolled statute.”

Accordingly, the heading added by the Tennessee Code Commission in no way affects the applicability of the part in question to registrants and nonregistrants alike. The appellants’ reliance on McLean v. State, 527 S.W.2d 76 (Tenn.1975), is misplaced. That case does not support their contention that all sections of TCA 52-1435(a) apply solely to registrants. Although the appellants are nonregistrants, they were properly convicted for the violation of the provision charged here.

Other assignments are those of Moore alone.

Moore contends that the chain of custody of the material purchased or seized was not properly shown. The evidence showed that the material was properly transmitted from the receiving officers to other officers and to toxicologists at the University of Tennessee in compliance with the rule laid down in Ritter v. State, 3 Tenn.Cr.App. 372, 462 S.W.2d 247 (1970). This assignment is meritless.

Moore urges that the court erred in declining to permit him to go behind the face of the search warrant at the suppression hearing.

The affidavit to the search warrant is facially sufficient. The court granted Moore a hearing out of the presence of the jury on his motion to suppress. There Officer Moses, the affiant, who was also one of the searching officers, testified to the procedure followed in obtaining the search warrant. He typed up the affidavit on November 7 at 12:30 or 1:00 p. m. on the basis of information supplied by a reliable informant. Moses applied to the magistrate at 4:30 or 5:00 p. m. On cross-examination he said that he was working independently of Sergeant Payne who was supervising Officers Boyd and Jackson and that he did not then know they were involved. He said that his information was from an informant rather than from undercover officers and was given him on the morning of November 7. Because undercover agents had been making purchases, Moore argues that this shows fraud and collusion among the officers and in substance that Moses must have received his information from them rather than from an informant. He made no offer of proof to show that Moses was mistaken or perjured himself. In a large police organization, it is nothing unusual for an officer to work on a case also being investigated, without his knowledge, by another officer. There was no reason for Moses to claim in his affidavit that he received information from an informant rather than from an officer unless that was correct. Four undercover agents had openly made purchases from the appellants without violation of their constitutional rights. There was no occasion or necessity for fraud or collusion among officers to obtain a warrant and there is nothing in the record or offered for the record to show any fraud or collusion here.

The grounds on which a search warrant is issued may be attacked in criminal court as well as before the magistrate. State v. Little, 560 S.W.2d 403 (Tenn.1978). The circumstances that authorize the impeachment of an affidavit sufficient on its face are (1) a false statement made with intent to deceive the court, even if immaterial to the issue of probable cause, and (2) a false statement, essential to the establishment of probable cause, recklessly made. State v. Little, supra. Since neither circumstance was shown or offered in proof, the trial judge did not err in upholding the validity of the search warrant.

Moore argues that the trial judge should have declared a mistrial when it developed that the trial judge and his wife were engaged in civil litigation with Moore’s brother and mother following an automobile collision between the judge’s wife and Moore’s relatives. Although Moore’s brother testified that he had known of this litigation before the trial and for as long as the judge had been on the bench and that he had mentioned it to the appellant “a long time ago,” the question was not called to the attention of the court until the final day of the lengthy trial after all of the evidence had been introduced. Apparently counsel was not informed of the matter until the day before. We judicially know that the trial judge assumed the bench September 5, 1975, and this trial began September 21, 1975.

The trial judge said he did not know either Moore or Houston, that any civil litigation was being handled by his insurance company and that the civil litigation with Moore’s relatives would have no effect on the criminal case. Since Moore knew all the facts of the litigation long before the case was set for trial, he should have asked the judge to recuse himself at the beginning rather than the end of the trial. By failing to do so he waived any objection to the trial judge’s hearing the case. Further, there is nothing to indicate that the civil suits biased or prejudiced the trial judge against the appellant in any way. The assignment is without merit.

Moore contends that the trial court should have declared a mistrial after he had held three of the four defense counsel in contempt of court.

During the six-day trial, the court held three defense counsel in contempt, either for disregarding the court’s orders or for outbursts, and fined each $25. The question of whether or not counsel were properly found in contempt is not an issue before us. This record shows nothing to indicate that the citations of counsel in any way impaired their ability to properly represent the appellants or in any way prejudiced them.

All assignments are overruled and the judgments are affirmed.

DWYER, P. J., and TATUM, J., concur.


source: Caselaw Access Project

author: TATUM, Judge. TATUM, Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellant, v. John Leburn NORTHCUTT, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 28, 1978.

    Rehearing Denied April 12, 1978.
    Certiorari Denied by Supreme Court July 10, 1978.

      Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Pat Apel, Asst. Dist. Atty. Gen., Nashville, for appellant.
    Vincent E. Wehby, Nashville, for appel-lee.

       A portion of the opinion was d( ted from publication by the court.

   OPINION

TATUM, Judge.

This is an appeal by the State from the judgment of the Criminal Court of Davidson County sustaining the defendant-appel-lee’s Motion to Dismiss an indictment for second-degree murder on the grounds that there has been a denial of a speedy trial. The Motion to Dismiss states that the ap-pellee’s speedy trial rights under T.C.A. § 40-2102 and his guarantee of a speedy trial by the United States and Tennessee Constitutions have been denied. The judgment of the Criminal Court is reversed.

On 28 February 1976, an affidavit was sworn to and a warrant was issued by the General Sessions Court charging that on that day, the appellee committed second-degree murder. A preliminary hearing was set for 2 March 1976, but continued until 13 April 1976, to enable the State to procure its witnesses. After the preliminary hearing of 13 April 1976, the General Sessions Judge dismissed the warrant for lack of probable cause. No further action was taken in the case until 27 July 1977, when the Grand Jury returned an indictment charging the appellee with second-degree murder. The motion to dismiss was filed 2 September 1977, and, as stated, it was sustained.

It is the contention of the appellee that when T.C.A. § 40-2102 is construed in pari materia with T.C.A. § 40-2001, it must be concluded that he has been denied a statutory right to a speedy trial. T.C.A. § 40-2001 guarantees “in all criminal prosecutions, the accused is entitled to a speedy trial . . . ” This code section is derived from Article I, Section 9 of the Tennessee Constitution and gives the appellee no rights that are not already guaranteed to him by the Federal and State Constitution; it does not alter the expressed intent of § 40-2102.

T.C.A. § 40-2102 provides as follows:

“40-2102. Dismissal for failure to bring to trial. — If a defendant charged with an offense be not indicted at the term to which he has been bound, or, where the trial has not been postponed on his application, be not brought to trial at the next regular term of the court in which the indictment is triable, after the same is found, the court may order it to be dismissed, unless good cause to the contrary be shown.” [Emphasis added.]

In construing this code section, we are bound by rules of statutory construction that are firmly established and often cited. Unambiguous statutes must be construed to mean what they say; they cannot be given another meaning by judicial construction. Montgomery v. Hoskins, 222 Tenn. 45, 432 S.W.2d 654 (1968); Henry v. White, 194 Tenn. 192, 250 S.W.2d 70 (1952). A statute should be construed as a whole and it should be assumed that the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. It is our duty to construe the statute so that no part will be inoperative, superfluous, void or insignificant. Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975); Tidwell v. Servomation-Willoughby Co., 483 S.W.2d 98 (Tenn.1972).

In applying these rules, we cannot ignore the phrase “to which he has been bound.” The statute is clear and unambiguous. By its expressed terms it is applicable only when a defendant “has been bound” to the action of the Grand Jury and is not applicable when he is not so bound.

The purpose of the statute is to prevent an accused from being detained in jail or under bond for a prolonged period of time. This oppression cannot arise when the accused is dismissed at the preliminary hearing.

The protection of the speedy trial provision of the Sixth Amendment to the United States Constitution is not engaged by the arrest followed by a prompt discharge of the person arrested at the preliminary hearing. The invocation of the speedy trial provision requires both an arrest and holding to answer a criminal charge, or a formal indictment or information. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

In dealing with an analogous situation, the United States Court of Appeals, Sixth Circuit, in United States v. Martin, 543 F.2d 577, 579 (1976), said:

“Martin’s second contention is that he was denied his Sixth Amendment right to a speedy trial. He was originally charged with the activities which are the subject of this indictment in August 1972. Those charges were dismissed in January 1973. This indictment was filed in December 1974. Martin was tried and convicted in December 1975.
The Sixth Amendment right to a speedy trial does not attach until the formal charge, the trial of which is alleged to have been inordinately and prej-udicially delayed, is made. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Because there was no indictment which could have been tried in the period between January 1973 and December 1974, we cannot say that a speedy trial was delayed during that time. The remaining time is not remotely comparable to the five year delay which provoked the analysis in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Even if we were to include the five months between the filing and dismissal of the earlier charges in this case, the total period of delay would still be less than the time between Barker’s first objection to delay and Barker’s trial. Even that period was insufficient to show a violation of Barker’s Sixth Amendment rights.”

The actual restraints imposed by the arrest and holding to answer a criminal charge, or formal indictment or presentment is required to invoke the speedy trial provisions of Article I, Section 9, Constitution of Tennessee. Boswell v. State, 528 S.W.2d 825 (Tenn.Cr.App.1975); State v. McCullough, 4 Tenn.Cr.App. 272, 470 S.W.2d 50 (1971); State v. Gossage, 4 Tenn.Cr.App. 222, 470 S.W.2d 30 (1971).

