author: COOPER, Chief Justice.

text:
    The TRAVELERS INSURANCE COMPANY and Vol Construction Co., Inc., Appellants, v. Paul FLATFORD, Appellee.
    Supreme Court of Tennessee.
    June 6, 1977.
    W. Morris Kizer, Arthur G. Seymour, Jr., Frantz, McConnell & Seymour, Knoxville, for appellants.
    Robert T. Mann, Mann & Justice, Knoxville, for appellee.
   OPINION

COOPER, Chief Justice.

Vol Construction Company, Inc. and its insurance carrier, The Travelers Insurance Company, have appealed from the decree of the Chancery Court of Knox County awarding appellee, Paul Flatford, benefits under the Workmen’s Compensation Act. The appellants insist there is no competent material evidence to support the chancellor’s finding that appellee is totally and permanently disabled. Corollary to the primary issue, appellant insists (1) the trial judge erred in admitting into evidence medical testimony that appellee “possibly” had a ruptured disc in the lower lumbar area, and (2) that the testimony of the treating physician on the issue of permanency was contradicted by his clinical findings, and consequently lacked probative value. Appellants also insist that the treating physician’s determination of permanent disability was based solely on appellee’s subjective complaints and was not competent to support an award of permanent disability.

Appellee, now thirty-four years of age, only has an eighth grade education and is without specialized skills or training for work other than as a laborer. On June 20, 1975, while working as a laborer for the Vol Construction Company, appellee was applying the brakes on a tractor while another employee connected a back hoe. In the course of the procedure the back hoe, which had not been pinned properly, slipped and fell on appellee, pinning him to the seat of the tractor and then knocking him from the tractor onto the ground. Immediately after the accident, appellee complained of pain in his lower back and left leg and was taken to the emergency room at the University of Tennessee Hospital. Subsequently, he was referred to Dr. Charles Gouffon, an orthopedic specialist, for treatment.

Dr. Gouffon testified that on initially examining appellee “we felt it was reasonable to think there was a possibility [appellee] had a ruptured disc.” On July 12,1975, the occasion of appellee’s discharge from his first period of hospitalization, Dr. Gouffon diagnosed appellee’s injury as “an acute lumbar strain.” Dr. Gouffon also noted in his discharge summary that appellee had muscle spasm in the lumbar region. No other objective signs of injury were noted by Dr. Gouffon during his treatment of appellee, including a second period of hospitalization. He did state, however, that:

“This man’s [appellee’s] symptoms of pain, loss of motion tenderness to fist percussion, are all very subjective. There is no question about that. But the man has had the same complaints over a period of six months; persistently the same complaints lend at least a degree of objectivity to these complaints. Now, in that even the most intense malinger would have a hard time remembering exactly what he told you six weeks ago or bending in exactly the same way. I don’t want, therefore, for everyone to assume that this man has objective evidence of a problem. He does not. But he at least has persistent subjective complaints that haven’t changed.”

Dr. Gouffon concluded from his examination and treatment of appellee that appellee can not do repetitive bending or prolonging standing without suffering recurrent back pain, and that appellee should limit his weight lifting to twenty pounds, unless surgery is performed. Dr. Gouffon further testified that appellee has a permanent partial disability of ten percent to the body as a whole on a clinical basis.

The record also contains written statements of Dr. Gouffon to the effect that appellee “probably” has a ruptured disc, and that his “total disability will be permanent unless he submits to surgery.” Dr. Gouffon explained that the statements were given appellee to aid him in obtaining food stamps and payment of disability credit insurance on a loan by Cumberland Capital.

Also on the issue of disability, Dr. Gouf-fon wrote counsel for appellee on February 13, 1976, three months before trial of this case, that:

“Mr. Flatford probably should limit his weight lifting to less than 20 lbs. unless he has surgery performed. If the surgery is performed and is successful, I would think that he might well return to full work without any limitations on the weight he could lift.”

The record also shows that when in the course of treatment, surgery became a possibility, appellee requested a second medical opinion. Dr. Gouffon then referred appel-lee to Dr. Dennis Coughlan, an orthopedic specialist, who examined appellee on August 26,1975, and September 15,1975. The report prepared by Dr. Coughlan, which was admitted in evidence by agreement, discloses that he “found lumbar paraspinal muscle spasm” present on examination of appellee, and that:

“In view of the present findings and the continuation of symptoms that this man’s back will probably have to be explored sometime sooner or later. If a ruptured disk or extruded fragment is found, I think he probably will benefit considerably from surgery. If no ruptured disc is found he may very well be made worse by surgery.”

The chancellor concluded from this medical evidence and from testimony of appellee as to his physical condition, that appellee “has a disabling injury to the back, which is probably a back strain and possibly a ruptured disc. And that the situation in which he finds himself is the result of the accident at his employment.” The chancellor went on to state that he was certain “it would be a misapplication of the act to make a finding that [appellee] did not sustain and continue to have injury where the only way to precisely determine what is wrong with him is to have an operation, which may cause him further injury.” The chancellor, pointing to the fact that the limitation placed on appellee’s ability to work by his injury effectively took him out of the market for a laborer, found that appellee was “one hundred percent disabled.”

Recognizing that Dr. Gouffon’s testimony, on its face, is sufficient to support the chancellor’s findings, appellant insists that the testimony is “so self-contradictory and speculative with respect to the permanence of [appellee’s] injuries that it lacks probative value.” On reading Dr. Gouffon’s testimony in context, we find it to be neither contradictory nor speculative. There is no doubt but that Dr. Gouffon was convinced that appellee has a permanent partial disability from an on-the-job injury, which affects appellee’s ability to work as a laborer. At most, it can be said that Dr. Gouffon is not sure whether the injury is to a disc or is an acute lumbar sprain but, as pointed out by the chancellor, that doubt can not be resolved by anyone short of the performance of surgery on appellee.

Appellant also insists that Dr. Gouffon’s testimony on the issue of permanence of disability is based solely on subjective symptoms and thus is without probative value, citing Bishop Baking Co. v. Forgey, 538 S.W.2d 602, 604 (Tenn.1976) and Reynolds v. Liberty Mutual Ins. Co., 496 S.W.2d 890 (Tenn.1973). In the cases cited, this court held that testimony of an examining physician on the issue of permanency of injury had no probative value where his testimony was based solely on subjective complaints. But that is not the situation in this case. Dr. Gouffon was the treating physician. As such, his evaluation of appel-lee’s physical condition was not based solely on appellee’s subjective complaints, but was based on several physical examinations, some of which revealed objective signs of injury, the treatment afforded appellee over several months and appellee’s response to that treatment. The fact that Dr. Gouf-fon noted no objective signs of injury on several examinations of appellee, though important in evaluating Dr. Gouffon’s testimony, per se would not destroy the probative value of his testimony on the nature and extent of appellee’s injuries.

Judgment affirmed. Costs are adjudged against appellants.

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


source: Caselaw Access Project

license: Public Domain

text:
    James MacArthur WRIGHT, a minor by next friend Sherry Ann Patterson, Appellant, v. The PRUDENTIAL INSURANCE CO. OF AMERICA, Appellee.
    Supreme Court of Tennessee.
    June 6, 1977.

      Flynn & Flynn, Hugh F. LaRue, III, Knoxville, for appellant.
    Frantz, McConnell & Seymour, Fred H. Cagle, Jr., Knoxville, for appellee.
   OPINION

COOPER, Chief Justice.

This is an action to recover benefits allegedly due under a group policy of life insurance issued by the Prudential Insurance Company pursuant to the terms of the Servicemen’s Group Life Insurance Act. 38 U.S.C. §§ 765-779. James MacArthur Wright brought suit by next friend, Sherry Ann Patterson, claiming to be the illegitimate son of Jimmy Ray Wright. Mr. Wright died on March 29, 1972, while á member of the United States Army and while insured under a group policy of life insurance issued by Prudential. The trial judge dismissed the action on motion for summary judgment, holding in effect that Prudential had discharged its liability under the policy by payment of benefits to the insured’s parents since no claim was filed within a year of the insured’s death by a beneficiary having precedence over the parents. Appellant insists the trial judge erred in holding that Prudential had made payment in compliance with the terms of the policy and with 38 U.S.C. § 770(b), and in failing to apply the statute of limitations set forth in 38 U.S.C. § 784(b). We find no merit in either insistence and affirm the judgment entered in the trial court.

