author: BAECUS, J.

text:
    BOONE v. TEXAS EMPLOYERS’ INS. ASS’N.
    No. 1299.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1932.
    F. M. Fitzpatrick and W. Y. Dunnam, both of Waco, for appellant. .
    Witt, Terrell & Witt, of Waco, for appellee.
   BAECUS, J.

Appellant, while working for the Korioth Plumbing & Heating Company, on August 11, 1931, received an injury. Said company was carrying workman’s compensation insurance with appellee. Appellant was carried to the Colgin Hospital in Waco, where he remained until about the 25th of September. During the time he was confined in the hospital, hé received weekly compensation and all of the doctor’s and hospital bills were paid by ap-pellee company. He filed his claim for compensation with the Industrial Accident Board. On October 12th, appellant and ap-pellee agreed upon a settlement for all claims appellant had by reason of said injury. Under the terms of said agreement, appellee was to pay appellant $225 in addition to the sums that had already been paid. This agreement was filed with the Industrial Accident Board and said board approved same, and in its order provided that the settlement would become final upon the actual payment by appellee of said amount to appellant. The money was actually paid to appellant on October 26, 1931. On November 5, 1931, appellant filed his application with the Industrial Accident Board to set aside said award. Said board, after hearing the facts, denied appellant’s request. Appellant appealed to the district court, where same was tried to a jury, and, after the evidence was introduced, the trial court instructed the jury to return a verdict for appellee.

The sole question involved is whether, under the most favorable view of the testimony, appellant was entitled to have said award set aside. His contention is that the settlement was made by accident, mistake, or fraud and that by reason thereof, same should be set aside. No question is raised about appellant having been injured or that he was confined in the hospital for some seven or eight weeks. Appellant’s main contention is that he was induced to make the settlement because of a fraudulent representation made to him by Dr. Oolgin, the physician employed by appellee, to the effect that he, appellant, should have an operation and have an infected gland removed, and that, if he would undergo the operation, he would be entirely well in from two to four weeks. He testified that Dr. Oolgin advised him, appellant, to go to the agent of appellee and make some kind of a settlement of his claim and get $150, being the necessary amount to pay for said operation; that the doctor told him it was absolutely necessary for him to have the operation and that, if he would have same, he would, within two weeks thereafter, be entirely well; that because of Dr. Col-gin’s statement, he went to the agent of the appellee and told appellee’s agent that Dr. Colgin had said it was necessary for him to have this operation and that it would cost the $150; that after seme discussion as to the amount, he and appellee’s agent agreed to settle for $225 in addition to the money already paid. Appellant further testified that the agent of appellee told him that, if they did not agree on a settlement and the matter got into court, it would remain there for several years and that the- attorneys for appellant would get a large portion of any sum he might finally recover.

After appellant made the settlement, he did not have the operation. On October 14, 1931, two days after appellant signed the settlement release and eight or ten days before he actually received the money, he consulted Dr. Alexander in Wáco and Dr. Alexander advised appellant that it was not necessary for appellant to have an operation. Dr. Alexander testified that at the time he examined the appellant, on October 14, 1931, appellant had some fever; that he treated appellant for about ten days at said time; that in his opinion it would not have been a good idea to operate because there was pus in the gland; that, if all of the infected gland had been removed, the pus would have cleared away; that an operation to remove the gland would have kept appellant in bed for fourteen or fifteen days and he ought then to have been able to go back to work if no infection set in; that he examined appellant again in January, 1932, and in his opinion appellant was well and able to go to work; that since pus had already fornied in the glands at the time he first examined appellant, on October 14th, it was not advisable to perform the operation ; and that in his opinion, it would be ill-advised at that time.

The foregoing is the strongest interpretation we think that could be put on the testimony most favorable to the appellant. ‘ Under said facts, we think appellant did not show any ground or reason for setting aside the settlement he made with appellee. The only possible misrepresentation made to appellant by Dr. Colgin was that in his judgment an operation to remove the infected gland should be performed and that, if appellant would undergo the operation, he would be entirely well in from two to four weeks. ■ Whether the doctor was correct will never be known because, under the undisputed facts, said operation was not performed. At the time Dr. Colgin told appellant that he thought the operation should be performed’ and sent him to the insurance company’s agent to make some settlement, appellant knew the opinion of said doctor and. therefore made the settlement with appellee with full knowledge of the opinion of said physician. Prior to the time he actually accepted the money and consummated the settlement, appellant had been examined by his own physician, Dr. Alexander, who told him it was not necessary or best for him to have the operation. Dr. Colgin’s testimony was to the effect that he told appellant to go to the agent of the insurance company and tell him that the operation was necessary and that the expenses would be $150 and make arrangements with the insurance company to get money to pay for said operation. Whether the doctor’s version or appellant’s version of said conversation is correct, becomes and is immaterial.

The only misrepresentation appellant claims the agent of appellee made was that, if the parties did not agree on a settlement and the matter was taken to court, it would be kept in court from two to five years. This was purely an opinion of the parties, one knowing as much as the other. It is almost common knowledge that litigation frequently is kept in court for a long number of years.

Under the testimony of appellee’s agent, he was allowing appellant the $150 doctor bill which would be required for the operation and $75 additional compensation. Appellant,, before the Industrial Accident Board approved the settlement and prior to the time appellant accepted the money, was advised by his own doctor that the operation suggested by Dr. Colgin was not needed. Appellant took his doctor’s advice and did not have the operation. Whether appellant chose the wise course will never be known.