Moreover, there is no showing of any prejudice on the part of the appellant and under the circumstances of this case, prejudice cannot be presumed. There is no showing that the State purposely awaited the presentation of this ease to the Grand Jury to gain tactical advantage. Even if we had found that the period of delay was continuous from 13 April 1976 until the return of the indictment in July, 1977, there was no denial of right shown by assessment of the following factors: (1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his rights; and (4) prejudice to the defendant. See, State v. Bishop, 493 S.W.2d 81 (Tenn.1973); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The judgment dismissing the indictment is reversed and this case is remanded to the Criminal Court of Davidson County for trial

BYERS, J., and FRANK DROWOTA, Special Judge, concur.

OPINION ON PETITION TO REHEAR

TATUM, Judge.

The appellant has filed a petition to rehear. It is a reargument of matters already presented to us and points out no material proposition of law or fact overlooked by us.

The appellant insists, among other things, that we should sustain the action of the Trial Judge dismissing the indictment because of an allegation that the foreman of the grand jury asked a witness whether or not the appellant had a criminal record. The Court did not delve into this allegation and this was not a basis for the dismissal of the indictment. However, the legality of evidence heard by a grand jury is not subject to judicial review. An indictment returned by a grand jury, if valid on its face, is enough to call for trial of the charge on the merits. Parton v. State, 2 Tenn.Cr.App. 626, 455 S.W.2d 645 (1970). Generally, also see Rippy v. State, 550 S.W.2d 636 (Tenn.1977); Gammon v. State, 506 S.W.2d 188 (Tenn.Cr.App.1973); Casey v. State, 491 S.W.2d 90 (Tenn.Cr.App.1972).

The petition to rehear is denied. Keith v. State, 218 Tenn. 395, 403 S.W.2d 758 (1966); Williams v. State, 542 S.W.2d 827 (Tenn.Cr.App.1976).

BYERS, J., and FRANK F. DROWOTA, III, Special Judge, concur.

      . The same construction has been given to Rule 48(b) of the Federal Rules of Criminal Procedure. See, United States v. Miller, 259 F.Supp. 294 (E.D.Pa.1966) and cases there cited.


author: DAUGHTREY, Judge. GALBREATH, Judge,

text:
    Gloria Ann DORSEY and Henry Norman Dorsey, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 21, 1978.
    Certiorari Denied by Supreme Court June 12, 1978.

      Michael D. Noel, James R. Omer, Nashville, for appellants.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Jude T. Lenahan, Asst. Dist. Atty. Gen., Nashville, for appellee.
   DAUGHTREY, Judge.

OPINION

This prosecution arose from the $200,-000.00 armed robbery of Diamond Brokers, Inc., a Nashville jewelry company. Metro police ultimately identified four men and two women as members of the group that planned and executed the robbery. Of the six conspirators, one Nate Thomas was never apprehended. A second suspect, Jack Barrett, was arrested and released on bond, but apparently was murdered in New Jersey before the case reached the grand jury. The remaining four suspects, Henry Norman Dorsey, Gloria Ann Dorsey, Carl Carlson, and Trudy Fisher, were jointly indicted on a charge of armed robbery and scheduled for trial on the same date. The trial lasted five days. On the first morning, all four co-defendants filed motions for severance.

Carlson’s motion was accompanied by an affidavit in which he stated that he intended to change his not guilty plea to a plea of guilty and to “submit the question of [his] punishment . . . to a jury.” The other three co-defendants filed similar motions to sever, but theirs were not accompanied by affidavits. The Dorseys maintained by way of oral argument that to put them to trial with a co-defendant who was conceding his guilt before the jury would inherently prejudice the jury on the question of the guilt or innocence of the remaining defendants. All four motions for severance were denied by the trial judge, but on the heels of this ruling he did order a severance as to Trudy Fisher, following the State’s announcement that her case was to be retired. Fisher later testified against her former cohorts as a witness for the prosecution.

At the end of the five day trial, the jury sentenced Carlson to fifteen years on his plea of guilty, and convicted Norman Dorsey and Gloria Dorsey of armed robbery, sentencing them to thirteen years and ten years, respectively. Carlson does not contest the judgment below, but the Dorseys have appealed their convictions, filing some thirteen assignments of error. The most serious of these, and the one provoking a separate dissenting opinion by one member of this panel, concerns the trial court’s failure to grant a severance under the conditions described above. After a study of this issue and a review of the other assignments of error, we conclude that there was no reversible error committed in the trial court, and we therefore affirm the convictions.

The law in Tennessee is well settled that a motion for a severance is addressed to the broad discretion of the trial judge, and that his exercise of discretion in denying such a request will not be reversed unless it appears that the defendants were clearly prejudiced thereby. Tomlin v. State, 207 Tenn. 281, 286, 339 S.W.2d 10, 12 (1960). In Woodruff v. State, 164 Tenn. 530, 538-39, 51 S.W.2d 843, 845 (1932), the Tennessee Supreme Court noted:

It may have been to the interest of each [defendant] that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. The state, as well as the persons accused, is entitled to have its rights protected, and when several persons are charged jointly with a single crime, we think the state is entitled to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defendants.

These defendants allege that they were “unfairly prejudiced” in this instance because (1) their co-defendant, Carlson, went to trial on a plea of guilty and (2) a passing reference was made at trial concerning Carlson’s having kidnapped a person during his lone attempt to avoid apprehension. We conclude that neither of these arguments provides a sufficient basis upon which to find that the trial court erred in denying a severance.

The Tennessee cases addressing the question of severance appear to fall into one of two groups: those in which the defendants base their request for severance on the existence of antagonistic defenses, and those in which one of the defendants has made a confession which the State wishes to introduce at trial. It does not appear that the situation before us falls into either category. The difference in the nature of the pleas does not necessarily set up antagonistic defenses. Gf. Self v. State, 527 S.W.2d 153 (Tenn.Crim.App.1975), in which this court held that there was no error in refusing to grant a severance in a case where the co-defendant failed to interpose any defense to the charge. And despite the views expounded by Judge Galbreath in his dissent, we do not believe this case presents a violation under Stallard v. State, 187 Tenn. 418, 215 S.W.2d 807 (1948), or under Bruton v. United States, 391 U.S.. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the United States Supreme Court held that admission at a joint trial of a co-defendant’s confession implicating the defendant constituted prejudicial error even though the trial court gave an instruction that the confession could only be used against the co-defendant and must be disregarded with respect to the defendant. Post-Bruton cases, as well as the ABA Standards, make it clear, however, that the rule in Bruton does not apply to confessions which to not implicate the non-confessing defendant, nor does it apply to confessions from which “all references to the moving defendant have been effectively deleted, provided that, as deleted, the confession will not prejudice the moving defendant.” ABA Standards Relating to Joinder and Severance § 2.3(a)(ii) (1967). Accord, United States v. Alvarez, 519 F.2d 1052 (3d Cir.1975), cert. denied Hernandez v. United States, 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975); United States v. Gray, 462 F.2d 164 (5th Cir. 1972), cert. denied 409 U.S. 1009, 93 S.Ct. 452, 34 L.Ed.2d 303 (1972); White v. State, 497 S.W.2d 751 (Tenn.Crim.App.1973); Taylor v. State, 493 S.W.2d 477 (Tenn.Crim.App.1972); Maxwell v. State, 1 Tenn.Cr. 335, 441 S.W.2d 503 (1969).

In this respect, the Bruton decision was anticipated in large part by an earlier opinion of the Tennessee Supreme Court. In Stallard v. State, supra, it was held that:

If one of several defendants jointly indicted has made admissions or confessions involving another defendant, the court may, in its discretion, order a separate trial, so that the admissions or confessions, while evidence against the one, may not prejudice the other, and where the circumstances are such that an instruction to disregard the confession of one when considering the guilt of the other would prove ineffective to eradicate the impression on the jury the severance should be granted, unless the prosecuting attorney expressly declares that such statements will not be offered in evidence on the trial, or unless all reference to the moving defendant is eliminated from the confession.

215 S.W.2d at 812 (citation omitted; emphasis added).

We thus conclude that the failure to sever in this case is not contrary to the rulings in Bruton or Stallard. While it is true, as the dissenting judge points out, that a plea of guilty is a “judicial confession,” it is equally clear that it is not a statement of the kind contemplated by those cases. Furthermore, the plea in this case contained no reference whatsoever to the remaining defendants, and thus falls outside the proscription of Bruton and Stal-lard. The application of Bruton and Stal-lard to the situation before us, as urged in the dissent, would wholly remove the trial judge’s discretion and would make mandatory the severance of a co-defendant who proceeds to trial on a guilty plea.

Although this question has not been treated in a reported case in Tennessee, this court in an unreported decision has previously held that there is no error in failing to sever a co-defendant who is proceeding to trial on a plea of not guilty. Mark Anthony Brooks v. State of Tennessee, Court of Criminal Appeals at Knoxville, December 15, 1977. Moreover, the Court has previously held that a change of plea by a co-defendant does not constitute violation of Bruton nor entitle the remaining defendants to a severance and mistrial, where proper instructions are given by the trial court. Aldridge v. State, 562 S.W.2d 216 (Tenn.Crim.App.,1977; cert. denied Tennessee Supreme Court, March 16, 1978); Mark Anthony Jackson v. State of Tennessee, Court of Criminal Appeals at Jackson, November 6, 1975. Furthermore, in other jurisdictions that have considered the question, a majority have upheld the right of the trial court to deny a severance even though one of the defendants proceeds to trial on a plea of guilty or changes his plea in mid-trial. See, e. g., Anderson v. United States, 270 F.2d 124 (6th Cir. 1959); contra, Rogers v. United States, 304 F.2d 520 (5th Cir. 1962); Sherwood v. State, 241 Ind. 215, 170 N.E.2d 656 (1960). Under the prevailing federal rule, acceptance of a co-defendant’s change of plea from not guilty to guilty has generally been held not error, unless the trial judge did something to emphasize the guilty plea. Annot., 3 A.L.R. Fed. 444.