The Servicemen’s Group Life Insurance Act authorizes the Administrator of Veterans’ Affairs to purchase from private insurance companies group life insurance policies providing benefits specified in the Act for members of the uniformed services who are on active duty. 38 U.S.C. § 766(a). The Act specifies, among other things, the duration and termination of coverage (§ 768) and the designation of beneficiaries and the manner in which payment is to be made if no beneficiary is designated (§ 770). Specifically, 38 U.S.C. § 770 provides in subsection (a) that the proceeds payable under a policy of Servicemen’s Group Life Insurance are payable first to the beneficiary or beneficiaries designated by the serviceman and, if no beneficiary is designated, then to the surviving spouse and, if none, then to the child or children of the insured serviceman and, if none, then to the parents of the serviceman.

Subsection (b) provides that:

“(b) If any person otherwise entitled to payment under this section does not make claim therefor within one year after the death of the member or former member, ., payment may be made in the order of precedence as if such person had predeceased the member or former member, and any such payment shall be a bar to recovery by any other person.”

The provisions of subsections (a) and (b) are included in Section 8 of the group policy of life insurance issued by Prudential.

The parties stipulated that Jimmy Ray Wright did not name a beneficiary' to receive the proceeds of the group policy but, rather, designated that the proceeds should be paid “by law,” which means that payment of the proceeds was to be made in the statutory order of precedence established by 38 U.S.C. § 770(a). According to the stipulation of the parties, Jimmy Ray Wright’s record of emergency data dated February 28,1972, indicated he was unmarried, had no children, and that his parents were Mack A. Wright and Lillian I. Wright. On April 25, 1972, Prudential paid the policy proceeds to the parents of the insured.

The parties further stipulated that appel-lee was born on November 2, 1972. The first demand on behalf of appellee for payment of the policy proceeds was made on August 12,1975, when Sherry A. Patterson, the natural mother of appellee, wrote Prudential.

Under the express terms of § 770(b), set forth above, and Section 8 of the policy of insurance issued by Prudential, appellee’s payment of the policy proceeds to the parents of Jimmy Ray Wright,' coupled with appellant’s failure to make claim for payment within one year of the death of Jimmy Ray Wright, constitutes a bar to appellant’s recovery of benefits.

Seeking to avoid the literal effect of § 770(b), appellant insists that since ap-pellee paid the insurance proceeds to the parents of Jimmy Ray Wright earlier than one year after their son’s death, appellee can not rely on the payment as a bar to appellant’s claim. There is nothing in Section 770(b) that requires the insurer to wait one year before paying the policy proceeds in order to rely upon the payment as a bar to recovery by any other person. It states that, if no claim is made within the year by a person who is otherwise eligible, then payment to another eligible beneficiary claiming within the year constitutes a bar to recovery by any other statutory beneficiary who has precedence over the insured’s parents, when the beneficiary’s claim is filed within the statutorily prescribed one year period. It takes both the payment of benefits and the passage of one year from the date of death of the insured without the filing of a claim by a beneficiary under the Act to discharge appellant’s liability under the group policy of life insurance. Cf. Coomer v. United States, 471 F.2d 1 (5th Cir.1973). Here, no claim was filed by a beneficiary other than the insured’s parents within the requisite one year period; consequently, payment to the parents was effective to discharge appellant’s liability for payment of benefits provided in the group life insurance policy.

Appellant also insists that 38 U.S.C. § 784(b) — which provides a six-year statute of limitations and, in the case of persons under legal disability, an additional three years after the removal of the disability in which to bring suit — is applicable to the present action. We disagree. 38 U.S.C. § 784(b), applies by its terms only to actions brought “on yearly renewable term insurance [between the Veterans’ Administration and any person or persons claiming thereunder], United States Government life insurance, or National Service Life Insurance.” Service Group Life Insurance Policies are not included, which is logical — for if § 784(b) was applicable to such policies, it would make § 770(b) meaningless.

Judgment affirmed. Costs incident to the appeal are adjudged against appellant.

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


author: McAMIS, Special Judge.

text:
    David SHERLIN et al., Plaintiffs-Appellants, v. James E. ROBERSON, Administrator, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 15, 1976.
    Certiorari Denied by Supreme Court March 15, 1977.
    Andrew J. Sinor, Cleveland, for plaintiff s-appellants.
    Mayo L. Mashburn, Cleveland, for defendant-appellee.
   OPINION

McAMIS, Special Judge.

This case is before the court solely on the technical record and a bill of exceptions reflecting only what occurred when the court overruled plaintiffs’ motion for a new trial following a jury verdict for the defendant administrator. Plaintiffs have appealed from a judgment dismissing their suit.

We find it necessary to decide the single question: Did the trial judge approve the verdict as the thirteenth juror? We quote in full the remarks of the trial judge in overruling plaintiffs’ motion for a new trial:

“Well, as I stated in my statements Monday, I think that the Court has to be reasonable as the thirteenth juror and basically at the time the Motion for Directed Verdict was made the Court pretty well made its mind up at that time that there were certain questions of fact which had to be determined by the jury, and I can’t say the jury reached the wrong verdict. I can’t say that they reached the right verdict. Before I would as a thirteenth juror, before I would set the verdict aside, it would have had to have been a verdict that I couldn’t have lived with, and that was not the case in this case. I thought it was a case that could have gone either way, very much so. Most cases are not as close as the questions as in this case that appeared at the time of the trial, and I can’t say that I can’t agree with what the jury did. I think I have approved their verdict by order and the court still approves their verdict.”

With deference to the trial judge, it seems to us that when he said he could not say the verdict of the jury was right there was a clear disavowal of approval. The statement immediately following, that he could not say the verdict was wrong, cannot be taken as neutralizing the first statement. Taking the two statements and considering them together they would indicate that the judge had no opinion either way. These statements considered in context with the pro forma approval of the verdict with which he concluded his remarks seem to show that, notwithstanding his lack of conviction, the court was deferring to the verdict of the jury and disclaiming any opinion of his own. When he stated he could not say the verdict was right he failed to do precisely what he must do before rendering judgment on the verdict.

The above-copied remarks of the judge make it appear he disassociated himself from the deliberative process which is the peculiar and exclusive province of the jury of which the presiding judge is as much a member as jurors sitting in the jury box. Indeed, it must be said that, by reason of his training as a lawyer and his experience in weighing testimony, he is the most important member of the jury.

To say, as the trial judge did in this case, that before the trial judge, acting as the thirteenth juror, should set aside a verdict it would have to be a verdict that he could not live with would be to adopt a standard relieving the judge of the duty to take an unbiased and dispassionate view of the evidence, weigh it and determine whether the evidence preponderates in favor of the plaintiff or defendant or is equally balanced.

If the trial judge abdicates this important duty justice could often miscarry. On appeal the evidence cannot be weighed as in the trial court. As has been said so often, a verdict in a civil case approved by the trial judge cannot be overturned if there is any credible material evidence to support it. In view of the finality of his determination of the weight of the evidence as the thirteenth juror, it will not do to weaken the rule by implying approval by the trial judge from countervailing and irreconcilable remarks. To do so would be to strike at the very foundation of our judicial system as it pertains to jury trials.

Apropos here, it was said in Telephone & Telegraph Company v. Smithwiek, 112 Tenn. 463, 467, 79 S.W. 803, 804:

“The rule in civil cases is that, if the circuit judge is dissatisfied with the verdict of the jury, it is his duty to set it aside and grant a new trial, and that upon its being made to appear to this court, from statements made by the circuit judge in passing upon the Motion for New Trial, that he was really not satisfied with the verdict, it becomes the duty of this court, when it has acquired jurisdiction of the cause, to do what the circuit judge should have done; that is, grant a new trial on the ground of the dissatisfaction of that judicial officer with the verdict.”

The court went on to say:

“So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence; and, if he is dissatisfied with the verdict of the jury, he should set it aside. ... In deciding the matter the circuit judge is not bound to give any reasons, any more than the jury is bound to do so. If he does give reasons for his action, this court looks to them only for the purpose of determining whether he passed upon the issues, and was satisfied or dissatisfied with the verdict thereon.” (Emphasis ours.)

In Curran v. State, 157 Tenn. 7, 12, 4 S.W.2d 957, 958, the Supreme Court said:

“In civil cases at law it has been repeatedly held that the appellate courts will not review the sufficiency of the evidence to sustain a verdict, unless the verdict has received the approval of the trial judge, and in Turner v. Turner, 85 Tenn. 387, 3 S.W. 121, this court said that the rule that a verdict will not be disturbed on appeal when supported by any material evidence ‘is based mainly upon the consideration that the Circuit Judge has approved the verdict because satisfied with it, and not because he has approved it, although dissatisfied with it.’ ” (Emphasis ours.)