We think the pleadings are sufficient to support a cause of action, and,, as stated, unquestionably the evidence shows appellant was injured, but there is no evidence in the record of any probative force showing that appellee obtained said release or that appellant made said settlement by reason of any fraud practiced on him or by reason of any accident or mutual mistake.

Appellant’s assignments of error are all overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CALHOUN, J..

license: Public Domain

text:
    Emanuel ALLEN v. STATE.
    No. 15724.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    W. J. Tullos, of Livingston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J..

The offense, theft of a hog; the punishment, two years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion ■ of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    Speck BECHAN, alias Tommy Bucklain, v. STATE.
    No. 15751.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    A. H. Waldrop, of Henderson, for appellant.
    Lloyd'W. Davidson, State’s Atty., of Austin, for' the State.
   HAWKINS, J.

Conviction is for robbery; punishment assessed at twenty-one years! confinement in the penitentiary.

The record is before this court without a statement of facts or bills of exception. In such condition nothing is presented for review, except we observe that in passing sentence upon appellant the court overlooked giving appellant the benefit of the Indeterminate Sentence Law. The minimum punishment for the offense for which appellant was convicted is five years. The sentence will be corrected to direct the superintendent of the penitentiary to incarcerate appellant in that institution for not less than five nor more than twenty-one years.

As thus reformed, the judgment is affirmed.


author: CALHOUN, J.

text:
    Harvey BRADLEY v. STATE.
    No. 15722.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, theft oí an automobile; the punishment, three years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: LATTIMORE, J. MORROW, P. J.

text:
    Jess BRIGHT v. STATE.
    No. 15697.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.
    E. B. Lewis, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of hogs; punishment, two years in the penitentiary.

Upon his plea of guilty appellant was adjudged guilty. The jury refused to suspend the sentence. He moved for a new trial. There is no statement of facts in the record, and no complaint of any procedure. The record appears to present no error.

The judgment tvill be affirmed.

HAWKINS, J., not sitting.

On Motion for Rehearing.

MORROW, P. J.

Nothing has been added to the record since the original opinion was rendered.

The motion is overruled.


author: MORROW, P. J.

text:
    Cecil BROUSSARD v. STATE.
    No. 15772.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Theft of an automobile is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


author: CHRISTIAN, J.

text:
    Ex parte Ernest COLLINS.
    No. 15786.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    John J. Pichinson, of Corpus Christi, for appellant.
    ' Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant made application to the judge of the 117th judicial district for a writ of habeas corpus. The appeal is from an order remanding appellant to custody. No statement of facts appears in the record.

We have, before us the application and the order of the court remanding appellant to custody. In the condition in which we find the record, no question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    O. O. FRANKLIN v. STATE.
    No. 15133.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Mathis & Mathis and Berry & Berry, all of Houston, and Thompson & Barwise, of Fort Worth, for appellant.
    Jesse E. Martin, Crim. Dist. Atty., Cecil Rotsch and Stanley Bransford, Asst. Crim. Dist. Attys., all of Fort Worth, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

The offense is boolnnalüng; penalty assessed at a fine of $200 and confinement in the county jail for a period of thirty days.

Upon the written and verified request of the appellant, the appeal is dismissed.


text:
    Mrs. J. D. (Martha) JAMESON v. STATE.
    No. 15492.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    Howard Mays, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, misdemeanor theft; the punishment, confinement in the county jail for .ninety days.

The record is before us without a statement of facts .or bills of exception. No defect either in the information or procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    T. H. LEWIS v. STATE.
    No. 15446.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    E. H. Talbert and David C. Brown, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Negligent homicide is the offense; penalty assessed at confinement in the county jail for six months, and a fine of $200.

The record is before this court without a statement of facts and bills of exception. ■ No fault in the procedure has been perceived, nor called to the attention of the court.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    Layton MOSLEY v. STATE.
    No. 15761.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Earl M. Deterly, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for forgery; punishment, two years in the penitentiary.

The record is here without statement of facts or bills of exception. The indictment, the charge of the court, the judgment, and sentence appear to be regular.

The judgment will be affirmed;


text:
    A. J. NEWMAN v. STATE.
    No. 15760.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    J. D. Willis, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, seven years in the penitentiary.

The record is here without statement- of facts or bills of exception. The indictment, the charge of the court, the judgment, and sentence appear to be regular.

The judgment will be affirmed.


text:
    Monk SAMUELS v. STATE.
    No. 15513.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    James Thomason, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting intoxicating liquor ; the punishment, confinement in the penitentiary for one year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

It was charged in the indictment that appellant transported intoxicating liquor. The judgment recites that appellant is guilty of the offense of transporting liquor, and the sentence is in like terms. The judgment and sentence are reformed in order that it may be shown that appellant is condemned to confinement in the penitentiary for the offense of transporting intoxicating liquor.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved .by the court.


text:
    Jack L. TATE v. STATE.
    No. 15759.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    George E. Cooper and Prank W. Steinle, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for robbery; punishment, thirty years in the penitentiary.

The record is here without statement of facts or bills of exception. The indictment, the charge of the court, the judgment, and sentence appear to -be regular.