We thus conclude that the trial judge had the discretion in this instance to grant or deny a severance, and that the refusal to sever must be viewed under the traditional test: were the complaining defendants prejudiced by this action? Tomlin v. State, supra; Woodruff v. State, supra. We think they clearly were not. The trial court carefully instructed the jury that they could return different verdicts for the individual defendants, saying that “[i]f there be evidence that sheds light upon the guilt or innocence of one or more defendants and does not shed light upon the guilt or innocence of the others, be careful that you do not let the evidence that sheds light upon the guilt or innocence of one affect your verdict as to the others upon which such evidence sheds no light.” In response to the trial court’s further charge that they might “convict all of the defendants or . . . acquit all, or . . convict one or more and acquit the others, and fix such punishment as to each defendant as the law and evidence justifies,” the jury apparently made careful distinctions between the defendants, fashioning separate penalties for each according to his or her part in the commission of the offense.

Finally, we note that the evidence against these defendants was so strong as to be properly labelled overwhelming. Thus it is not “a case where, without the existence of a confession [judicial or otherwise] by one defendant, the evidence against another would be too weak to justify a conviction or even where a conviction would be doubtful . . . .” Ellis v. State, 218 Tenn. 297, 302, 403 S.W.2d 293, 295 (1966). We conclude that even if there were an abuse of discretion in the trial court’s refusal to sever, the resulting error did not affect the outcome of the trial. T.C.A. § 27-117.

The evidence at trial showed that Henry Dorsey checked into a local Ramada Inn on February 22, 1976, and was assigned Room 126. That night the Dorseys, Carlson, and the other members of the group met in Room 126 to plan the robbery which was to occur the next morning. A large part of their conversation was inadvertently overheard by the occupant of the next room (Room 128), a Mr. Bragg, who reported what he had heard to police the following morning.

Meanwhile, at the site of the robbery, Gloria Dorsey entered the Diamond Brokers office first, followed by Carlson and Thomas, who drew pistols on company employees and carried off the merchandise. An observer across the street saw a man meeting Henry Dorsey’s description fire a pistol from the parking lot in front of the building in which the jewelry company was located at about the time the robbery occurred.

Later that day, Diamond Brokers employees identified Gloria Dorsey and Carl Carlson in a lineup as being two of the people involved in the robbery. In addition, Gloria Dorsey’s purse was found in the jewelry store after the robbers fled. Most of the participants in the robbery, with the exception of Thomas and Carlson, were arrested in Room 126 of the Ramada Inn shortly after the robbery. Carlson was arrested as he tried to escape Nashville in a commandeered vehicle.

Through information gathered from various sources, Metro police were able to locate automobiles belonging to Barrett and Henry Dorsey. They secured warrants to search these two vehicles and recovered most of the proceeds of the robbery from the trunk of Barrett’s car. A guitar-shaped diamond ring taken in the robbery was found in the utility trailer attached to Henry Dorsey’s car.

As noted previously, Trudy Fisher testified as a witness for the State. She filled in many details concerning the planning and execution of the robbery, and her testimony was amply corroborated by extrinsic evidence. Fisher attempted, as best she could, to exonerate herself and Gloria Dorsey from any active complicity in the actual hold-up. And it was Henry Dorsey’s theory that there was no direct proof of his actual participation in the robbery. However, based on the evidence summarized above, we have no hesitation in concluding that the jury was fully justified in reaching its verdict as to both defendants.

The remaining assignments of error require less extended discussion. There was no Bruton error with regard to Trudy Fisher’s testimony. She was subject to extensive and very able cross-examination by counsel for both defendants.

Nor was there any error in police officers’ testimony concerning weapons found in the vehicles but not introduced at trial. There is no “best evidence” requirement as to items of physical evidence, and the failure to produce them as exhibits affects the weight and not the admissibility of testimony concerning such evidence. Clariday v. State, 552 S.W.2d 759 (Tenn.Crim.App.1976).

Likewise, the testimony of Mr. Bragg, the occupant of Room 128 who overheard the conversation of the conspirators, was admissible despite the fact that he could not identify the individuals who made the statements nor repeat their entire conversation. These statements were fully authenticated through the testimony of Trudy Fisher. Furthermore, as the declarations of co-conspirators, they constitute an exception to the rule against hearsay. Solomon v. State, 168 Tenn. 180, 76 S.W.2d 381 (1934). The statements were thus fully admissible; the conditions under which they were overheard and the fact that Mr. Bragg could not repeat the entire conversation affected only the weight to be given the evidence.

We find no error in the admission of the motel records. The proof indicates that was substantial compliance with the Business Records Act. T.C.A. §§ 24-712 through 24-715. As to the two originals that were lost or misplaced by the police, there is no allegation of fraud with regard to their loss, no allegation that the photostatic copies were not accurate, and no proof of prejudice in the introduction of the copies. See generally, D. Paine, Tennessee Law of Evidence § 234 (1974); T.C.A. § 24-711.

Nor do we find error in the trial court’s discretionary ruling permitting certain witnesses to testify despite the fact that their names were not listed on the indictment and were not furnished by the State in response to the defendants’ discovery motions. The names of these witnesses and the substance of their expected testimony were given to defense counsel some three or four days before testimony actually began, and thus the defendants can claim no surprise nor resulting prejudice. Compare Aldridge v. State, 4 Tenn.Cr. 254, 470 S.W.2d 42 (1971) with Canady v. State, 3 Tenn.Cr. 337, 461 S.W.2d 53 (1970); see also Douglass v. State, 213 Tenn. 643, 378 S.W.2d 749 (1964).

In addition, there was no error in the admission of evidence taken from the trailer attached to Henry Dorsey’s automobile. The evidence in question was seized pursuant to a valid search warrant, which described the vehicle to be searched (“a 1972 dark green Cadillac bearing Texas license number EAT821, parked at the Metro Police Dept. Tow-In Lot, 828 5th Ave., No., and a utility trailer with a white top and orange bottom bearing Ala. plates 2RT208, attached to said ’72 Cadillac . . . . ”) with sufficient particularity to satisfy the applicable constitutional requirements. See Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737,49 L.Ed.2d 627 (1976); Squires v. State, 525 S.W.2d 686 (Tenn.Crim.App.1975).

Contrary to the defendants’ contention, the trial judge did not err in failing to charge the jury on all of the lesser included offenses of armed robbery and robbery, because there was no evidence in the record to support a finding of the commission of a lesser offense. Johnson v. State, 531 S.W.2d 558, 559 (Tenn.1975).

Finally, we find no abuse of the trial judge’s discretion in the seating of an alternate juror as a regular member of the panel. The defendants have failed to show how they were prejudiced by the seating of this juror, alleging only that the trial judge apparently knew before the alternate juror was selected that he would be used to replace a regular juror, who was discovered to. have a disabling physical condition after he was selected and sworn but before the alternate juror was selected. The juror in question was selected and seated in conformity with the provisions of T.C.A. § 22— 237 and was accepted by all defendants without challenge. There was no error in this procedure.

The defendants’ remaining assignments of error attack certain isolated pieces of testimony which, although of dubious probative value, clearly did not affect the outcome of the trial. These, as well as the other assignments discussed above, must therefore be overruled.

.The judgment of the trial court is affirmed.

RUSSELL, J., concurs.

GALBREATH, Judge,

dissenting.

I respectfully dissent.

Originally, pleas of not guilty were entered to the indictment charging Carl Ludwig Carlson, Gloria Ann Dorsey, Henry Norman Dorsey, and Trudy Elizabeth Fisher with robbery accomplished by use of a deadly weapon. Trudy Fisher agreed to assist the prosecution as a witness against the other defendants and a severance was granted after the State announced that her case was to be retired. Prior to that announcement the trial judge had denied her application in which the State had joined for a severance. This was consistent with a like denial of a motion by the appellants herein, Henry and Gloria Dorsey, for severances. The other co-defendant, Carl Ludwig Carlson, entered a plea of guilty but did not testify. He was, over strenuous objection on behalf of these appellants, tried jointly with them but only as to punishment.

The above procedure violated the constitutional rights of the Dorseys to confront the witnesses against them. Carlson’s judicial acknowledgement that he committed the offense, detailed by the allegations in the indictment and the evidence presented, including details of his attempted flight to avoid capture and prosecution, constituted devastatingly adverse evidence that the jury must have considered against the appellants.

The trial judge should, in my opinion, have granted the Dorseys a severance from Carlson. It would have cost the State nothing and would, in all probability, have been favorable to Carlson who was sentenced, on his plea of guilty, to 15 years in the penitentiary while Henry and Gloria Dorsey were sentenced to 13 and 10 years respectively.