In Tennessee Coal & Railroad Company v. Roddy, 85 Tenn. 400, 403, 5 S.W. 286, 288, the Court said:

“The Court attaches great weight to the fact that the Circuit Judge, having seen and heard the witnesses testify, and having submitted the case to a jury known to himself, has stamped the verdict with his approval by refusing to grant a new trial. Much of the importance and weight attached to jury trials proceeds from the presumption that an intelligent and learned Circuit Judge, accustomed to weighing evidence, has scrutinized the proof, looked into the faces of the witnesses, and indorsed the action of the jury. The integrity and value of jury trial will largely disappear if Circuit Judges shall endeavor to avoid the duty imposed upon them by law in this regard.”

As in accord, see Railroad v. Neely, 102 Tenn. 700, 52 S.W. 167; State ex rel. v. Kenner, 172 Tenn. 34, 109 S.W.2d 95; Mize v. Skeen, 63 Tenn.App. 37, 468 S.W.2d 733. Other cases to the same effect could be cited.

For the reasons indicated the judgment is reversed and the cause remanded for a new trial. Accrued costs of both courts are taxed to the appellee.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


author: PARROTT, Presiding Judge (E.S.).

text:
    Michael Robert Eric DEAN, a minor by next friend and father, Billy Junior Dean, and Billy Junior Dean, Appellees, v. BAYS MOUNTAIN PARK ASSOCIATION and City of Kingsport, Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 1, 1977.
    Certiorari Denied by Supreme Court May 31, 1977.

      W. T. Wray, William E. Weber, and Ward Huddleston, Kingsport, for appellants.
    Daniel B. Minor, Kingsport, for appellees.
   OPINION

PARROTT, Presiding Judge (E.S.).

The defendants, Bays Mountain Park Association and the City of Kingsport, have appealed from a judgment entered in accord with a jury verdict in favor of the plaintiff, Michael Dean, a minor by next friend and father, Billy Junior Dean, in the amount of $10,000.00 and $1,500.00 for his father for injuries resulting when the minor plaintiff rode his bicycle into a log-chain blocking an access road to the bicycle trails maintained in the park. The plaintiffs alleged below and maintain on appeal the chain constitutes a nuisance for which the City of Kingsport is liable as an exception to the Tennessee Governmental Tort Liability Act. The defendants argue on appeal the condition of the chain constitutes negligence in its maintenance and does not establish the inherent danger required for a nuisance action.

The defendants’ single assignment of error challenges the trial judge’s refusal to direct a verdict in favor of the defendants at the close of plaintiffs’ proof and again at the close of all the proof. After a careful reading of the evidence and a review of the authority in this state, we find the trial judge should have directed a verdict for the defendant at the conclusion of all the proof.

On December 29, 1974 the plaintiff, Michael Dean, who was then eight years old, was visiting Bays Mountain Park with his father and other family members. Michael Dean and his nine year old uncle were riding their bicycles in the park while other family members were enjoying the park’s facilities. At approximately four o’clock in the afternoon, Michael Dean attempted to ascend a steep gravel road blocked by a chain stretched across the entrance to prevent unauthorized vehicles from entering. The chain was attached to posts located on both sides of the road. The record reveals that the posts and chain were painted “international orange”; however, the chain was not as visible as the connecting posts. The evidence establishes the chain was painted every six months, but the testimony does not reveal the last time the chain was painted prior to the accident.

The chain struck the plaintiff in the mouth causing a gash in his tongue, cuts on his lips, under his eye and nose, and the loss of and damage to several teeth. Some two weeks after the accident a one-quarter to one-half inch portion of the tip of his tongue fell off resulting in a slight speech impediment. According to the plaintiff’s testimony, he is experiencing no present discomfort from his injuries although he was unable to eat for a period of two to three weeks immediately following the accident due to the swollen condition of his tongue. The stipulated medical expenses amount to $952.00.

The primary question before this court is simply whether or not the maintenance of a chain across an access road in the park constitutes a nuisance for which the City is liable for resulting injuries. “As would be expected where negligence and nuisance are often entwined ‘courts recognizing municipal liability for nuisances but not for negligence in “governmental” areas have had difficulty in determining when municipal conduct was beyond negligence and amounted to nuisance. It is said at times that there must be a degree of danger likely to result in damage inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use. . If an act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held to be a nuisance.’ ” (Emphasis added.) Sewell v. City of Knoxville, 60 Tenn.App. 86, 90, 444 S.W.2d 177, 179 (1969), citing 2 Antieau, Municipal Corporation Law, Sec. 11.03, p. 15.

The cases in Tennessee considering municipal liability for nuisance establish the following requirements: an inherently dangerous condition and affirmative action on the part of the municipality. Both elements must be established before a nuisance can be found and “the distinction must be preserved ‘between negligence, an omission of duty, and a nuisance, or active wrong.’ ” Powell v. City of Nashville, 167 Tenn. 334, 69 S.W.2d 894 (1933). An examination of factual elements in Tennessee cases holding the municipality liable for maintaining a nuisance (Johnson v. Tennessean Newspaper, Inc., 192 Tenn. 287, 241 S.W.2d 399 [1950]), and cases finding that no nuisance was created (Sewell v. City of Knoxville, supra) illustratively define the elements of nuisance essential for recovery against a municipality.

In Johnson v. Tennessean Newspaper, Inc., supra, the city constructed water outlets in its park consisting of holes covered by concrete blocks. The park officials knew the concrete blocks were frequently removed by people using the park and since the area was sown with grass which concealed the holes, an extremely dangerous condition was allowed to exist for many years. When the plaintiff, who was attending a concert in the park, injured herself by stepping into an uncovered hole, she was allowed to recover under the theory of nuisance.

On the other hand, in Sewell v. City of Knoxville, supra, this court held that the City’s removal of seats from cinder block supports of bleachers in the city park leaving one block in a loosened condition which caused the plaintiff to fall, did not constitute a nuisance. This court said that “the evidence shows merely that defendant’s employees were guilty of negligence in failing to find and/or repair the concrete block which ‘shook’ under the plaintiff as he started to climb down from his perch on the foundation — negligence, for which the City of Knoxville cannot be held liable under the law as it now exists in this State.”

The evidence shows Michael Dean was injured when he descended a paved vehicular road in the park and attempted to ascend the gravel access road after failing to observe the chain blocking his entrance. The fifteen foot chain, which was located two and a half feet off the ground, was painted every six months. The evidence does not reveal the date of the last repainting, but there is no evidence to refute the testimony of the park manager regarding its biannual maintenance. The testimony reveals the chain was rusty and showing signs of wear which would be expected since park employees remove the chain and drive over it whenever they travel on the access road. The testimony further establishes that the chain and posts were painted “international orange” because of that col- or’s high visibility in a natural setting. The chain was located in an open area with nothing to obscure it from view. Similar chains were used in other areas of the park to direct traffic flow with the addition of a sign suspending from the center of the chain in wooded areas.

When the evidence in this case is read in conjunction with prior Tennessee cases, we find ourselves unable to say this chain constituted a nuisance. It is the condition itself that must be “fraught with danger” (City of Nashville v. Mason, 137 Tenn. 169, 192 S.W. 915 [1916]) and “while a lawful thing or act may be a nuisance by reason of its negligent use or operation ., nuisance is a condition, and not an act or failure to act of the person responsible for the condition; it does not necessarily depend on the degree of care used, but rather on the danger, indecency, or offensiveness existing or resulting even with the best of care.” 66 C.J.S. Nuisance § 11, p. 752 cited with approval in Sewell v. City of Knoxville, supra, 60 Tenn.App. at p. 89, 444 S.W.2d 177.

The condition of the chain at the time of the accident resulted from the park employees’ failure to maintain the chain’s bright orange color to increase its visibility. However, the evidence does not support a finding that such a chain necessarily located at that area to prevent unauthorized vehicles from using the gravel access road constitutes a nuisance. There is no evidence that the chain is inherently dangerous to those properly using the park facilities. The testimony of the park manager establishes that individuals bicycling in that park area were to walk their bicycles up the gravel road to the bicycle trails. To ride up the access road from the sloped paved roadway would indeed be dangerous because of the sudden change to a gravel surface at the entrance to the access road.

Without evidence in the record to establish an inherently dangerous condition, a nuisance cannot be found to exist. We find the trial judge erred in failing to direct a verdict in favor of the defendants at the close of all the proof.

Let the judgment entered be vacated and the cause dismissed with costs taxed to the plaintiffs.