The judgment will be affirmed.


text:
    Pete VAIL v. STATE.
    No. 15736.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    L. C. Heath, of Tahoka, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is theft; the punishment, confinement in the penitentiary for two years.

Upon the written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    John WALLACE v. STATE.
    No. 15746.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Sam T. Holt, of Carthage, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; the punishment, one year in the penitentiary.

It is made known to this court by affidavit of the sheriff of Panola county that since the appeal to this court was perfected appellant has died.

It is the order of the court that the appeal be abated.


text:
    Charlie WILSON v. STATE.
    No. 15755.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    *“ Geo. B. Butler, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The oifense is burglary; penalty assessed at confinement in the- penitentiary for five years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


author: LEVY, T.

text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS, Appellant, v. UPTON and Roche, Appellees.
    No. 4255.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 6, 1932.
    Renfro, Ledbetter & McCombs, of Dallas, for appellant.
    R. E. Eubank and H. B. Birmingham, both of Paris, for appellees. t
   LEVY, T.

The plea of privilege to be sued in Dallas county, its domicile, was overruled, and the appellant has appealed.

The Joint Stock Land Bank is a body corporate with domicile in Dallas, Dallas county, Tex. The plea of privilege was in due form and filed timely. The appellees’ controverting affidavit set up, as ground for venue in Lamar county, in substance, that a “commission of five per cent, was agreed to be paid” for the sale of the property, and “that all letters and communications were had with reference to said County of Lamar, State of Texas,” and “that the said J. I. Rhodes whose bid of $10,000.00 for said property submitted by plaintiffs to defendant at the time of said transaction lived in Lamar County, Texas.”

Although not definite in terms, yet the controverting affidavit may reasonably be considered as setting up by intendment that the appellees found a purchaser in Lamar county who accepted the terms of sale of the land.

The venue may be laid in Lamar county. Danciger v. Smith (Tex. Civ. App.) 229 S. W. 909; subdivision 23, art. 1995.


author: HIGGINS, J.

text:
    D. D. HARRIS et ux. v. COMMERCIAL STANDARD INSURANCE CO.
    No. 2771.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 22, 1932.
    Bailey, Nickels & Bailey, of Dallas, for appellants.
    Earl A. Forsythe and John C. Read, both of Dallas, for appellee.
   HIGGINS, J.

Appellants have filed no brief herein. The record has been examined for fundamental error; finding none, the judgment is affirmed.


author: HIGGINS, J,

text:
    Thomas MADISON v. J. C. PHELPS.
    No. 2751.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Jan. 5, 1933.
    Thomas G. Burke, of Dallas, for appellant.
    Dallas C. Biggers, of Dallas (Carl C. Mays, of Dallas, of counsel), for appellee.
   HIGGINS, J,

Appellant has filed no brief herein. In the exercise of the discretion vested in this court in such cases, the record has been examined for the purpose of ascertaining if fundamental error is apparent. Finding no such error, the judgment is affirmed.


author: SELLERS, J.

text:
    J. W. WOOTEN, Appellant, v. FIRST TRUST JOINT STOCK LAND BANK OF CHICAGO, ILLINOIS, Appellee.
    No. 4275.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 17, 1932.
    B. O. Jones, of Clarksville, for appellant.
    A. L. Robbins, of Clarksville, for appellee.
   SELLERS, J.

The appellee, the Eirst Trust Joint Stock Land Bank of Chicago, Ill., brought this suit in the district court of Red River county and recovered judgment for the sum of $690.26 against the appellant, J. W. Wooten. The judgment also provided that appellant, Wooten, recover of the appellee the sum of $48 on his cross-action for damages. Prom this judgment as rendered by the court, the appellant has duly prosecuted this appeal.

Appellant’s assignments, as well as his propositions thereunder, relate solely to the sufficiency of the evidence to support the judgment, and we deem it sufficient to say that we have carefully considered the evidence in connection with the pleadings of the parties, and, in our opinion, both the pleadings and evidence are sufficient to support the judgment rendered by the court.

The judgment of the trial court is affirmed.


author: WALKER, Presiding Judge. TATUM, Judge,

text:
    STATE of Tennessee, Appellant, v. Donald Edward WERT, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 6, 1977.
    Certiorari Denied by Supreme Court March 14, 1977.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for appellant.
    W. Zane Daniel, Knoxville, for appellee.
   OPINION

WALKER, Presiding Judge.

We granted the state’s petition for certio-rari to determine whether or not the trial judge abused his discretion in suppressing the evidence obtained by a search of the appellee’s premises without a warrant. We hold that he did not and dismiss the petition for certiorari.

The appellee, Donald Edward Wert, was in possession of and living on a 50-acre farm in Knox County which was enclosed by a fence with the exception of about 400 feet on the eastern side along Clapps Chapel Road. That area of the farm is bounded by woods and to its west is a creek. In addition to the house, on the farm there were a barn, garden plot, tobacco field, corn field, hay field and other wooded areas. Nearby, but not on the premises, there were four houses and a church along Clapps Chapel Road.

The evidence was in dispute as to whether or not on the date of the entry there were four or five no-trespassing signs on the eastern side of the unfenced wooded area facing the road. Exhibits in the record show these signs which the appellee contends were there at the time of the search. The appellant’s witnesses say they did not see any signs when they entered. The trial judge did not think this determinative and did not make a finding on this disputed evidence.