The rule in Tennessee is that a trial judge has wide discretion in granting or withholding a severance. He will only be reversed where it clearly appears from the record that a failure to sever the trials will result in undue prejudice to the party seeking the severance. Conversely, a trial judge commits error when he fails to grant separate trials in those instances wherein it is made to appear that it will unduly prejudice one defendant to be tried with another. Such a situation arises in the so-called Bruton cases.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), it was spelled out, in effect, that where one defendant is confronted by evidence obtained from a non-testifying co-defendant, the right of confrontation available under the Sixth Amendment is denied even though the jury is instructed not to consider the evidence against the objecting defendant. This is similar to the rule established in Stallard v. State, 187 Tenn. 418, 215 S.W.2d 807 (1948). Confronted with the issue in Stallard, Mr. Justice Prewitt, in distinguishing between cases in which the co-defendant was available for confrontation (as was Fisher in this case) and a non-testifying co-defendant (as was Carlson), noted:

In the two cases cited above it appears that in the first-mentioned case there was no real defense offered, and in the second-mentioned case the defendant seeking a severance had every opportunity to cross-examine Alvis, as the latter did not take the stand. The attitude of Alvis being wholly antagonistic, Stallard could not make Alvis his witness as he would have been bound by his statements.

We are not confronted here with the same type of factual situation dealt with in either Stallard or Bruton, but rather the same principal that makes clear a jury could not possibly be but adversely impressed in its consideration of appellants’ position by the admitted conduct of an un-confrontable co-defendant.

The indictment charged that all four defendants “did, on the_day of February, 1976, . . . with force of arms . feloniously . . . put in fear and danger of his life . . . and violently steal from the person ... of . . Sid Katz . . . 308 articles of jewelry ... of the value of $198,-697.35.” When the defendant Carlson admitted under oath that the indictment accurately described the offense he had indeed committed, he became a most effective witness against the others named therein. He should have been available for confrontation just as though he had made a statement admitted as evidence containing the facts alleged in the indictment.

There can be no doubt that Carlson’s judicial “confession”, or plea of guilty, bore directly on the issue of the guilt of the appellants herein. The trial judge based his decision not to charge the lesser included offenses of larceny and the attempt to commit a felony, as requested, partly on the failure to submit a special request, and partly because he felt the evidence did not merit an instruction on the lesser included offenses. He noted in denying the requested instruction, “[T]he Court presented to the jury the charge that it felt applicable based upon the evidence in this case. The defendant, Carl Carlson, has readily admitted that there was an armed robbery. He admitted his participation in it, and entered a plea of guilty.” (Emphasis supplied.)

The appellants, Henry and Gloria Dorsey, did not enter pleas of guilty to armed robbery. Their positions were completely antagonistic to that of their confessing co-defendants, only one of which was available for cross-examination. As our Supreme Court noted (well in advance of Bruton in Stallard, supra:

[W]e cannot see how Stallard could receive a constitutional trial without the opportunity of cross-examining Alvis where the State undertook to read this highly damaging statement to the jury. It may be stated that in all probability the jury would have convicted Stallard of the highest degree of murder in the absence of this written statement of Alvis. This is highly problematical. We cannot afford to speculate on the constitutional rights of Stallard, no matter what our opinion should be after weighing all the facts and circumstances.

I would reverse and remand for a new trial and hold that any lesser included offense should be contained in the jury instructions, even in the absence of a special request as required by State v. Staggs, 554 S.W.2d 620 (Tenn.1977).

      . We give the defendants the benefit of the doubt by assuming that this omission was caused by a lack of adequate prior notice that Carlson was going to change his plea. Otherwise, the failure to comply with the mandatory requirement that a motion to sever must be supported by an affidavit would prevent our review of this question on appeal. Hoskins v. State, 489 S.W.2d 544 (Tenn.Crim.App.1972).

      . See, e. g., Morrow v. State, 82 Tenn. 475 (1884); Roach v. State, 45 Tenn. 39 (1867).

      . This latter category is, of course, the numerically larger of the two, insofar as the number of reported cases is concerned. See, e. g., Rounds v. State, 171 Tenn. 511, 106 S.W.2d 212 (1937); Strady v. State, 45 Tenn. 300 (1868); Hester v. State, 2 Tenn.Cr. 11, 450 S.W.2d 609 (1969).

      . Since the trial of the case at bar, the Tennessee Supreme Court’s opinion in State v. Mack-ey, 553 S.W.2d 337 (Tenn.1977), has changed dramatically the scope of evidence admissible at a punishment hearing against the defendant who pleads guilty before a jury. In light of Mackey, we think the better practice in the future would be to grant a severance upon the request of either the prosecution or the defense.


author: BARROW, Justice. DANIEL, Justice,

text:
    George MILLER, Individually and as next friend for George Miller, Jr., Petitioner, v. BOCK LAUNDRY MACHINE COMPANY, Respondent.
    No. B-6857.
    Supreme Court of Texas.
    Dec. 30, 1977.
    Rehearing Denied July 26, 1978.

      Wellborn & Houston, Rex Houston, Henderson, for petitioner.
    Sharp, Ward & Ross, Earl Sharp, Long-view, for respondent.
   BARROW, Justice.

This is a products liability case. George Miller, Jr., then eleven years old, had his left arm severed at the shoulder when it became caught in a centrifugal extractor, a type of clothes dryer manufactured by Bock Laundry Machine Company. At the time of the accident, it was installed in the Blue Ribbon Cleaning Center, a laundromat in Henderson. George Miller, Sr. filed suit individually, and as next friend of George Jr., seeking to recover damages jointly and severally from Bock; from Luther Jenkins, d/b/a Blue Ribbon Cleaning Center; and from United Furniture Company, who had sold the equipment to Jenkins. Miller settled with Jenkins just before trial for $45,-000 and agreed to hold Jenkins harmless from Bock’s plea for indemnity or contribution.

The jury found that the extractor was defectively designed by Bock and that the defect was a producing cause of the boy’s injury. The jury also found that Jenkins and United Furniture were guilty of negligence, but that such negligence was not a proximate cause of the occurrence in question. The trial court concluded that there was no evidence to support the jury’s findings that the extractor was defectively designed and granted Bock’s motion for a take-nothing judgment non obstante vere-dicto. Miller perfected an appeal as to Bock and the court of civil appeals affirmed. 551 S.W.2d 775. We reverse the judgments of the lower courts and render judgment on the jury verdict.

To overrule the action of the trial court in granting the motion for judgment non obstante veredicto, we must determine that there is more than a scintilla of evidence upon which the jury could have made the findings against Bock. In making this determination, we must review the e vddence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974); Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974).

The extractor was designed and manufactured by Bock. It was designed to extract water from the clothes by means of the centrifugal force generated by the clothes basket rotating at about 1,725 revolutions per minute, the equivalent of over 60 miles per hour. This particular machine was originally sold by Bock in 1957 to Hammond Laundry Cleaning Machinery Company of Shreveport, Louisiana, and shipped directly to the Crim Furniture Company in Henderson. Jenkins, who operated several laundromats in and around Henderson, was contacted by a salesman for United Furniture Company around the latter part of July, 1968, in regard to the purchase of some laundry equipment, including the Bock Centrifugal Extractor, which had been used by a Mr. Neal, who was terminating his laundry business. The record does not show how ownership passed from Neal to United Furniture. The extractor was purchased by Jenkins from United Furniture and installed at the Blue Ribbon Cleaning Center. No operating instructions or equipment manual were with the extractor or furnished to Jenkins. The machine was placed in operation and apparently worked satisfactorily until the unfortunate accident which is the basis of this suit.

On September 1, 1975, George Jr. accompanied his mother to the Blue Ribbon Cleaning Center for the purpose of helping with the family laundry. While there, she told George to remove a load of clothes from this extractor. George turned off the machine and, after a short delay, opened the lid. The extractor was equipped with a safety device to prevent the lid from opening while the basket was still spinning. However, when George lifted the lid of this machine, the safety device did not operate. Although the lid opened easily, the basket was still rotating at a very high rate of speed. George’s arm was caught in the machine and severed almost immediately. There was testimony that the energy created by the rotating basket was so great it could have actually sucked the boy’s arm into the machine when the lid was opened.

The evidence is uncontradicted that the safety device on the machine was defective at the time of the accident and that the defect was a producing cause of George’s injuries. It is now firmly established in Texas that a manufacturer is liable for unreasonably dangerous products— whether designed defectively and manufactured as designed, or whether designed perfectly, but defectively manufactured. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex.1968); Restatement (Second) of Torts §§ 395, 398 (1965). A defect in a product at the time of an accident is not alone enough to render the manufacturer strictly liable. Therefore, the question before us is whether there is evidence to support the jury finding that the machine was defectively designed at the time it was sold, and that the defect was a producing cause of the failure of the safety device on September 1, 1975.

At trial two expert witnesses testified that they had examined the machine. Mr. Stern, a licensed professional engineer with nearly 40 years experience as a private consulting engineer, examined the machine at the request of Miller two or three days after the accident. Dr. Perry, a licensed professional engineer who has taught mechanical engineering at Texas A & M University since 1948, examined the machine at the request of Jenkins a few days after the accident and also at his laboratory in Bryan. Both testified directly and unequivocally that the failure of the safety device was the result of defective design.

Bock urges that the direct testimony of the two experts is without probative force in that the evidence conclusively establishes that the extractor, specifically the safety device, was not defective at the time of manufacture, and in fact, it had worked satisfactorily for over 18 years. It urges it was thus entitled to a directed verdict under the rule established in Henderson v. Ford Motor Co., supra. The issue posed in Henderson can be paraphrased to apply to this case as follows: Did some feature of the form or material or operation of the extractor threaten harm to persons using the machine to the extent that any extractor so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks or to the extent that the extractor would not meet the reasonable expectations of the ordinary consumer or user as to its safety? See also General Motors v. Hopkins, 548 S.W.2d 344 (Tex.1977).