SANDERS and GODDARD, JJ., concur.


author: McGEE, Justice.

text:
    Ex parte J. J. PRUITT, Harris County Fire Marshal, Relator.
    No. B-6591.
    Supreme Court of Texas.
    May 25, 1977.
    Joe Resweber, County Atty., Anthony D. Sheppard and William S. Dubois, Asst. County Attys., Houston, for relator.
    David A. Gibson, Tom F. Coleman, Jr., Houston, for respondent.
   McGEE, Justice.

This is an original habeas corpus proceeding brought by J. J. Pruitt, Fire Marshal of Harris County, Texas. Pruitt was ordered confined by the district court of Harris County because he failed to produce records of his investigation of a fire and refused to answer questions when ordered by the court. Pruitt filed this writ of habeas corpus asserting that the district court’s order of commitment was invalid because the court had no authority to order the production of the investigatory records of the fire. The question presented in this case is what materials are to be made available for public inspection by a county fire marshall pursuant to Texas Revised Civil Statutes article 1606c and the Texas Open Records Act, article 6252-17a.

This action arises from a fire which was investigated by Pruitt and his staff. The structure which was destroyed by the fire was insured by Aetna Casualty and Surety Company. Claims were presented to Aetna by the owners of the house and the owner of a security interest in the house. Aetna refused to pay the claims, alleging that the fire was intentionally set by the owners, thus precluding recovery due to an exception in the policy. The owners sought to depose Pruitt and subpoena all of his files relating to this particular fire in order to show that either the fire was not a result of arson or that they were not responsible. Pruitt produced a Harris County Alarm and Fire Record of the fire in question. The record contained general information such as a description of the house, its location, the name of the owner, when the alarm was turned in, when the fire was put out and who investigated the fire. The record also contained the following information concerning the cause and location of the fire:

Pruitt has refused to produce any of his investigatory files or answer questions related to his investigation, stating that such disclosure would interfere with an active arson investigation which is still in progress. There is nothing in the record that indicates the investigation by Pruitt is not actively proceeding. Pruitt was held in contempt and ordered confined when he refused to produce all of his records and answer questions concerning his investigation of the fire. Pruitt asserts that the district court had no authority to order the production of his active investigatory files; thus the orders of production and confinement are illegal.

Pruitt claims that the active investigatory files are not discoverable under article 1606c and asserts an executive privilege to preclude discovery of materials which will interfere with his duties as county fire marshal. Article 1606c states in pertinent part:

“County Fire Marshal
“Art. 1606. Counties with over 350,000 inhabitants.
“Investigation of fires
“Sec. 2. It shall be the duty of the said County Fire Marshal to investigate the cause, origin and circumstances of every fire occurring within the county, outside of any incorporated city, town or village, by which property has been destroyed or damaged, and he shall especially make investigation as to whether such fire was the result of carelessness or design. Such investigation shall begin within twenty-four hours, not including Sunday, after the County Fire Marshal receives notice or information of any such fire.
“Record of fires
“Sec. 3. The County Fire Marshal shall keep or cause to be kept in his office a record of all fires occurring within the county, outside of any incorporated city, town or village, together with all facts, statistics and circumstances, including the origin of the fire and the estimated amount of the loss, which may be determined by his investigation. Such record shall be kept in a legible and permanent form and be so preserved that the same may be at all times accessible and open for inspection.
“Witnesses and evidence; filing of criminal charges; contempt.
“Sec. 4. When in his opinion further investigation is necessary, the County Fire Marshal shall have the power to subpoena witnesses to appear before him and testify as to their knowledge of facts and circumstances surrounding the fire or attempt at setting of the fire; he shall be empowered to administer oaths and affirmations to any person appearing as a witness before him; he shall take and preserve written statements, affidavits and depositions as he shall deem fit; he shall file in courts of competent jurisdiction any charges of arson, attempt to commit arson, or any other crime or conspiracy to defraud, against any and all persons whom he shall deem guilty; he shall require the production before him of any book, paper or document deemed pertinent to such investigation and shall file misdemeanor charges in courts of competent jurisdiction against any witness who refuses to be sworn, who refuses to appear and testify, or who fails and refuses to produce before him any book, paper or document touching on any matter under examination when called upon by the County Fire Marshal to do so. Any person found guilty of such conduct of contempt of the procedings [sic] held by the County Fire Marshal shall upon conviction be fined not more than Twenty-five ($25.00) Dollars and costs in any court of competent jurisdiction.
“Privacy of examination; service of process.
“Sec. 5. The investigations and examinations may be conducted by said County Fire Marshal in private; all persons may be excluded from being present except the persons under examination; and the witnesses may be kept separate and apart from each other and not allowed to communicate with each other until they shall have been examined. All process shall be served by any Constable or Sheriff and the same shall be signed by the County Fire Marshal in his official capacity.
“Civil rights and actions.
“Sec. 9. No action taken by the County Fire Marshal shall affect the rights, of a policy-holder or any company in respect to a loss by reason of any fire so investigated; nor shall the result of any such investigation be given in evidence upon the trial of any civil action upon such policy; nor shall any statement made by any insurance company, its officers, agents or adjusters, nor by any policyholder or anyone representing him, made with reference to the origin, cause or supposed origin or cause of the fire to the Fire Marshal or to anyone acting for him, or under his direction, be admitted in evidence or be made the basis for any civil action for damages.”

We hold that article 1606c precludes disclosure of the materials sought and order that Pruitt be discharged. This holding is dispositive of the matter presented and we do not reach Pruitt’s assertion of an executive privilege.

Section three provides that basic factual information about fires be recorded and kept open for public inspection. The facts, statistics, and circumstances referred to in section three constitute the information contained in the County Alarm and Fire Record. There is nothing in section three to suggest that a fire marshal’s active arson files are to be kept for public inspection.

Section four states that if the fire marshal thinks further investigation is necessary to determine whether arson is involved, he may conduct a full and independent arson investigation. The fire marshal is empowered to subpoena witnesses, take and preserve written statements, collect papers or documents pertinent to the investigation, and file charges of arson against parties incriminated by the investigation.

Section five provides that the investigations and examinations of the fire marshal may be kept private. The investigations which may be kept private by section five are those independent investigations of the fire marshal provided for in section four. A full investigation by the fire marshal would include the collection of evidence, taking statements of witnesses and informants and performing tests to determine the exact cause of the fire and who was responsible for setting the fire. The examinations which may be kept private by section five are the examinations of witnesses of informants provided for in section four.

Section nine specifically prohibits the result of any fire marshal’s investigation from being admitted into evidence in a civil trial. Section nine further provides that no action of the county fire marshal shall affect the rights of a policyholder or insurance company regarding the fire.

Statutes should be read as a whole and construed to give meaning and purpose to every part. Black v. American Bankers Ins. Co., 478 S.W.2d 434 (Tex.1972); Perkins v. State, 367 S.W.2d 140 (Tex.1963). It is clear from reading the above sections of article 1606c that county fire marshals are not required to produce or testify about all of the materials contained in their files. Section three provides that general information about fires be made public. Sections four and five, however, provide that the fire marshal may investigate fires and these investigations may be kept private. There would be no reason to provide for private investigations and examinations in section five if the records of these investigations and examinations could be discovered under section three.

The discovery of active arson investigation files under section three would also violate the provision of section nine, that no action of the fire marshal shall affect the rights of a policyholder or insurance company regarding a fire investigated by the fire marshal. Discovery of active arson files could indeed affect the rights of either the insurance company or the insured by implicating certain individuals in committing arson, in providing parties with physical evidence which could be used at trial, in disclosing witnesses who could be called to testify or by coercing a party to settle a dispute. The legislative intent disclosed by reading section nine with sections three, four and five, indicates to us that the active investigatory files of the fire marshal are not to be used for the benefit of either the insurance company or the insured but were to be kept private.

We hold that in active arson files the names and statements of witnesses, suspects, and informants, including undercover officers, must be kept private. The opinions and conclusions of the fire marshal’s investigators regarding witnesses, suspects, statements made by persons questioned, and the investigators’ opinion as to the motive for an intentionally set fire are to remain undisclosed. Tests performed by the fire investigators to determine how a fire was started, tests used to determine the specific type of materials used in starting a fire, or tests made to determine who was responsible for starting a fire should also remain undisclosed. The type of information that the fire marshal is required to make available for public inspection is that material contained in the County Alarm and Fire Record which has already been produced.

The owners have urged the release of information from the fire marshal to assist them in recovering claims from Aetna. The owners are seeking enough information to contest Aetna’s assertion of the arson exclusion by showing that they are not responsible for purposely starting the fire. This argument presents a strong public policy reason for allowing disclosure, but preventing interference with the fire marshal’s duties of crime detection and law enforcement is a public policy consideration of equal importance.