On June 3, 1975, acting on information supplied by two informers, Knoxville police officers Richard Houser and Steve Sherrod went on the appellee’s farm to determine whether or not marijuana was being cultivated there. Entering the farm from the wooded area near Clapps Chapel Road, they found a marijuana patch. It was not visible from the road but could be seen only after entering the premises. Officers made another search June 9 by climbing the fence and found another marijuana patch. They searched again June 14 and arrested the appellee on his farm June 21 at which time they found some marijuana in a plastic bag on the well house about 15 feet from his home. After arresting him they then obtained a search warrant for his house and confiscated 32 pounds of green plant material, hand scales, hose and some fertilizer.

Obviously the legality of the initial search by Houser and Sherrod on June 3 determines the issue before us. If it was illegal, the subsequent searches were likewise illegal under the “fruit of the poisonous tree” doctrine. Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

Both sides agree that the ban against unreasonable searches and seizures in the Tennessee Constitution, Article I, Section 7, is broader than that of the United States Constitution, Amendment IV, because it covers “possessions” while the federal provision covers only “effects.” We are unable to accept this conclusion.

In Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857 (1967), our Supreme Court said that the federal and state provisions against unreasonable searches and seizures are identical in intent and purpose and the court would not construe the Tennessee article more favorably to the accused than its federal counterpart. It also said we should regard federal cases as particularly persuasive on search and seizure issues. See also Anthony v. Carter, Tenn., 541 S.W.2d 157 (1976).

The distinction between “possessions” and “effects” does not control the question before us. The United States Supreme Court has rejected the premise that distinctions based upon property interests control the right of the state or government to search and seize under the Fourth Amendment. Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, 705 (1960); Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 18 L.Ed.2d 782, 790 (1967); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

In Katz v. United States, the court said:

“(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
“(F)ourth Amendment protects people — and not simply ‘areas’ — against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”

The state argues that the marijuana patch was found in the open fields of the farm, an. area unprotected by the Fourth Amendment. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); but Katz has modified Hester by injecting the privacy concept to the open-fields doctrine. See Katz, supra, footnote 9; Air Pollution Variance Board v. Western Alfalfa Corporation, 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), which specifically referred to respondent’s privacy interest, although finding none in that case, because inter alia, he took no steps to designate his property as private by excluding the public therefrom; and United States v. Santana, supra, which applied both Katz and Hester to the situation where the defendant was in the doorway of her home and was visible to policemen in the street.

In holding that the search violated the Tennessee Constitution, the trial judge relied heavily on Welch v. State, 154 Tenn. 60, 289 S.W.2d 510 (1926), protecting one’s “possessions” in actual occupancy from unreasonable searches and seizures. By its argument, the appellant contends this case was wrongly decided and, in light of new authority, we should hold that the word “possessions” has a common meaning with the word “effects.” Such a holding will not help the appellant because we find that the search violated both the Federal and the State Constitutions.

In United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.1975), officers climbed a fence and entered Gedko’s wooded and hilly 160-acre farm in a rural area without a search warrant and observed his activities in growing and harvesting marijuana and listened to his conversation when a government airplane flew low over his farm. The government relied on the open-fields exception of Hester v. United States, insisting that the government could intrude on the property so long as its officers remained outside the curtilage. The district court rejected that argument, holding that Gedko, who enclosed his property with a fence and hence designated his farm as private, had a reasonable expectation of privacy protected by the Fourth Amendment to the federal constitution that was violated when the police observed his activities from within the farm’s boundaries without a warrant. Wert had a similar expectation of privacy here which was similarly violated by the police.

The intrusion of the officers on Wert’s land without a search warrant was unlawful and the trial judge properly sustained the motion to suppress the evidence obtained by it. He did not abuse his discretion but, on the contrary, correctly suppressed the evidence.

The petition for certiorari is dismissed.

DUNCAN, J., concurs.

TATUM, Judge,

dissenting.

I must respectfully- dissent. I agree with the majority that there is no distinction to be made between the United States Constitution and the Tennessee Constitution with regard to their respective provisions against unreasonable searches and seizures.

I do not agree that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) [hereinafter cited as Katz], has modified Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) [hereinafter cited as Hester]. Hester is a landmark holding of the United States Supreme Court which distinguishes the protection afforded in the curtilage and the open fields. It holds that the Fourth Amendment protection against unreasonable searches and seizures is not applicable to the “open fields”. The bench and bar have come to refer to the Hester rule as the “open fields doctrine”.

I can find nothing in Katz which indicates an intention by the United States Supreme Court to tamper with the open fields doctrine. In that case, FBI agents had monitored the defendant’s telephone conversation held in a public telephone booth by use of sophisticated electronic sound equipment. The Supreme Court held that this violated Katz’s Fourth Amendment rights in that he had a right to expect privacy while he was occupying the telephone booth, even though the telephone booth was accessible to the public. In this context, the Supreme Court observed that the “Fourth Amendment protects people, not places”. In Katz, the Supreme Court was not dealing with the open fields doctrine. The only mention of the doctrine is in Footnote 8 and the implication there is, if any, that the open fields doctrine is still alive and well:

“In support of their respective claims, the parties have compiled competing lists of ‘protected areas’ for our consideration. It appears to be common ground that a private home is such an area, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, but that an open field is not. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Defending the inclusion of a telephone booth in his list the petitioner cites United States v. Stone, D.C., 232 F.Supp. 396, and United States v. Madison, 32 L.W. 2243 (D.C.Ct. Gen.Sess.). Urging that the telephone booth should be excluded, the Government finds support in United States v. Borgese, D.C., 235 F.Supp. 286.” 389 U.S. 347, at 351, 88 S.Ct. at 511. (Emphasis supplied)

I have read the other United States Supreme Court cases cited by the majority in support of their holding. In none of these cases does the question presented in Hester or any issue involving the open fields doctrine come before the Court. There is no dictum in these cases which is indicative of disapproval of Hester on the part of the United States Supreme Court.