To answer this question, we must consider the expectations of the manufacturer and the nature of the defect. Mr. Clement, the president of Bock, testified that these extractors were manufactured to last for many years — certainly more than 18 years with proper service and maintenance. Some were in service that were 30 to 40 years old. He also stated that the safety device is supposed to last the life of the machine. The two experts emphasized that the minimum requirement of any safety system is to outlast the useful life of the machine. This evidence supports an inference that this extractor was designed with the intent it would still be in service on September 1, 1975. Clement admitted that an unreasonable risk of harm to the user would exist if the lid could be raised while the basket was still spinning.

To understand the nature of the defect, one must understand the operation of the safety device. The hinged lid of the extractor is connected at the back to a metal rod which runs down the side of the machine. This vertical rod is then linked by a lever to a spring-loaded rod which runs horizontally underneath the clothes basket. If the lid is raised, the vertical rod is necessarily pushed down, which in turn moves the horizontal rod. However, when the basket begins to rotate, the centrifugal force created raises a metal collar up, along the axle on which the basket rotates, into a position behind the horizontal rod. This prevents the rod from moving and the lid from opening. Most of the operating mechanism as well as the clothes basket is a self-contained unit apart from the exterior housing to which the safety rods are attached. This mechanism is connected to the housing only at a ledge or rim which runs around the inside of the housing near the bottom. To prevent noise and vibration, there are four rubber pads on this ledge on which the operating mechanism rests. The two expert witnesses testified that the failure of the safety device to operate on this extractor was brought about as a result of a deterioration or shrinking of one of the pads which caused the unit containing the operating mechanism to slip down about an eighth of an inch. This allowed the rod to pass completely over the collar, permitting the lid to be raised even though the basket was rotating.

These witnesses expressed the opinion that the design was defective in that rubber was used for the pads despite the fact that rubber was known to deteriorate when in contact with oil and the ozone given off by the electric motor. One of the rubber pads was located close to the tube where the machine was oiled before it left the factory and was thus very likely to get oil drops on it. This pad, on which traces of oil were found, had deteriorated appreciably more than the other pads.

While Clement did not contradict the testimony of the two expert witnesses, he emphasized that this type safety device had been successfully used for years in the laundry industry. The expert witnesses testified, however, that a prudent manufacturer in 1957 should have made the pads of neo-phrene or chloroprene in lieu of rubber in that these products were known to be impervious to oil deterioration. There was also testimony that, in any event, an electrically operated magnetic or time latch should have been attached to insure that the lid could not be opened while the machine was running.

Bock also urges that the defect was brought about by lack of any type of maintenance by Jenkins during the seven years he owned the extractor. Issues were submitted to the jury to establish this contention. Although the jury found that Jenkins was negligent in failing to inspect the extractor and in failing to obtain a manual of instructions, it found that none of such acts was a proximate cause of the occurrence in question. No complaint is here made of these findings. Nor can it be said that these essential findings are established as a matter of law. A prudent manufacturer could anticipate that the manual of instructions would become separated from the machine over the years, yet there was nothing printed on the extractor itself which called attention to the necessity for inspecting the rubber pads to prevent this unreasonable risk of harm to users. The pads could not be seen without dismantling the machine or, at least turning it over on its side and removing the housing. In the meantime, the extractor worked satisfactorily and there was nothing to alert Jenkins to the impending failure.

We conclude that there is evidence, and clearly more than a scintilla, to support the findings of the jury that the extractor was defectively designed and that this defect was a producing cause of the injuries to George Miller, Jr. Therefore, the trial court erred in granting Bock’s motion for judgment non obstante veredicto and entering the take-nothing judgment.

When a trial court has entered judgment non obstante veredicto, and an appellate court concludes that this was error, it must reverse the judgment of the trial court and enter judgment in harmony with the verdict, unless the respondent presents by cross-points grounds sufficient to vitiate the jury’s verdict or to prevent affirmance of the judgment had one been entered on the verdict. Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967).

Bock filed six cross-points in the court of civil appeals whereby it complains of (1) the exclusion from the jury of evidence of the settlement made by Jenkins with the Millers; (2) the refusal to grant a mistrial because of a question by Jenkins’ attorney to Bock’s president regarding an alleged similar accident; (3) and (4) improper argument by Miller’s attorney; (5) exclusion of evidence offered by Bock; and (6) submission of the question of design defect by general issue. All of these cross-points are within our jurisdiction.

Bock urges that the trial court committed reversible error in refusing to admit evidence showing that Jenkins had settled Miller’s suit against him and that he had been effectively indemnified from further loss by Miller. ’In General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977), we held that it was reversible error to exclude evidence of a “Mary Carter” settlement agreement whereby the settling defendant acquired a direct financial interest in plaintiff’s lawsuit. In so holding, we distinguished that type of settlement agreement from an ordinary settlement agreement which is properly excluded from the jury. The settlement agreement entered into here was not a “Mary Carter” agreement because Jenkins did not acquire a financial interest in Miller’s recovery against Bock. Accordingly, the trial court did not err in excluding evidence of this settlement agreement. McGuire v. Commercial Union Insurance Co. of New York, 431 S.W.2d 347 (Tex.1968).

Bock asserts by its second cross-point that the trial court erred in not granting a mistrial because counsel for Jenkins asked Clement if he did not know of a similar accident which had occurred in Odessa, Texas, prior to the accident in question. This question was probably invited by the testimony of Clement on direct examination regarding Bock’s long and satisfactory use of this design. In any event, the trial court promptly sustained the objection to the question and instructed the jury to disregard it.

Bock complains by two points that the attorney for Miller was guilty of improper jury argument when he argued that the accident could have been avoided if the machine had been equipped with a locking device and also in arguing that Bock made no effort to send out warnings about the need for maintenance of the machine. Only the opening argument of the attorney for Miller is in the record, and the record does not show that any objection was made during the argument. There is a hand-written sheet of paper in the transcript which reads as follows:

Bock objects to argument by Rex Houston—request court to instruct jury not to consider—
(1) Safe way was to use a latch on machine.
(2) Bock made no effort to send out warnings to dealers Hammond, Crim or anyone.
(3) Because it is unsworn testimony of attorney Houston—no testimony on the latch.
(4) Court has ruled out Exhibits DB # 18 and # 19. Unsworn testimony of Attorney Rex Houston.
/s/ Earl Sharp
Attorney for Bock
Overruled
/s/ Harold D. Bateman, Judge
5-10-76 10:15 a.m.

This instrument was filed on June 18,1976. Even assuming that it constitutes a valid objection by Bock’s attorney to the argument of Miller’s attorney, it is apparent that the objections were not made so as to permit any opportunity to “cure” any error. They were all presented to the trial judge at the same time although they have obvious references to different portions of the argument. Any error in this argument could have been cured by prompt objection, and instruction by the trial judge. By failing to timely object, Bock has waived his right to complain of the argument. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968).

Bock also urges that the trial court erred in excluding a copy of a letter purportedly written by Bock to all its dealers in November, 1964, and an insertion in a July, 1965, trade magazine wherein Bock offered to supply stickers to be applied to all extractors with the warning:

FOR YOUR SAFETY
DO NOT FORCE THE LID
DO NOT ATTEMPT TO LOAD OR UNLOAD
IF BASKET IS SPINNING

There was no showing that either of these excluded documents was seen by Jenkins or United Furniture and, admittedly, there was not a sticker on the machine in question.

Finally, Bock asserts that the issue inquiring whether or not the machine was designed defectively was submitted too broadly. The trial court did not err in submitting the question of whether the Bock laundry machine was designed defectively at the time the machine left the Bock plant to enter the channels of commerce along with the definitions of “Defective Design” and “Unreasonable Risk of Harm.” A broad submission such as this is fully authorized under Rule 277, Tex.R.Civ.P.

We have considered all of Bock’s cross-points in the light of the record before us. It cannot be said that any error of the trial court complained of by Bock amounted to such a denial of Bock’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Accordingly, the cross-points are overruled. Rule 503, Tex.R. Civ.P.

The judgments of the lower courts are reversed and judgment is here rendered in accordance with the jury verdict that George Miller, Sr., as next friend of George Miller, Jr., shall recover of and from Bock Laundry Machine Company the sum of $250,000 for injuries to George Jr., and that George Miller, Sr., individually, shall recover the sum of $1,000 for necessary medical expenses, together with all costs of court and interest as provided by law.

ON REHEARING

DANIEL, Justice,

dissenting.

I would grant the motion for rehearing and reverse and render, because the lower courts were correct in their holdings that Bock Laundry Machine Company was entitled to a directed verdict as a matter of law.

In the alternative, the case should be remanded for a new trial in which the jury would be allowed to know the true non-adversary status of the plaintiffs and the defendant, Luther Jenkins, which status was created by their settlement agreement. Defendant Jenkins (d/b/a Blue Ribbon Cleaners) settled with the plaintiffs for $45,000, but remained in the trial as an ostensible adversary against plaintiffs. Jenkins’ testimony and cooperation with plaintiffs were obviously instrumental in the jury’s verdict against Bock alone for $250,000 to compensate for the total damages suffered by plaintiffs. Over the objection of Bock, the settlement agreement was kept secret from the jury, which was totally ignorant of the $45,000 payment made by Jenkins to the plaintiffs and the absolute indemnity agreement which plaintiffs had given Jenkins against any further liability to anyone by reason of the accident.