Similar policy considerations were discussed when determinations were made concerning whether investigatory materials contained in police files were to be made public under article 6252-17a, the Texas Open Records Act. Houston Chronicie Publishing Co. v. City of Houston, 531 S.W.2d 177 (Tex.Civ.App.—Houston [14th Dist.] 1975), writ ref’d n.r.e. per curiam, 536 S.W.2d 559 (Tex.1976); see, Tex. Att’y Gen. Open Record Decision No. H-127 (1976). Section 3(a)(8) of the Act provides that “records of law enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law enforcement agencies which are maintained for internal use in matters relating to law enforcement” are excluded from public access. In the Houston Chronicle case the court of civil appeals held that the public has the right of access to the basic information concerning a crime, such as the offense committed, the location of the crime, the identification of the complainant, the premises involved, the time of the occurrence, the property involved, vehicles involved, a detailed description of the offense in question and the names of investigating officers. Access was denied to materials containing tests made by the police department, the names of witnesses and informants, observations and opinions of the arresting officers, and the personal record and arrest history of the arrested person. This court refused the application for writ of error, no reversible error, agreeing with the court of civil appeals that neither the Texas Open Records Act nor the United States or Texas Constitutions required disclosure of the complete records. We reserved the question of whether the press and public have a right to the information which the court of civil appeals held to be public because the City of Houston failed to file an application for writ of error. 536 S.W.2d at 561. This court recognized in Houston Chronicle that while strong considerations exist for allowing access to investigatory materials, the better policy reason is to deny access to the materials if it will unduly interfere with law enforcement and crime prevention.

We conclude that the legislature in enacting article 1606c intended to allow public access to the material contained in the County Alarm and Fire Record but did not intend to allow access to active investigatory records of the county fire marshal. We also think the overriding public policy consideration is to preclude interference with the county fire marshal in the performance of his law enforcement duties.

The district court was without authority to order discovery of all of Pruitt’s records pertainingxto the fire in question. Pruitt was justified in his refusal to produce his investigatory files and in refusing to testify to their contents. The order of commitment based on Pruitt’s failure to produce the records is invalid and we order Pruitt discharged.

YARBROUGH, J., notes his dissent.

      . All references are to Texas Revised Civil Statutes Annotated.


author: DOUGLAS, Judge.

text:
    Richard RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 53201.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Rehearing Denied May 25, 1977.

      Emmett Colvin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Sue Lagarde and Richard G. Worthy, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission we affirmed in a per curiam opinion the order revoking appellant’s probation, overruling his sole contention that he was denied effective assistance of counsel when he was originally convicted and placed on probation.

On rehearing he contends that the evidence was insufficient at the revocation hearing to show that he violated the condition of probation to commit no offense against the laws of this State. He also contends that because he was found not guilty under an indictment his probation could not be revoked upon the same transaction. We overrule both contentions.

Only the facts at the revocation hearing are before us. Russell was indicted by a Dallas County grand jury for the offense of theft during its July, 1975 term in Cause No. F75-12165-MP and subsequently a motion to revoke probation was filed on October 30, 1975. By agreement, the motion to revoke probation was heard simultaneously with Cause No. F75-12165-MP because both were based upon the same transaction. Trial was before the court upon a plea of not guilty in Cause No. F75-12165-MP.

On September 20, 1975, Otis Dunlap purchased certain real property located on Lake Tawokani in Van Zandt County delivering to appellant his personal check in the amount of $250.00 representing one-half of the required down payment upon signing of a contract of sale. Two days following the signing of the contract Dunlap made a check of the tax rolls of Van Zandt County and discovered that appellant was not the owner of the property in question and a complaint was filed when he could not locate Russell.

Dunlap testified that on September 20, 1975, in response to an ad in the Dallas Morning News, he made an appointment to see the lots advertised for sale by appellant on Lake Tawokani. Dunlap, his wife and daughter met appellant at Terra-Mar Estates on Lake Tawokani on the same day. Initially Russell showed the Dunlaps lots priced from $4,000.00 to $6,000.00. Dunlap asked “Is this the land that was advertised?” and Russell said, “No.” Dunlap’s wife then insisted that he show them the lots advertised for $1500.00. Russell took them to another section and they were shown three lots priced at $6,000.00, $5,000.00 and $2,000.00, respectively. Dunlap stated that he and his wife decided on the $2,000.00 lot and prior to entering into the contract of sale asked appellant if he owned the property he was attempting to sell. “He said he owned it.” However, Russell made no mention of any liens, security interest, adverse claims or any other legal impediment to his enjoyment of the property. Russell requested $500.00 as down payment and the balance in installments bearing interest at the rate of ten (10%) percent per annum. Dunlap refused to pay the full $500.00 but agreed to pay $250.00 and another $250.00 within ten days. He further testified that if in fact Russell had made disclosure to him that he did not own the land he would not have entered into the contract nor given him the $250.00. On Monday, September 22, Dunlap’s bank called him to verify the amount of the check because an apparent inconsistency existed between the numerical figure and the written amount. He then tried to call Russell at the number he had called on Saturday, 270-8102, and found that it had been disconnected. He then tried to call the “. . . Richard Russell listed of Sul-phur Springs, Texas, also of Greenville, also of Sulphur Springs, Oklahoma,” to no avail. He then went to Canton to check the Van Zandt County tax rolls and discovered that the property was owned by Margaret Fun-derburk Estates. Dunlap did not pay the second $250.00.

George Funderburk testified that the property in question belonged to him and his sister. He stated that the property had been listed with Kennedy Realtors of Long-view. Funderburk further testified that a contract of sale on the acreage of Terra-Mar Estates had been entered into between him and Richard Russell on May 28, 1975, and that at the time of the signing of the contract $1,000.00 was placed in escrow by Russell. Part of the agreement was that Russell would find a surveyor and Funder-burk would pay for the cost of surveying the outside perimeter. Gwen Huddleston surveyed the tract, both the outside perimeter and internal tracts of approximate acre. The cost of the internal survey was to be borne by Russell. Funderburk paid Hud-dleston’s entire bill of $940.00 just a few days before the trial. He stated that the closing on the Russell contract never did take place.

Next, George E. Kennedy, Jr., of Kennedy Real Estate, testified that Russell had entered into a contract with Funderburk for the purchase of the approximately 140-150 acres on Lake Tawokani and that Russell had deposited with him $1,000.00 of the $20,000.00 down payment, the balance due within ninety days of closing. He said that a closing date was never set because they had not received the remaining $19,000.00, even though the contract provided for payment “. . . on or before 90 days from the date of closing.” However, the survey and title opinion also had to be completed before a closing date could be set. He also recalled discussing the survey with Russell and it was agreed that Russell could select a surveyor to lay out his plats and also do the outside perimeter with Funderburk paying for the cost of the outside perimeter. On July 1,1975, he stated that he and D. W. Campbell of his office had had a discussion with Russell concerning the requirement for him to disclose liens, adverse claims, and interest held by other parties. They had had several calls of inquiry from different people and as a result thereof had informed Russell that he should disclose to people that he had a contract and did not actually own the land, “. . . but would receive the land as soon as he paid X number of dollars for a release.” While this had not been past policy it was a requirement learned from attendance at a seminar conducted by Housing and Urban Development.

Campbell testified that following inquiry by a man named Gil Buck of Dallas he and Kennedy went out to Terra-Mar Estates and told Russell that . .he should give a full disclosure to all of these people he was dealing with on what he was doing, and he informed us he had a way of doing business and he would do business his way, and we could do business our way.” Russell was informed that he could not sell the lots because they had not been surveyed at that point. Following that visit, Russell called their office and asked that if inquiries were made that they should say that he owned the property and Russell was informed that they would not do so because he did not own the property.

The defense did not present any witnesses and the court found appellant not guilty in Cause No. F75-12165-MP, apparently for the failure of the State to prove venue. However, the court found the evidence sufficient to show that the offense of theft had been committed in Van Zandt County and entered an order revoking his probation. The court noted that appellant apparently through his family had made restitution of over five thousand dollars before reducing punishment from five to three years.

It is true that appellant had entered into a contract for the purchase of Terra-Mar Estates. The situation in the instant case differs from that found in Bearden v. State, 487 S.W.2d 739 (Tex.Cr.App.1972), because appellant was not required to deliver a deed to Dunlap at the time of the signing of the contract of sale between them. His contract with Dunlap required him to deliver the deed clear of encumbrances when Dunlap had paid in full the purchase price of the property. There is no showing in this record that Russell would not have been able to perform, thereby distinguishing his situation from Bearden where Bearden had a duty to deliver a deed and was unable to do so. Further, Russell could properly call himself an owner. “The meaning of the term ‘owner’ is varied and depends in a great measure on the manner of its use. In common speech it is most often used to designate the person in whom the legal or equitable title rests, as distinguished from a mere occupant or tenant. When used alone it imports an absolute owner or one who has complete dominion of the property owned, as the owner in fee of real property. It is often used to characterize the possessor of an interest less than that of absolute ownership.” 63 Am.Jur.2d, Property, Section 32. It appears that Russell did have an equitable interest in the property.