It is true that the United States District Court for the Western District of Wisconsin in United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis. 1975), found that a 160-acre farm upon which a crop of marijuana was growing was protected under the Fourth Amendment. I would not follow the precedent of the District Court in Wisconsin, but instead would follow the overwhelming number of cases decided by the various United States Circuit Courts of Appeal since the Katz opinion. None of these Circuit Courts make the assault upon Hester as was done by the Wisconsin District Court and by my colleagues, the majority. In United States v. Capps, 435 F.2d 637, 640 (9th Cir. 1970), the Ninth Circuit Court of Appeals held as follows:

“Appellee contends that even the entry upon the Elkins’ premises was improper because the officers did not have a warrant for the Oldsmobile and lacked probable cause to believe that the Pontiac was located on the property. This contention is without merit. Even assuming that the law enforcement officers were both trespassing and lacking in probable cause when they turned off the public road onto Elkins’ private driveway, it is a concession of no benefit to appellee. The Fourth Amendment’s protections do not extend to the ‘open field’ area surrounding a dwelling and the immediately adjacent curtilage, and therefore, information gained as a result of a civil trespass on an ‘open field’ area is not constitutionally tainted, nor is the search and seizure which ultimately results from acquiring that information. Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Wattenburg v. United States, 388 F.2d 853, 856 (9th Cir. 1968); McDowell v. United States, 383 F.2d 599, 603 (8th Cir. 1967); Giacona v. United States, 257 F.2d 450, 456 (5th Cir.), cert. denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104 (1958); Koth v. United States, 16 F.2d 59, 61 (9th Cir, 1926). Consequently, the fact that the agents first learned after they entered upon El-kins’ premises, that the Pontiac was located thereon, was not information improperly obtained.”

In Patler v. Slayton, 503 F.2d 472, 478 (4th Cir. 1974), the Fourth Circuit Court of Appeals held:

“. . . The maxim of Katz that the fourth amendment protects ‘people not places’ is of only limited usefulness, for in considering what people can reasonably expect to maintain as private we must inevitably speak in terms of places. Speaking in such terms, we said under similar circumstances in United States v. Brown, 487 F.2d 208, 210 (4th Cir. 1973), cert, denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974):
Appellants’ reasonable expectations of privacy — while extending to their dwellings and the immediate area around them and even to the area occupied by outbuildings such as the barns in question . . . — cannot, in light of Hester, be said to include the ‘open fields’ around the barn.
See also United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973). Even if Pat-ler could be said to have exhibited an actual expectation of privacy in the area searched, we cannot say that such an expectation is one that society is prepared to recognize as ‘reasonable.’ Katz, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).” (Emphasis supplied).

In Atwell v. United States, 414 F.2d 136, 139 (5th Cir. 1969), the Fifth Circuit Court of Appeals held:

“The record shows that the still in question was located approximately 250 yards from the back of a house in the open land beyond the curtilage of the house. Appellants argue that the Government should have proved that there was not an unlawful search or seizure before being allowed to introduce any testimony regarding what the officers saw at the still site. But inasmuch as the protection of the Fourth Amendment against unreasonable searches and seizures does not extend to ‘open fields,’ there was no unreasonable search. See, e.g., Hester v. United States, 1924, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898; Monnette v. United States, 5th Cir. 1962, 299 F.2d 847. Moreover, even if the officers were trespassing on private property, a trespass does not of itself constitute an illegal search. Monnette v. United States, supra; United States v. Young, 4th Cir. 1963, 322 F.2d 443. Accordingly, it was not error for the trial court to admit testimony regarding what the officers saw at the still.”

In United States v. Watt, 309 F.Supp. 329, 330 (N.D.Cal. 1970), the District Court for the Northern District of California cited Katz in support of the principle upon which the open fields doctrine is based:

“Apart from Chimel, all prior law upholds just that type of search conducted here under the ‘open field’ doctrine. That doctrine was first announced in Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 447, 68 L.Ed. 898 (1924):
As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields. The distinction between the latter and the house is as old as the common law.
Numerous cases have followed this principle since. E.g., United States v. Campbell, 395 F.2d 848, 848-849 (4th Cir. 1968); McDowell v. United States, 383 F.2d 599, 603 (8th Cir. 1967); United States v. Hassell, 336 F.2d 684 (6th Cir. 1964); United States v. Romano, 330 F.2d 566, 569 (2d Cir. 1964), aff’d 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Edwards v. United States, 206 F.2d 855, 856 (10th Cir. 1953); Janney v. United States, 206 F.2d 601, 604 (4th Cir. 1953); Koth v. United States, 16 F.2d 59, 61 (9th Cir. 1926). See also Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 n. 8 (1967); [Emphasis supplied] 47 Am.Jur. § 17, at 513; 79 C.J.S. Searches and Seizures § 14, at 791.
This is true whether the land is enclosed or unenclosed, Martin v. United States, 155 F.2d 503, 505 (5th Cir. 1946), and whether or not the land surrounds the house (as long as the land is not so intimate to the house as to be the curti-lage). United States v. Feldman, 104 F.2d 255, 256 (3d Cir. 1939). See generally 19 A.L.R.3d 727.”