Bock Entitled to Judgment As a Matter of Law

The uncontroverted evidence establishes that the Bock extractor was designed and manufactured in 1957 in accordance with techniques then common to manufacturers in the same industry, and that the machine worked satisfactorily for eighteen years after shipment to the original purchaser. There was no evidence that the machine was defectively designed or manufactured at the time it left Bock’s plant in 1957, or that it was unreasonably dangerous to the purchaser or user at that time. Neither was there evidence of any such dangerous condition at the time the extractor was purchased by Jenkins as a secondhand machine in 1968. Jenkins’ testimony was un-contradicted that the machine, including the lid-locking safety device, worked satisfactorily from the day he purchased the machine until the accident on September 1, 1975. It is further undisputed that the lid-locking safety device failed to become engaged on the day of the accident because of deterioration and shrinkage of the rubber mounting pads due to long use, wear, tear and possible contact with a petroleum product during the intervening years. The four rubber mounting pads on the bottom frame of the machine were to prevent vibration and noise. They had an original thickness of three-eighths of an inch. By September 1,1975, after 18 years of use and without any known inspection or replacement as recommended in Bock’s manual of instructions, one or more had shrunk one-eighth of an inch, thus lowering the superstructure so that the automatic lid-closing safety device did not go into operation.

Strict liability as to Bock depends as a matter of law, not upon whether a defect in the machine existed on the date of the accident in 1975, but whether this machine (and any others of the same design) was unreasonably dangerous at the time it left Bock’s plant in 1957. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974); Section 402A, Restatement of Torts 2d (1965).

Paraphrasing Henderson, supra: The question is whether the Bock extractor, and all extractors of the same design, were unreasonably dangerous from the time of manufacture. Did some feature of the form or material or operation of the extractor threaten harm to persons using the extractor to the extent that any extractor so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use or to the extent that the extractor would not meet the reasonable expectations of the ordinary user as to its safety? The Bock extractor proved to be a safe machine so long as it was properly maintained.

Section 402A does not make manufacturers liable for subsequent defects caused by normal wear and tear, misuse or failure of normal maintenance by the purchaser. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Comment g., Section 402A, Restatement of Torts 2d (1965). In Kuisis, supra, the Supreme Court of Pennsylvania said:

“. . . The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. But in certain situations the prolonged use factor may loom so large as to obscure all others in a case. . . . ”

Section 402A, supra, makes it quite clear that the seller or manufacturer is not liable when he delivers the product in a safe condition and subsequent mishandling, neglect, or failure to maintain, renders the product harmful or dangerous. This rule fits the undisputed facts of the present case. Bock warned in its manual of instructions that the rubber pads should be inspected yearly and replaced when necessary. Further, it placed a metal nameplate on the front of its extractor, which notified all subsequent owners as follows: “Read instructions for operation and care of machine before using.” A photo of this metal plate, showing the exact size, and a photo of the extractor, are reproduced herewith to show the prominence given to this notice concerning the instructions for operation and care of the machine.

[See following illustration.]

Photo of plate affixed to the Bock extractor.

Photo of extractor, showing location of the above metal plate.

When Bock shipped the extractor to the original Texas purchaser in 1956, it had with it a Warranty and Registration Card which read in part: “Bock Extractors are guaranteed to be of the highest quality. They will give many years of satisfactory service if properly maintained . It is the user’s responsibility to operate this machine in accordance with the related instructions.’’ (Emphasis supplied.) The warranty recited that it would be void, “If the ‘Bock’ nameplate [above] is removed or altered in any way.” Also accompanying the machine was a printed sheet entitled “Installation and Operating Instructions” on which it was stated under the heading of Maintenance: “Brake Friction Facing and Rubber Mountings should be inspected at least annually and replaced when necessary.” The packet also had a four-page folder entitled “Operating and Maintenance Instructions” which advised: “Inspect, Correct or Replace as Necessary . . . The Trunion and Bumper Rubbers. — The Rubber Parts should be replaced if there is any free play or if it has lost its liveliness.” Another enclosure was a “Parts Price List” which carried under “Parts Most Frequently Required” a set of four “Bumper Rubbers” [heretofore referred to as rubber mountings] for one dollar, with the suggestion that an $8.00 kit containing these and other spare parts be maintained on hand.

The record does not show what happened to these instructions for operation and care of the machine after it was shipped to the original purchaser in 1957. However, Jenkins testified that United had no copy of the instructions to deliver to him when he purchased the machine in 1968, and that he did not write Bock at the address shown on the machine to obtain a copy of such instructions. Jenkins was a trained and experienced mechanic, having done the repair and maintenance work on his own laundry machines for many years. At one time he had owned six different laundries and knew how to maintain the machines. He testified that he realized the importance of obtaining the instructions for operation and maintenance from the manufacturer, and he obtained from United written instructions with reference to another machine purchased from United on the same date. He did not notify Bock of his purchase or location or ask for a set of instructions because he felt like he could operate the machine from his own experience “about as well as he could learn from the instruction book.” However, Jenkins admitted that he had never inspected, oiled, or repaired the machine during the seven years that he owned and continuously operated it prior to the accident. He said he knew there was some type of safety device on the machine that prevented the tub from spinning while the lid was open, but he did not know how it worked. Jenkins admitted that in his laundry business he did not conduct inspections and preventive maintenance, but usually ran his equipment until it broke down and then fixed it.

It is clear from Jenkins’ undisputed testimony that he neglected and mishandled the machine by failing to obtain an instruction booklet and failing for seven years to inspect the rubber pads which the manufacturer contemplated that the owner would inspect at least annually, with replacement of the rubber parts when they had become worn or deteriorated. As a matter of law, this failure to inspect and maintain the eleven-year old machine for an additional seven years should relieve the manufacturer of any liability for deterioration of rubber pads, the maintenance and replacement of which were contemplated from the beginning to be the responsibility of the purchaser and operator.

The jury found that Jenkins was negligent (a) in operating and maintaining the extractor machine or in permitting it to be operated by the public without proper maintenance and repair; (b) in failing to inspect the machine; (c) in failing to comply with written instructions placed on the nameplate of the machine; and (d) in failing to obtain a manual of instructions. It failed to find, however, that any of such acts of negligence was a proximate cause of the occurrence in question. As heretofore indicated, the record establishes without dispute that the malfunction on September 1, 1975, was caused by the lack of inspection, maintenance, and replacement of the deteriorated rubber mounting pads. This responsibility for maintaining the extractor in the safe condition in which it was sold rested with Jenkins. It was his failure to discharge that duty that resulted in the injury. Such was the holding as a matter of law by the Arizona Supreme Court in a very similar case where a five and one-half year old extractor was involved. Rogers v. Unimac County, Inc., 115 Ariz. 304, 565 P.2d 181 (1977). See also Westerberg v. School Dist. No. 792, Todd County, 276 Minn. 1, 148 N.W.2d 312 (1967), a case which involved lack of maintenance of a six-year old extractor. Liability for failure to maintain an 18 year old machine should not be visited upon a manufacturer who was not responsible for the maintenance nor contributed to the lack of it. Bond v. Transairco Company, 514 F.2d 642, 645 (5th Cir., 1975). See also Kuisis v. Baldwin-Lima-Hamilton Corp., supra; Comment g. of Sec. 402A, supra.

For the reasons stated above, I would affirm the judgments of the lower courts.

      .The Court has not given further consideration to this point because it was not specified as a grounds for rehearing. Rule 515, Texas Rules of Civil Procedure. Accordingly, I must be content to state that as to future cases, agreements of this nature should not be kept from the jury solely because the settling defendant had no direct financial interest in plaintiffs recovery against a non-settling defendant. It is equally important that the jury know of a plaintiffs receipt of a substantial settlement in exchange for an indemnity agreement which results in plaintiff seeking total recovery against a non-settling defendant. In any event, the financial interest of the settling defendant is not the only feature of the “Mary Carter” type of agreements mentioned in General Motors Corp. v. Simmons, 558 S.W.2d 855, 858 (Tex. 1977), as tending to undermine the adversary nature and integrity of the proceedings against the non-settling defendant. As recognized in Simmons, secrecy concerning the agreement is the principal evil to be avoided in such cases, because the “jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants.” For instance, it is unlikely that the jury verdict in this case would have left the entire blame for total damages to the extent of $250,000 on Bock alone if it had known that Jenkins had already made a substantial settlement with plaintiffs and that plaintiffs and Jenkins did not in fact occupy the adversary role which they played throughout the trial.

      . The machine was shipped from Bock’s plant in Toledo, Ohio, to the original Texas purchaser, Leon Crim Furniture Co., on February 6, 1957. Title subsequently passed through intervening users and United Furniture Company to Jenkins (d/b/a Blue Ribbon Cleaning Center) at Henderson, Texas, on July 24, 1968. The machine worked satisfactorily until the time of the accident on September 1, 1975.