Appellant’s act of deception did not lie in his claiming to be the owner, but in his failure to make disclosure of existing liens, security interest, and other adverse claims which might serve as a detriment to a buyer’s enjoyment of the property. V.T.C.A., Penal Code, Section 31.03, provides in appropriate part:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; . . .
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent;

V.T.C.A., Penal Code, Section 31.01, provides that consent is not effective if induced by deception. In that same section, “deception” is defined in Section 31.-01(2)(D), as follows:

“(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or . .”

The gravamen of appellant’s offense is his failure to disclose existing liens and security interest in the property he was attempting to sell. The explanatory comment following Section 31.03 in 2 Branch’s 3d Ed. reads as follows:

“Consent is not effective if induced by deception. ‘Deception’ is defined in Section 31.03[1](2). As in present law, the victim’s consent must result from his reliance on the deception, i. e., he would not have consented had he known the truth. It is not theft if the victim knows the truth and knows the actor is lying but nonetheless agrees to the transaction. Applying the culpable mental states to this concept, the deception must be intentional and for the purpose of inducing consent.
“Conduct which falls within the definition of ‘deception’ requires, with one exception, that the actor take some affirmative action that conveys a materially false impression that is ‘likely to affect the judgment of another.’ The one exception is in subsection (b) of Section 31.01(2) which requires the disclosure of liens, security interest, adverse claims, and other legal impediments to enjoyment before transferring or encumbering property, whether or not valid and whether nor not same is a matter of official record. To this extent this is a change from present law.”

Appellant’s contention is overruled.

He also contends that the trial court’s judgment of not guilty in Cause No. F75-12165-MP was a bar to the entry of a subsequent order revoking probation on the basis of the same alleged offense. His contention is without merit.

This is is a revocation proceeding and as such is not a criminal prosecution. Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974). The proceeding itself takes the form of a trial, with the presence of witnesses, and the introduction of evidence. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Ex parte Shivers, 501 S.W.2d 898 (Tex.Cr.App.1973). The principal difference in a criminal prosecution and a revocation hearing is the degree of proof required. Acquittal in a criminal proceeding merely determines that guilt was not proved beyond a reasonable doubt while in a revocation proceeding proof need not be beyond a reasonable doubt but only by a preponderance of the evidence. Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972). See Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). There are also other differences such as the uncorroborated testimony of an accomplice will not support a conviction standing alone in a criminal prosecution while a revocation of probation may be based on such testimony. Moreno v. State, 476 S.W.2d 684 (Tex.Cr.App.1972).

The federal constitution as well as the Texas Constitution prohibit placing an accused twice “in jeopardy” for the same offense. Thus, in criminal cases in which an individual has once been hailed before a jury or a judge and found innocent, res judicata, including collateral estoppel, rests upon the double jeopardy clause of the Fifth Amendment and prevents a second prosecution for the same conduct or subject matter. Obviously that is not the situation in a revocation proceeding. It is not a “prosecution.” Appellant’s conduct is being considered in view of the conditions imposed upon him under the terms of his probation. A finding that he has not abid-ed by those conditions results only in his commencement of an imprisonment term for an offense for which he was previously convicted. Revocation of probation does not place a defendant in jeopardy twice for the same crime. Valdez v. State, 508 S.W.2d 842 (Tex.Cr.App.1973). Nor does there need to be a trial and a valid conviction for the offense which serves as the basis for the revocation. Vance v. State, 485 S.W.2d 580 (Tex.Cr.App.1972).

The judgment of not guilty in Cause No. F75-12165-MP was resultant from the trial court’s finding that the State had not proved the indictment in that cause beyond a reasonable doubt. The record reveals that in fact the judgment was entered because the State failed to prove proper venue. The record reflects that the motion to revoke was amended to reflect that the alleged offense had occurred in Van Zandt County instead of Dallas County and no objection was made. An order revoking probation was entered.

We hold that appellant’s acquittal in Cause No. F75-12165-MP did not act as a bar to using the same offense as a basis for revoking probation. Appellant has not been twice placed in jeopardy for the same offense.

No abuse of discretion having been shown, the motion for rehearing is overruled and the judgment is affirmed.


author: ROBERTS, Judge.

text:
    Donald MORTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52712.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    Rehearing Denied June 22, 1977.
    Jim Martin, Emmett Colvin — on appeal only — Dallas, for appellant.

      James 0. Mullin, County Atty. and Fred M. Barker, Asst. County Atty., Weather-ford, Jim D. Yollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for injury to a child. The court assessed punishment at three years’ confinement in the Texas Department of Corrections.

The record reflects that on May 3, 1975, the appellant went to the trailer house where he lived with a woman and her three children. As he approached the door, one of the children, Mark, was in the kitchen alone cooking or toasting some bread. Mark was six years old. Appellant knocked on the door and, when he finally entered, the kitchen was full of smoke and Mark had thrown the bread out the back door. In order to punish Mark for cooking in the kitchen alone, appellant picked up the hot skillet that Mark was using and applied it to the child’s stomach, causing a severe burn. Photographs of this injury were admitted into evidence and are in the record.

Appellant’s version of the incident is contained in his voluntary statement which was admitted into evidence:

“On May 3, 1975, I was working in the clubhouse at Horseshoe Bend. About 4 p. m. on that date I went to the trailer house to change clothes. The door was locked. I knocked on the door and Mark let me in. I did call the babysitter, but no response. As I went through the kitchen I picked up the skillet. I threatened Mark with it as if I was going to burn him. Mark backed up to the cabinet and then leaned forward. This is when I burned him. I was attempting to catch him.”

Appellant further testified that, while he threatened Mark with the pan he didn’t have any intention of burning him, and that the injury occurred as the result of an accident when Mark fell forward as appellant was approaching him with the hot skillet.

Mark testified that appellant . sticked the skillet to my stomach with the handle . . . because he don’t want me cooking bread.”

Two lay witnesses testified that the burn was bad and one thought it needed medical attention.

The only expert testimony on the seriousness of Mark’s injury came from Dr. John Merrick, the physician who treated him. He testified, in pertinent part, as follows:

DIRECT EXAMINATION

******
He has permanent scarring. <j
Is the word, disfigurement, a medical term that you use, or are you acquainted with that word? o*
I am acquainted with it, but I don’t believe it’s confined to medicine.
Would you describe whether he has any disfigurement or not? .©
Yes. I think it’s a disfigurement in that it’s a change from the normal. It’s a disfigurement because he has scarring.
In either medical or other terms, is this a serious thing that he has; a serious injury that he has? “[DEFENSE COUNSEL]: I’m going to object to the terminology. I object to him leading this doctor. “THE COURT: Sustained. O’
In some terms, could you describe whether this is small, medium, or large, frivolous, serious, or otherwise? O’
I think that the burn that he sustained has produced a permanent scar and I believe the scar is going to stay with him, but I don’t believe that it’s going to produce a serious problem to him throughout his life, except for its appearance.
Can you describe, in terms of the scar itself— Can you give some label to describe that, as to whether or not it’s within some category? O’
Well, I think that the scarring is not a heaped up scar that’s not devoting adequate circulation. I think it’s mainly a change from the normal in its appearance and it should not produce permanent problems from the standpoint of future changes.
“Q Is it what you might call a frivolous matter or how would you describe it?
“A I can’t describe it other than by the fact it was scarred.
“Q Is there a medical term that you would use to label it? Perhaps there is not.
“A I don’t know of any other than the fact of what I have stated.
* * * * * *

CROSS-EXAMINATION

******
“Q In other words, it’s not necessarily good to look at, but it’s not going to hurt this boy in any bodily function that he might have, is that right?
“A Except that it might be more susceptible to burning from the sun or something of that nature.
“Q Later on in life if he got sunburned or something like that.
“A That’s right.
******
“Q Now, let me ask you about serious bodily injury. Let me ask you if serious bodily injury means, bodily injury that creates a substantial risk of death or that causes death, or serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. If that is what serious bodily injury means, would you feel that this boy comes within that terminology?
“A You say, if that’s what it means.
“Q Uh-huh. I’m assuming that’s what it means.
“A Then, I would have to say no.”