Also see United States v. Brown, 487 F.2d 208 (4th Cir. 1973); United States v. Hollon, 420 F.2d 302 (5th Cir. 1969).

I would follow the reasoning of the California Court in Dean v. Superior Court for County of Nevada, 35 Cal.App.3d 112, 110 Cal.Rptr. 585 (1973):

“A generalized expression of Fourth Amendment doctrine usually excludes ‘open fields’ from the scope of constitutional protection. (Hester v. United States, 265 U.S. 57, 58-59, 44 S.Ct. 445, 68 L.Ed. 898; People v. Dumas, supra, 9 Cal.3d at [871] p. 882, fn. 10, 109 Cal.Rptr. 304, 512 P.2d 1208) Consistently with Katz v. United States, supra, the courts recognize that a test phrased in terms of ‘constitutionally protected areas’ often falls short; that a more fundamental test is whether the person has exhibited a reasonable expectation of privacy covering the area of the search or seizure, [citations omitted]. The immediate question, then, is whether the marijuana field lay within the owner’s reasonable expectations of privacy.
Had petitioner’s crop been wheat or oats, the open fields rule would have supplied a sufficient answer, for agriculturists do not expect their wheat or oat fields’ concealment from aerial view. Petitioner, on the other hand, claims that reasonable expectations of privacy blanketed his field of cannabis sativa. Was not the crop contraband? Did not its cultivation and possession expose the owner to prison? What more was needed to stimulate his strenuous insistence on privacy?
Petitioner erroneously gives identity to two unlike notions — an internal, uncom-municated need for privacy and a reasonable, exhibited expectation of privacy. Only the latter qualifies as a Fourth Amendment determinant. ‘The courts have implicitly recognized that man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute . . . Certain other places carry with them an expectation of privacy which, although considerable is less intense and insistent. . . . This hierarchy of protection arises not from the application of differing constitutional standards to various locales, but rather from an application of a single standard of reasonableness to all places in accordance with a fundamental understanding that a particular intrusion into one domain of human existence seriously threatens personal security, while the same intrusion into another domain does not.’ (People v. Dumas, 9 Cal.3d at pp. 882-883, 109 Cal.Rptr. at 311, 512 P.2d at 1215.)
Judicial statements like the foregoing disclose that mankind’s common habits in the use of domestic and business property supply a prime measure of the reasonableness of expectations of privacy, [citations omitted]. One who builds a swimming pool and sunbathing area in his backyard expects privacy (hence immunity) from aerial inspection. Areas reasonably used in ordinary business operations are assumedly entitled to similar immunity. Such areas are expectedly private according to the common habits of mankind. So was the area exposed to helicopter surveillance in People v. Sneed, supra; to the Sneed court, the area was the occupant’s ‘backyard.’ (32 Cal.App. 3d at [535] p. 542, 108 Cal.Rptr. 146.)
When the police have a plain view of contraband from a portion of the premises as to which the occupant has exhibited no reasonable expectation of privacy, there is no search in a constitutional sense; the evidence so displayed is admissible. [citations omitted]. One who establishes a three-quarter-acre tract of cultivation surrounded by forests exhibits no reasonable expectation of immunity from over-flight. The contraband character of his crop doubtless arouses . an internal, uncommunicated need for secrecy; the need is not exhibited, entirely subjective, highly personalized, and not consistent with the common habits of mankind in the use of agricultural and woodland areas. Aside from an uncom-municated need to hide his clandestine activity, the occupant exhibits no reasonable expectation of privacy consistent with the common habits of persons engaged in agriculture. The aerial overflights which revealed petitioner’s open marijuana field did not violate Fourth Amendment restrictions.
Pointing to the lack of a search warrant, petitioner charges illegality of the officers’ foot expeditions to the marijuana field. The reach of the Fourth Amendment no longer turns upon a physical intrusion into any given enclosure; hence, that a trespass was later revealed is not controlling. (Katz v. United States, supra, 389 U.S., at p. 353, 88 S.Ct. 507; People v. Krivda, 5 Cal.3d 357, 365, 96 Cal.Rptr. 62, 486 P.2d 1262.) After the aerial survey the officers still had inadequate means to establish the location with the particularity needed for a search warrant, [citations omitted]. Further investigation was necessary to establish the marijuana field’s location. In the course of this investigation the deputies made two trips afoot, traversing unfenced, unposted woodland and following dirt paths. The land may have been public or private. On their first expedition the officers met two men on a branch path who told them they were ‘probably’ on private property and asked them to leave. About a quarter mile distant from the well worn path, they encountered a homemade game refuge sign containing a telephone number. These were the only evidences of private ownership in the property. Neither of these evidences occurred on the path which ultimately led the officers to the marijuana field. On that path there were no badges of private ownership or of exclusion of travelers. The officers followed that path to a point where the tops of the marijuana plants were visible. Upon viewing contraband from a place where expectations of privacy had not yet been exhibited, the officers had probable cause and hence authority for a warrantless entry and seizure. [citations omitted]. Petitioner’s appearance and assertions of privacy did not divest the officers of that authority.” 110 Cal.Rptr. 585, at 589-590.