      . Plaintiffs expert, Stern, testified that, upon examination after the accident, he found that the rubber mounting pads “had shrunk, they had deteriorated.” He said that such shrinkage had rendered the safety device inoperative and that the shrinkage or deterioration was due to: “Two prime things, which one would be age or time, and the other would be that the rubber was attacked by a petroleum product . . .” He said that the deterioration was due also to wear and tear during the long period of time. Jenkins’ expert, Dr. Perry, agreed that the rubber pads, especially the one nearest the oil spout, had deteriorated and thus allowed the working part of the machine to drop enough to prevent the safety device from operating. He said the deterioration could have resulted from oil or from ozone, or from a combination thereof, plus the heat from the motor over a long period of time.


author: DENTON, Justice.

text:
    Wilford KAMARATH, Petitioner, v. C. C. BENNETT, Respondent.
    No. B-6821.
    Supreme Court of Texas.
    April 12, 1978.
    Rehearing Denied May 31, 1978.
    Michael M. Daniel and Virginia Paxton, Dallas, for petitioner.
    James H. Martin, Dallas, for respondent.
   DENTON, Justice.

This case presents the question of whether in Texas an implied warranty of habitability arises as a consequence of a landlord-tenant relationship. Wilford Kamarath, a lessee of an apartment in Dallas, Texas, filed this suit against C. C. Bennett, for damages for the breach of implied warranty of habitability of the urban residential rental property. The trial court, without a jury, rendered judgment that tenant Ka-marath take nothing. The court of civil appeals affirmed, holding the implied warranty does not exist. 549 S.W.2d 784. We granted the application for writ of error to review this determination and we reverse and remand.

The material facts, for the most part, are not in dispute. On March 1, 1975, Petitioner Kamarath entered into an oral, month to month, lease of a one-bedroom apartment from Respondent C. C. Bennett. The agreed rent was $110.00 per month with Bennett agreeing to pay all utilities. The apartment was one of four in a two story brick building owned by Bennett. Kamar-ath inspected the premises before accepting and occupying them with his family on March 1, 1975. However, his undisputed testimony was that some of the defects— ancient plumbing that burst, depriving them of hot water; faulty electrical wiring; and structural defects causing the bricks of the building to fall — were not visible to him at the time of his inspection. On June 24, 1975, building inspectors of the City of Dallas first surveyed the premises and supported Kamarath’s testimony of the defects’ nondiscoverability. The city inspected the premises some ten times between June 1975 and November 1975. The inspector stated that the same conditions existed at the time of the final inspection as existed at the time of the first inspection. The inspector testified the defects found included: “plumbing problems, electrical problems, structural failure, roof damage, cracks and damage to the exterior walls, rubbish and debris, hazardous stairs, exterior plumbing condition in violation, dilapidated structurally, walls not weatherproof — needed paint. These are all violations of our ordinance.”

Shortly after the initial inspection on June 24, 1975, Bennett received the city’s notice to either repair the premises in specific details or vacate the premises. Sometime after this notice, Bennett gave notice to Kamarath to vacate the premises. Ka-marath stopped paying rent in July 1975, claiming uninhabitability as an excuse. However, he did not vacate the premises until late September 1975.

Based on its findings of fact, the trial court concluded that the Respondent Bennett did not breach the contract with Kamarath, the tenant, or violate any duty in law owed to the tenant concerning the state of repair of the premises. The court of civil appeals affirmed and applied the common law rule, long followed in Texas, that in the absence of fraud or deceit, there is no implied warranty on the part of the lessor that premises leased for residential purposes are suitable for their intended use. Yarbrough v. Booher, 141 Tex. 420, 174 S.W.2d 47 (1948); Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d 239 (1941); Lynch v. Ortlieb, 70 Tex. 727, 8 S.W. 515 (1888); Weinstein v. Harrison, 66 Tex. 546, 1 S.W. 626 (1886); Cameron v. Calhoun-Smith Distributing Co., 442 S.W.2d 815 (Tex.Civ.App. — Austin 1969, no writ); Jackson v. Amador, 75 S.W.2d 892 (Tex.Civ.App. —Eastland 1934, writ dism’d); Weiss v. Mitchell, 58 S.W.2d 165 (Tex.Civ.App. — Dallas 1933, writ dism’d).

The law has regarded the relationship of landlord and tenant as one governed by the precepts and doctrines of property law. The lease was looked upon as a conveyance of an estate in land for a term which was based upon the mutual promises between the parties. The view was that the tenant’s promise to pay was exchanged only for the bare right of possession. The possession of the land was so central to the original common law concept of a leasehold that the rent was actually looked upon as originating or flowing from the land. 3 G. Thompson, Commentaries on the Modern Law of Real Property § 1029 at 87 (1959); Willi-ston, Contracts § 890 at 587 (3rd ed. 1962). Today the agrarian concept of landlord-tenant law has lost its credence, and has become less and less representative of the relationship existing between the lessor and lessee. The tenant is more concerned with habitability than the possibility of the landlord’s interference with his possession. The present day dweller, in seeking the combination of living space, suitable facilities and tenant services, has changed the basic function of the lease. 1 American Law of Property § 3.78 at 347 (1952). The importance of the lease of an apartment today is not to create a tenurial relationship between the parties, but rather to arrange the leasing of a habitable dwelling. Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969).

Our Legislature, like those of many other states, recognized the need and desirability of insuring adequate housing by adopting legislation granting home-rule cities one of the powers to adopt ordinances to establish minimum standards of habitation, and to enforce such standards against property that is unfit for human habitation and which constitutes a hazard to the health, safety and welfare of the citizens. Tex. Rev.Civ.Stat.Ann. art. 1175, § 35 (Vernon Supp.1978). The City of Dallas, along with other cities, has adopted a housing code, although a copy of the ordinance is not in the record. Specific violations of the city ordinance are in evidence in addition to Bennett’s admission of the existence of the ordinance, and admissions by him that his property was in violation of the housing code.

There are several factors to be considered in the appraisal of the legal principles to be applied to the present-day relationship of landlord and tenant as applied to residential leases: (1) Our Legislature has recognized that the public welfare may require that dwellings offered for rental be in a safe condition and fit for human habitation. Art. 1175, § 35, supra. (2) Common experience demonstrates that the landlord has a much better knowledge of the conditions of the premises he leases to the tenant. Housing code requirements and violations thereof are usually known, or made known, to the landlord. Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970). The landlord is in a better position to know of latent defects, such as some of those involved in this case, which might go unnoticed by the tenant who rarely has the sufficient knowledge or experience to discover defects in wiring, plumbing or structural failures. (3) It is appropriate that the landlord who will retain ownership of the premises and permanent improvements should bear the cost of repairs to make the premises safe and suitable for human habitation. See 1 American Law of Property § 3.78 at 347-48. In the present day housing market, the landlord is usually in a much better bargaining position than the tenant which could result in the rental of poor housing and violation of public policies.

In our opinion the above considerations demonstrate that in a rental of a dwelling unit, whether for a specified time or at will, there is an implied warranty of habitability by the landlord that the apartment is habitable and fit for living. This means that at the inception of the rental lease there are no latent defects in the facilities that are vital to the use of the premises for residential purposes and that these essential facilities will remain in a condition which makes the property livable. Green v. Superior Court, 10 Cal.3d 616, 111 Cal.Rptr. 704, 517 P.2d 1168 (1974); Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); Lemle v. Breeden, 51 Haw. 426, 462 P.2d 470 (1969); Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972); Mease v. Fox, 200 N.W.2d 791 (Iowa 1972); Steele v. Latimer, 214 Kan. 329, 521 P.2d 304 (1974); Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973); Rome v. Walker, 38 Mich.App. 458, 196 N.W.2d 850 (1972); Fritz v. Warthen, 298 Minn. 54, 213 N.W.2d 339 (1973); King v. Moorehead, 495 S.W.2d 65 (Mo.App.1973); Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970); Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974); Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961).

As stated in Marini v. Ireland, supra, “the very object of the letting was to furnish the defendant with quarters suitable for living purposes. This is what the landlord at least impliedly (if not expressly) represented he had available and what the tenant was seeking.” The implied warranty of habitability which we hold exists in such a case is imposed by law on the basis of public policy and it arises by operation of law because of the relationship of the parties and the nature of the transaction.

In order to constitute a breach of implied warranty of habitability the defect must be of a nature which will render the premises unsafe, or unsanitary, or otherwise unfit for living therein. Kline v. Burns, supra. The nature of the deficiency, its effect on habitability, the length of time for which it persisted, the age of the structure, the amount of the rent, the area in which the premises are located, whether the tenant waived the defects, and whether the defects resulted from malicious, abnormal, or unusual use by the tenant, are among the factors to be considered in deciding if there had been a breach of the warranty of habitability. Mease v. Fox, supra; Marini v. Ireland, supra. The existence of a breach is usually a question of fact to be determined by the circumstances of each case. Reese v. Diamond Housing Corp., 259 A.2d 112 (D.C.Ct.App.1969).

The judgments of the courts below are reversed and the cause remanded for trial in accordance with this opinion.

GREENHILL, C. J., and McGEE, J., note their dissent.

On motion for rehearing BARROW, J., concurs in result.

      . The trial court excluded testimony about the difference between the rent charged Kamarath and the fair market rental value of the premises in its state of disrepair and violation of the housing code. Since the testimony was clearly relevant to the damages, if any, Kamarath suffered, the testimony was improperly excluded. There is no point, however, on the proper measure of damages. Likewise, there is no point, counterpoint or crosspoint raising the applicability vel non of the Deceptive Trade Practices Act [Tex.Bus. & Com.Code Ann. § 17.41 et seq.] to the warranty of habitability, and we express no opinion on whether that Act applies.