Y.T.C.A., Penal Code, Sec. 22.04, entitled “Injury to a Child,” provides that:

“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that causes serious bodily injury, serious physical or mental deficiency or impairment, or deformity to a child who is 14 years of age or younger.
“(b) An offense under this section is a felony of the second degree.”

Omitting the formal parts, appellant was indicted as follows:

“. . . did then and there knowingly and intentionally engage in conduct that caused serious bodily injury to Mark Russell, a child less than 15 years of age;”

V.T.C.A., Penal Code, Sec. 1.07(34), states that:

“‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

The trial court gave this definition of serious bodily injury in its charge. It also charged the jury as follows:

“NOW, THEREFORE, if you believe from the evidence beyond a reasonable doubt, that the Defendant, Donald Mort-er, on or about the 3rd day of May, 1975, in the County of Parker, and State of Texas, as alleged in the Indictment, did then and there intentionally or knowingly engage in conduct that caused serious bodily injury, serious physical deficiency or impairment, or deformity to Mark Russell, a child younger than 15 years of age by then and there applying a hot skillet to his body, you will find the Defendant guilty of the offense of injury to a child, and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant of the offense of injury to a child and proceed to consider whether the Defendant is guilty of the lesser included offense of assault.”

This record presents fundamental error of which we must take cognizance and review in the interest of justice under the provisions of Article 40.09, Section 13, V.A. C.C.P. See, Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975).

While the indictment alleged that the appellant caused “serious bodily injury” to the complaining witness, the court, in applying the law to the facts, allowed the jury to convict if they found the appellant committed other conduct proscribed by Section 22.04, supra. That is, causing “serious physical deficiency or impairment” or “deformity.” Although these terms are not defined in Section 1.07, supra, we cannot presume from this absence of definition the redundancy of the statute. Contra, Practice Commentary to Section 22.04, supra.

“Every word of a statute is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and word be given effect if reasonably possible. (Citation). This rule is not altered by the fact that the Legislature has not defined a particular word or phrase, and in the absence of such a definition the words of the enactment will usually be given their ordinary meaning.” Ed-dins-Walcher Butane Company v. Calvert, 156 Tex. 587, 591, 298 S.W.2d 93, 96 (1957).

“[E]very word (of legislative acts) is presumed to have been intentionally used for the purpose of making clear the legislative intent.” Gulf, C.S.F. Ry. Co. v. Blum Independent School Dist., 143 S.W. 353, 356 (Tex.Civ.App.—Austin 1911, On Second Motion for Rehearing, writ ref’d.). The presumption is that, in enacting a statute, the legislature intends the entire statute to be effective. Lovell v. State, 525 S.W.2d 511, 515 (Tex.Cr.App.1975); accord, Perkins v. State, 367 S.W.2d 140, 146 (Tex.Sup.1963).

We can only conclude that in enacting Section 22.04, supra, the Legislature proscribed three types of conduct just as they made applicable four culpable mental states.

We now turn to the fundamental error which we recognize.

“It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (citation); the indictment alleged such conduct (citations); and the evidence at trial showed such conduct (citations).” (Emphasis added). Dowden v. State, 537 S.W.2d 5, 6 (Tex.Cr.App.1976).

In Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918), this Court recognized fundamental error and held that:

“Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.” Id., at 684.

In Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956), this Court held that fundamental error was present when the jury was authorized to convict the defendant upon findings which did not constitute the offense as charged.

In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940), this Court found fundamental error and held:

“The rule is universal and has been emphasized frequently by appellate courts, and in a great number of cases by the appellate courts of this state, that the charge must be limited to the allegations in the indictment. A jury would not be authorized to convict appellant of any other offense than that specifically charged, and the court should confine the consideration of the jury in the charge to the allegation contained in the indictment.” Id., at 178, quoting, Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834, 835 (1908).

Returning to Dowden, supra, we note that the defendant there complained that the court’s charge quoted the entirety of the statute, including portions thereof that were not pled. We stated that:

“This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. (Citations). We reiterate that admonition.” Dowden, supra, at 7.

The judgment of the trial court is reversed and the cause is remanded.

DOUGLAS, J., dissents to that part of the opinion holding fundamental error in the court’s charge.


author: DALLY, Commissioner.

text:
    Robert Emmett HOULIHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 54269.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    Rehearing Denied June 22, 1977.
    Dick DeGuerin, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Clyde P. DeWitt, III and Richard H. Cobb, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. The appellant waived a jury trial and entered a plea of guilty before the court to the offense of possession of marihuana. After finding the appellant guilty, the court assessed punishment of imprisonment for 5 years. The imposition of sentence was suspended and on October 13, 1972, the appellant was placed on probation, subject to certain conditions, among which was that he “commit no offense against the laws of this or any other state or the United States.”

On April 18, 1973, the State filed a motion to revoke probation alleging that the appellant had violated a condition of probation by committing the offense of possession of marihuana on or about April 15, 1973. On November 25,1975, after hearing the State’s motion to revoke probation, the court entered an order revoking probation and sentenced the appellant.

Appellant contends the court abused its discretion in revoking his probation because the marihuana admitted in evidence and which formed the basis for the revocation of probation was obtained as a result of an unlawful search and seizure. Appellant argues that the arrest and search were unlawful because the officers did not have probable cause to arrest him without a warrant and that, if the officers had probable cause, such knowledge was obtained as the result of illegal electronic surveillance.

The State asserts that the officers had probable cause to arrest and search the appellant and to search the van he was driving, that probable cause was not obtained as a result of an illegal electronic surveillance, and that in any event there was sufficient evidence to show that appellant possessed marihuana prior to the arrest and search.

Robert Parsons was an agent of the Federal Drug Enforcement Administration working in an undercover capacity in April of 1973. At that time Parsons was engaged in negotiations to purchase five hundred pounds of marihuana from the appellant. On April 13, 1973, Parsons met the appellant at an apartment in Houston. At that meeting the appellant told Parsons that he had the marihuana and that it was located out in the country. The appellant had a sample of the marihuana and showed it to Parsons. Parsons agreed that the marihuana was satisfactory and they made arrangements for the appellant to deliver the marihuana on the following day, April 14th.

On April 14,1973, Parsons met the appellant at a motel in Houston. Another undercover agent, Don Perry, accompanied Parsons to the motel and showed the appellant $45,000, the purchase price for the marihuana. Parsons obtained a white Dodge van for the appellant to use in transporting the marihuana. This van was owned by the Houston Police Department and was equipped with an electronic device that transmitted an electrical impulse (beeper). Another police car was equipped with a receiver for tracking the van. With the receiver the officers could determine the approximate direction and distance they were from the beeper. The appellant left the motel in the Dodge van to pick up the marihuana. The law enforcement officers involved in the surveillance of the appellant were in three vehicles. Federal agent Oakum and Officer Avilla were in one car. Officers Wells, Huerta, and Zavalla were in another car. Officers Blalock and Rose were in the third car. Officer Blalock’s car was the only car equipped with a receiver for tracking the location of the van which had the beeper attached.

When the appellant left the motel driving the van all of the officers followed him. As they were following the appellant out of town on Westheimer Road in Houston they lost visual contact with the van. Officer Blalock in the car with the tracking receiver also lost contact with the van. He stated that a thunderstorm was in progress and every time lightning would strike the electrical impulse from the lightning would register a false reading on the receiver. As a result of the weather Officer Blalock also lost electronic contact with the van.

After the officers all lost contact with the appellant, Officer Wells continued driving out Westheimer Road into the country. As they were driving along Westheimer Road, which was a farm-to-market road outside the city, they saw a white van backed into the door of a barn near a farmhouse. Officer Wells radioed the other officers that they had possibly found the appellant and set up surveillance of the barn and farmhouse where the van was parked. Although the evidence is uncontradicted that Wells first observed the van at the barn by visual observation only, the evidence was conflicting as to whether the electronic device was used to verify that the white van was the same one the appellant was driving. Wells’ car was not equipped with a tracking device and he testified that they did not use the beeper to verify that the van was the one in question. They did not observe anyone load or unload anything from the van and did not observe any activity around the van. When the van left the farm and entered the highway, Wells was able to verify that the van was the one the appellant was driving by reading the license plates with binoculars. He denied that Officer Blalock, by use of the electronic tracker, told them on the radio that the van was the one appellant was driving.