The standard that I would apply is “are such areas expectedly private according to the common habits of mankind in general?” I would not predicate the standard upon the expectations of marijuana farmers, but upon the common habits of mankind in general. I do not think it is determinative whether the marijuana farmer had “no trespassing” signs posted or whether the marijuana field is enclosed. Common sense would dictate to even the most inept law enforcement officer that a marijuana farmer desired and expected privacy even if he had no signs or fences. This same inept officer would know that a farmer raising corn, cotton or hay would not, according to the common habits of mankind, object to his crops being viewed even if he had posted signs or built fences.

Thus, the fencing or posting of signs does “exhibit” an expectation of privacy, but this expectation of privacy in an open field does not meet the requirement of “reasonableness” as does the use of a swimming pool in the yard or a telephone booth. The common habits of mankind expect privacy while in a telephone booth, or using the backyard swimming pool; but, not in an open field unoccupied by persons.

There is a conflict in the evidence as to whether the appellant even “exhibited” an expectation of privacy. There is a long, unfenced portion of this farm along a public road. The officers testified that there were no “no trespassing” signs posted on this unfenced boundary. The appellant’s proof is to the contrary. If the majority opinion is correct, then I think that it is essential that this question be resolved by the Trial Judge before the new rule promulgated by the majority can be applied. If the appellant did not exhibit his expectation of privacy along this road, then the new rule would not be applicable.

As stated by the United States Supreme Court in Hester, the open fields doctrine is as old as the common law. The doctrine has not been altered or modified by any court whose decisions are binding upon this court. The doctrine is universally 'recognized, followed and respected. It is sensible and just. I cannot join with the majority in pioneering a precedent that would abolish this time-honored principle.

I think that the Trial Judge erred in suppressing the evidence obtained without a search warrant. I would grant the relief prayed in the State’s Petition for Certiorari and would remand the case to the Trial Court with instructions to admit evidence of this gross violation of the drug laws.


author: RUSSELL, Judge. MITCHELL, Judge,

text:
    George G. BRAZELTON and Roy Rodgers, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 14, 1974.

      Herbert R. Rich and Philip M. Carden, Nashville, for plaintiffs in error.
    David M. Pack, Atty. Gen., C. Hayes Coo-ney, Asst. Atty. Gen., Arnold Peebles, Jr., Asst. Dist. Atty. Gen., Nashville, for defendant in error.
   RUSSELL, Judge.

OPINION

George G. Brazelton and Roy Rodgers were jointly indicted in a four-count indictment charging possession of certain obscene magazines for purposes of sale (three counts) and exhibiting a “peep show” (fourth count), as proscribed by T.C.A. § 39-3003. They were found guilty under each of the first three counts, and each was fined $5,000.00 on each count and sentenced to one day in jail on each count.

Although the offenses charged are only misdemeanors, this trial was protracted and sharply contested. A full day was necessary to select a jury. Five full days, including some late hours, were required for the trial. The jury was sequestered by the Court on its own motion after the first night. Eighty-one grounds are included in the motion for a new trial. Thirty-four assignments of error are urged upon this appeal, and none can be said to be frivolous. The bill of exceptions consists of eight volumes.

The cases have been compressed a bit by the State’s concession that the three counts really embrace only one offense, and the State only insists upon affirmance of one $5,000.00 fine and one day in jail as to each defendant.

The defendants were clerks in an adult book store. An assistant district attorney general and an investigator from that office went to the store, viewed a peep show, and purchased three illustrated magazines. One defendant took their money, while the other put the purchases into a paper bag. Each of the magazines became the foundation for a separate charge, as was exhibiting the peep show. (This latter charge, which could not be supported by the peep show film, which had not been seized, was testified to by the investigator who viewed it, and not abandoned by the State until jury argument, after which a directed verdict of not guilty as to that count was entered.)

The three magazines involved presented a jury issue as to their obscenity. We have recently held, in the case of Ralph Mitchum v. State, filed in Jackson on November 20, 1973, that:

“We are of the opinion that it is the depiction or description of sexual conduct that our statutes were clearly designed to apply to, and that the two specific examples given by the Court in Miller of what a state could define for regulation are simply the obvious examples of obscenity that immediately come to mind. In fact, the examples seem to cover the subject rather completely. We hold that implicit in the statutory definition of obscenity set out in T.C.A. § 39-3007 is that it applies only to the depiction or description of sexual conduct; and that included in the statutory definition the trier of fact may find to be obscene (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”

The publications herein found to be obscene could be said to depict, inter alia, lewd exhibitions of the genitals.

These convictions must be reversed, however, because of the tactics and arguments employed by the Assistant District Attorney General. A false and irrelevant issue was deliberately injected into these cases. These defendants were employed by a company (apparently a corporation) by the name of International News. Both defendants worked in the store only a relatively short time, and neither was employed there at the time of trial. Throughout the trial a deliberate attempt was made to convey to the jury that the real party in interest was not these defendants, so much as it was some phantom corporation. The whole approach attained its ultimate honesty, and became clearly reversible error, when the prosecuting attorney was permitted to argue, over objection, as follows:

“You know, the thing that keeps on occurring to me is that there are really not just these two defendants on trial in this case. These magazines and this corporation are really on trial in this case, but there is really only one way that you can punish that — that mysterious element in our community, and I say that’s with a fine just like in Memphis. I’m asking for a five thousand dollar fine.
“As to these two defendants, they were just employees in that store. * * * I don’t think, in view of all the facts and circumstances, that they should be sentenced to lengthy sentences. * * * I ask you for the maximum fine per count.
“ * * * The matter of confinement as to these two men is up to your own best judgment. They are just employees. But I am asking you to shoot the overhead of that corporation up about fifteen thousand dollars.”
⅜: ⅜ * * * *
“ * * * What kind of business is this? Who is flooding the community with this stuff? I’m not trying to get you enraged, I want to know. And he’s so careful to protect that client that owns five book stores in this town. And he accuses me of chicanery?”