      . There is no evidence in this case that Kamar-ath and Bennett expressly agreed that Kamar-ath rented the property “as is,” whether habitable or not. There is no indication the landlord Bennett expressly disclaimed any warranty of habitability. There is no crosspoint urging Ka-marath waived the warranty. Accordingly, our holding should not be construed to mean that a tenant may not, by express agreement, waive the warranty of habitability. Cf. Restatement (Second) of Property, Landlord and Tenant § 5.1 (1977) (“Except to the extent the parties to a lease validly agree otherwise . . . .”).


author: PER CURIAM.

text:
    Thresia JOHNSON, Petitioner, v. HIGHLAND HILLS DRIVE APARTMENTS, Respondent.
    No. B-6807.
    Supreme Court of Texas.
    April 12, 1978.

      Michael M. Daniel, Dallas, for petitioner.
    Steven William Buholz, Dallas, for respondent.
   PER CURIAM.

The application for writ of error is refused with the notation, “NO REVERSIBLE ERROR.” The Court of Civil Appeals held that there is no implied warranty of habitability in Texas, and, on that basis, affirmed in part. Tex.Civ.App., 552 S.W.2d 493. Our opinion in Kamarath v. Bennett, 568 S.W.2d 658 (Tex.1978), has established such an implied warranty in this State under certain factual situations. However, the Court of Civil Appeals additionally held that even should a warranty of habitability be adopted in Texas, the facts of this ease dealing with the provision of mail facilities would not constitute a breach of such warranty. We agree.


text:
    Marvin ZINDLER, Petitioner, v. The AMERICAN NAZI PARTY and Southwestern Bell Telephone Company, Respondents.
    No. B-7469.
    Supreme Court of Texas.
    July 12, 1978.
    Joe Felton, Houston, for petitioner.
    Michael Anthony Maness, James M. Shat-to, Houston, for respondents.
   PER CURIAM.

We agree with the court of civil appeals, 561 S.W.2d 247, that this petitioner has not shown the necessary standing with which to seek injunctive relief. We therefore refuse the application for writ of error with the notation, no reversible error.

In doing so, we concur with the statement of the court below which describes the language used in the telephone messages as “vicious, disgusting and repugnant to all decent persons,” and which encourages the appropriate public officials to examine the conduct of the Nazi Party to ascertain whether or not such conduct is illegal, and if so, to take the authorized steps to control it.


author: EVANS, Justice.

text:
    GOODPASTURE, INC., Appellant, v. Luther S. HOSCH, Appellee.
    No. 17080.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 11, 1978.
    Rehearing Denied July 13, 1978.

      Fulbright & Jaworski, Russell H. McMains, Houston, for appellant.
    Wm. E. Hornbuckle, III, Sugar Land, for appellee.
   EVANS, Justice.

The sole issue in this venue matter is whether the trial court’s finding of negligence based upon the doctrine of res ipsa loquitur has support in the evidence.

The plaintiff, Luther S. Hosch, brought this action against Goodpasture, Inc. in Harris County, Texas, alleging that he had sustained injuries as the result of an explosion of a grain storage elevator owned and operated by Goodpasture on the Houston Ship Channel. Goodpasture filed a plea of privilege seeking to have the action transferred to Terry County, the county of its residence and domicile. The plaintiff then filed a controverting plea alleging the action to be maintainable in Harris County under the provisions of subdivisions 9a and 23, Art. 1995, Tex.Rev.Civ.Stat.Ann.

The trial court denied Goodpasture’s plea of privilege, finding that it had a representative in Harris County at all material times; that the plaintiff had been injured by falling concrete from the grain elevator which was under the management and control of Goodpasture at the time of the explosion; that grain dust is explosive when ignited; that the character of the explosion and the circumstances attending it lead reasonably to the belief that in the absence of negligence it would not have occurred; that an inference of negligence on the part of Goodpasture arises in this case under the doctrine of res ipsa loquitur; and that Goodpasture’s evidence was insufficient to explain, rebut or otherwise overcome such inference. The trial court concluded from these and other findings that venue is maintainable in Harris County under subdivisions 9a and 23, Art. 1995, and that the plaintiff might rely on the doctrine of res ipsa loquitur to infer negligence in establishing a cause of action under those subdivisions.

In order to establish venue under either of the subdivisions relied upon by the plaintiff, a cause of action must be pleaded and proved by competent evidence presented at the venue hearing. Texas High School Gymnastics Coaches Association v. Andrews, 532 S.W.2d 142 (Tex.Civ.App.— San Antonio 1975, writ dismissed). It is the position of Goodpasture, asserted in eight points of error, that the plaintiff failed to meet its burden in this respect and that the evidence is legally and factually insufficient to support the trial court’s finding that it had committed an act of negligence in the county of suit and that the doctrine of res ipsa loquitur is applicable to the occurrence in question. Goodpasture particularly argues that there was no evidence as to the cause of the explosion and no evidence to establish that the explosion was caused by an agency or instrumentality under its exclusive control.

The doctrine of res ipsa loquitur, as applicable in Texas, permits the trier of fact to base an inference of negligence upon circumstantial evidence of negligence where it appears that the character of the accident is such that it would not ordinarily occur in the absence of negligence and the evidence shows that the instrumentality causing the injury was under the management and control of the defendant. Owen v. Brown, 447 S.W.2d 883 (Tex.1969); Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). In many cases the plaintiff may rely upon general knowledge to prove that the accident was of the type which does not ordinarily happen in the absence of negligence; in others expert testimony on this factor may be necessary to the plaintiff’s case. Mobil Chemical Co. v. Bell, supra, at page 252. The plaintiff must affirmatively establish the factor of control in order to support an inference that the defendant was the negligent party. Owen v. Brown, supra.

The plaintiff testified that on the day of the explosion he was employed by an export packing company and was working at a location some 300 to 400 feet from the grain storage elevator. He testified that he knew where the explosion happened, but did not know why; that there was a sudden eruption and he was then hit by falling concrete.

The only witness other than the plaintiff who testified at the venue hearing was Mr. Warren Johnson, who had been employed as a special agent of the U. S. Treasury Department at the time of the explosion, and who was employed by Goodpasture at the time of the hearing. Mr. Johnson, called as a witness by the plaintiff, testified that he was in charge of a Treasury Department team to investigate the explosion and to try to ascertain the cause. His testimony indicated that the end result of his team’s investigative effort was “inconclusive” as to the cause of the explosion. He acknowledged that he had received “some reports” that the explosion vents in the elevator had caught fire prior to the explosion, but the basis for such reports was not established and his testimony in that respect has no probative value. His testimony concerning the cause of the explosion was as follows:

“Q. All right. Now let me ask you this. Isn’t it true and isn’t it within your knowledge that fire or spark can touch off grain dust within a grain elevator and make it blow up?
“A. Under the right conditions.”

In response to the plaintiff’s request, Goodpasture admitted that on the date in question it owned and operated a grain storage elevator on the Houston Ship Channel in Harris County and that on that date its employees were operating the grain elevator. It further admitted that on the date in question there was a fire and explosion in the grain elevator and that it knew that grain dust can explode under certain conditions. These admissions conclusively established Goodpasture’s management and control of the grain storage elevator at the time of the explosion.

Those who deal with dangerous substances owe a degree of protection to the public proportionate to the danger involved. Smith v. Koenning, 398 S.W.2d 411, 416 (Tex.Civ.App. — Corpus Christi 1965, writ ref’d n. r. e.). In view of the testimony indicating the explosive nature of grain dust, the trial court was justified in concluding that Goodpasture had failed in its duty to exercise reasonable care in the management and control of its grain storage elevator and that its negligence was the proximate cause of the explosion.

The facts of this case distinguish it from those where two or more possible causes of the accident are indicated and it is not more reasonably probable that the accident occurred due to the negligence of the defendant than to any other cause. City of Houston v. Church, 554 S.W.2d 242 (Tex.Civ.App. — Houston, 1st, 1977, writ ref’d n. r. e.); Trinity Universal Insurance Co. v. Cattleman’s Steak House, 470 S.W.2d 224 (Tex.Civ.App. — Amarillo 1971, no writ). Although the doctrine of res ipsa loquitur is inapplicable where it cannot be reasonably inferred from the evidence that the accident resulted from the defendant’s negligence, the plaintiff is not required to exclude every other possible cause of the occurrence. Burlington-Rock Island Railway Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943); J. Weingarten, Inc. v. Obiedio, 515 S.W.2d 308 (Tex.Civ.App. — Houston, 1st, 1974, writ ref’d n. r. e.).

The evidence in the case at bar established that Goodpasture controlled the premises where the potentially explosive grain was stored, and, even though the origin of the fire or spark was not shown, the trial court properly concluded that Goodpas-ture controlled the “thing or instrumentality” which caused the explosion. Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Tex.Civ.App. — Fort Worth 1960, no writ). Since the evidence presented by the plaintiff made out a prima facie case of negligence under the rule of res ipsa loquitur, it was incumbent on Goodpasture to introduce evidence to explain, rebut or otherwise overcome the inference that the injury complained of was due to its negligence. Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (1935). There being no evidence that the explosion was probably caused by some condition or instrumentality other than that within Goodpasture’s management and control, the trial court was justified in deciding that the explosion was of such character as would not have occurred in the absence of Goodpasture’s negligence.

The trial court’s order overruling Good-pasture’s plea of privilege is affirmed.