Officer Blalock, who was driving the car with the tracking device, said that when they heard over the radio that the appellant had possibly been located, they drove out Westheimer Road. As they approached the barn the tracking device indicated that the van was the same one appellant was driving. Blalock testified that he was sure he called Wells on the radio and verified that the van was the one in question. Officer Zavalla, who was in the car with Wells, testified that as Blalock’s car approached the farm, Blalock said the beeper was strong. When Blalock reached the location where Wells and Zavalla were, Zavalla said they pointed out to Blalock the location of the van. Zavalla testified that Blalock said that must be the van. “That’s our signal. It’s got to be the truck.”

After the appellant left the barn the officers in the three unmarked cars followed him back into Houston. They never lost visual contact with him again. According to plans discussed earlier in the day, if the negotiations for the purchase of the marihuana were successful, the officers would arrest the appellant before he returned to the motel in order to attempt to preserve the undercover identity of Parsons. After following the appellant into town, Agent Oakum attempted to stop the appellant. Oakum drove his car alongside the van and Officer Avilla held his badge out of the window and signaled for the appellant to stop. When the appellant would not stop the van, Officer Zavalla shot one of the van’s tires with a shotgun. The appellant was arrested and the van was searched. The officers found in the van what was proved to be 460 pounds of marihuana.

After hearing the evidence, the court overruled appellant’s motion to suppress and revoked appellant’s probation. The court found that electronic surveillance was used by the law enforcement officers, but that the electronic device did not in fact lead to the recovery of the contraband.

In support of his argument that the electronic tracking device rendered the arrest and search unlawful, appellant relies upon United States v. Holmes, 521 F.2d 859 (5th Cir. 1975), affirmed on rehearing by an equally divided court sitting en banc, 537 F.2d 227 (5th Cir. 1976). Holmes negotiated a sale of 300 pounds of marihuana to an undercover agent. While Holmes and the agent were negotiating the sale in a lounge another agent attached an electronic surveillance beeper, like the one in the case at bar, to Holmes’ van. The agents began a visual surveillance of Holmes’ van but lost track of it. An airplane equipped with a tracking receiver was used to search for the van. The pilot of the plane was never able to visually spot the van; however, by using the tracking receiver he was able to approximate its location in a wooded rural area of Florida. As a result of the electronic beeper law enforcement officers on the ground were able to locate the van, later stopping it and discovering 1200 pounds of marihuana in the van. The Fifth Circuit Court of Appeals affirmed the Federal District Court’s order suppressing the evidence. The Court held that the installation of the electronic tracking device on Holmes’ van was a search within the meaning of the Fourth Amendment of the United States Constitution. Relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court said that when a person parks his car on a public way he does not give up all expectation of privacy. The Court said:

“No rational basis occurs to us for distinguishing the violation of the expectation of privacy involved in the installation of a ‘beeper’ on a car, in order to trace its movements, from the placing of a tap on the outside of a telephone booth in order to overhear and record conversations, Katz, supra.

United States v. Holmes, supra, is the only case on a Federal appellate court level which has been cited and which we have found that holds the use of an electronic tracking device violates a person’s Fourth Amendment right against unreasonable searches and seizures. The Ninth Circuit holds that the use of an electronic location device to follow a vehicle moving about a public thoroughfare does not infringe upon a person’s reasonable expectation of privacy and does not constitute a search, provided no reasonable expectation of privacy is violated by the initial installation of the beeper. United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976); United States v. Hufford, 539 F.2d 32 (9th Cir. 1976). In Pret-zinger, the beeper was attached to an airplane pursuant to a federal magistrate’s order which was held to have been authorized by Rule 41 of the Federal Rules of Criminal Procedure. In Hufford, one beeper was inserted into a drum of chemicals while the drum was still in the possession of the manufacturer. The other beeper was attached to the battery of a pickup truck pursuant to a court order. It has also been held that inserting an electronic tracking device into contraband which has been legitimately discovered and constructively seized at the border does not violate the Fourth Amendment because a person has no reasonable expectation of privacy as to the contraband. United States v. Emery, 541 F.2d 887 (1st Cir. 1976).

We find the facts in the instant case more like those in another Fifth Circuit decision, United States v. Perez, 526 F.2d 859 (5th Cir. 1976). In Perez, undercover agents inserted an electronic tracking device into a television set they exchanged for heroin. The Court said:

“. . .a person who accepts an item of personal property in exchange for heroin has no reasonable expectation that it is cleansed of any device designed to uncover the tainted transaction or identify the parties. Surely, the tailing of a suspect by utilizing an electronic bug on moveable property constituting a direct part of the negotiated transaction seems no more objectionable than placing a ‘tail’ on his movements or the recording of the serial number of money given in exchange for illegal contraband or the marking of property passed in such an exchange so that it can later be identified. Additionally, unlike Holmes where the bug was put on the defendant’s vehicle then in the constructive possession of the defendant, the ‘bug’ here was installed while the TV was in the rightful possession of the government agents.”

See also United States v. Bishop, 530 F.2d 1156 (5th Cir. 1976), where the use of a beeper was upheld when it had been placed in specially marked “bait” money.

In the instant case the van in question was owned by the Houston Police Department and the electronic tracking device was placed on the van before appellant used it. A person who accepts the use of a vehicle to transport contraband should not have a reasonable expectation that it is cleansed of any device designed to identify its location. United States v. Perez, supra.

There is yet another theory on which this appeal may be affirmed. In a revocation of probation proceeding the trial judge is the sole judge of the facts. As the trier of the facts it is his duty to resolve any conflict in the testimony. McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976). The trial court found that the electronic tracking device did not lead to the recovery of the contraband. It was uncontradicted that the officers located the van at the barn by visual observation alone. Even if the van had not been equipped with the tracking device, the officers would have been able to verify that the van was the one the appellant was driving by waiting until it resumed travel on the public highway and observing it visually. Not all evidence which is the “fruit of the poisonous tree” requires application of the exclusionary rule. The test is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The trial court’s findings that the tracking device did not lead to the recovery of the contraband is supported by the evidence. No abuse of discretion is shown. See United States v. Worthington, 544 F.2d 1275 (5th Cir. 1977).

Appellant also contends the court abused its discretion in revoking his probation because the officers did not have probable cause to arrest and search the appellant or the van. Undercover agent Parsons was negotiating the purchase of the marihuana from the appellant. The appellant told Parsons that the marihuana was located in the country and that he would deliver it on April 14th. The appellant was to use the van to transport the marihuana. The appellant alleges that none of the officers testified that they knew the appellant would use the van for transporting the marihuana. This allegation is not supported by the record. The record clearly shows that the officers knew of Parsons’ negotiations and their surveillance of the appellant when he left the motel was to locate the. cache of marihuana. Officer Oakum testified that he knew that a purchase of marihuana was supposed to be made from the appellant. The officers had discussed their plans earlier in the day on April 14th and if the negotiations were successful they planned to arrest the appellant before he returned to the motel. When the officers observed the van backed into a barn in the country this confirmed the appellant’s statements to Parsons. In addition, the officers were not acting upon information received from an unnamed informer, but upon information received from their own undercover agent who had firsthand knowledge of the transaction. The officers had probable cause to arrest and search the appellant. No abuse of discretion is shown. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Vera v. State, 499 S.W.2d 168 (Tex.Cr.App.1973); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Kwant v. State, 472 S.W.2d 781 (Tex.Cr.App.1971).

We also agree with the State’s contention that the evidence is sufficient to show that appellant violated a condition of his probation by possessing marihuana prior to the arrest and search. On April 13,1973, Parsons met with the appellant at an apartment in Houston. Parsons testified concerning this meeting as follows:

“Q. And at that meeting what did this defendant say to you in regards to the purchase of five hundred pounds of marijuana?
“A. He said he had the marijuana for sure, that it was out in the country. We agreed to arrange for delivery the following day on the 14th of April. He stated that he did not want to do it that evening because it was too late. He had a sample of the product. I looked at it and agreed it was satisfactory and he made a telephone call at that time and stated that he would be agreeable to deliver the marijuana the following day.” (Emphasis added.)

The testimony clearly shows that the “sample” Parsons, the undercover narcotic agent, referred to was marihuana. The appellant did not object to this testimony, nor did he test the witness’ ability to recognize marihuana. This Court has held that an experienced officer may be qualified to testify that a green leafy plant substance is marihuana. Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466 (1959); Satery v. State, 455 S.W.2d 294 (Tex.Cr.App.1970); Jordan v. State, 486 S.W.2d 784 (Tex.Cr.App.1972); Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971). Cf. Curtis v. State, 548 S.W.2d 57 (Tex.Cr.App.1977).

The evidence is sufficient to show, by a preponderance of the evidence, that the appellant possessed marihuana and thus violated a condition of his probation. The trial court did not abuse its discretion in revoking probation.

The judgment is affirmed.

Opinion approved by the Court.