The argument was there interrupted by defense counsel, Mr. Rich, with this objection and statement:

“Your Honor, I honestly apologize to General Peebles, but this business about a third defendant, I only represent these two men * *■ * and I wish they would stop referring to some other defendant. There is no other defendant.”

The Court then ruled:

“Members of the jury, that is just the theory of the prosecutor in this case. The two defendants that are on trial are the defendants Brazelton and Rodgers. General Peebles is just expounding his theory to you. You will determine the facts in the case.”

The jury returned a verdict of the maximum fine on each count as to each defendant; but set a jail sentence of only one day per count, and recommended the suspension of that. It seems obvious that the prosecuting attorney convinced the jury that some corporation would have to pay any fines levied. Such an argument was not legitimate theory for presenting to the jury in this case, and clearly calls for reversal. Its prejudicial effect cannot be hidden in the context of this record; nor can the error be said to go to punishment alone, as a desire to punish the non-party corporation could have influenced the finding of guilt itself. The jury certainly didn’t seem to want to punish the two defendants, even recommending that one day sentences be suspended; and might well have found them not guilty upon a proper trial.

We reverse and remand the case for a new trial upon a single charge of possessing obscene material for purpose of sale, as set out in the first three counts of the indictment.

All other assignments of error have been carefully considered. Assignment number twelve goes to the dismissal for cause of certain jurors' who expressed disagreement with the law. Upon retrial, should a similar question come up, it should be determined that the juror cannot or will not follow the law (regardless of disagreement with it) before he or she is disqualified.

Assignment number twenty-one complains that the reading of the publications was left to the jury to do out-of-court, in the jury room, under the supervision of jury officers, but with parties and counsel excluded. The learned trial judge, who made a commendable effort to conduct a fair and proper trial under what were difficult circumstances at times, felt that the jury should not be required to view and read the allegedly obscene material in open court. While this motive is both commendable and understandable, the very fact that this key evidence was presented in this unique fashion could not but be a pre-judgment of its nature, and could have so influenced the jurors. We hold that it should have been introduced into the record just as any other evidence consisting of writings and/or pictures, absent an agreement to let the jurors read and view the material for themselves privately in the jury room.

Assignment of error number twenty-eight, directed at certain comments of the prosecuting attorney which seemed to be calculated to cause the jury to be influenced by the defendant’s not taking the stand, is sustained.

All other assignments of error are overruled. The case is reversed and remanded for a new trial, consistent with this opinion.

OLIVER, J., concurs.

MITCHELL, J., dissents.

MITCHELL, Judge,

Judge William S. Russell has prepared an excellent opinion in this case, concurred in by Judge W. Wayne Oliver, reversing the judgment and ordering a new trial.

I am unable to agree that the judgment should be reversed. Therefore I respectfully dissent.

I agree that error was committed in that the Trial Judge allowed the District Attorney to indulge in prejudicial argument to the jury. It was also error for the Trial Judge to allow the members of the jury to take with them into the jury room for examination out of the presence of the Court, counsel and the defendants, certain of the exhibits filed in the evidence.

There was, in my opinion, abundant evidence of the guilt of the defendants. I am of the opinion that the material shown to have been possessed and sold by the defendants was obscene within the meaning of the statutes.

I would hold that the errors committed in the trial did not affect the result and that they can be treated as harmless under T.C.A. 27-117.

I would affirm the judgment on one single charge of possessing obscene material for the purpose of sale.


author: STEAKLEY, Justice. McGEE, Justice,

text:
    W. Sale LEWIS, Savings and Loan Commissioner, et al., Petitioners, v. METROPOLITAN SAVINGS AND LOAN ASSOCIATION et al., Respondents.
    No. B-5998.
    Supreme Court of Texas.
    March 9, 1977.
    Rehearing Denied May 25, 1977.

      John L. Hill, Atty. Gen., Tom M. Pollan, Asst. Atty. Gen., McKay & Wash, John J. McKay, Austin, Kenley, Boyland, Hawthorn, Starr & Coghlan, Herbert Boyland, Longview, for petitioners.
    Heath, Davis & McCalla, Dudley D. McCalla, Austin, for respondents.
   STEAKLEY, Justice.

This is an appeal from an order of the Savings and Loan Commissioner approving a charter for an additional savings and loan association in Longview, Gregg County, Texas. See Tex.Rev.Civ.Stat.Ann. art. 852a. The applicant, to be known as the Gregg County Savings and Loan Association, is a petitioner here. The application was opposed by three existing savings and loan associations in Gregg County, known as Metropolitan Savings and Loan Association, Kilgore Savings and Loan Association, and Longview Savings and Loan Association. The trial court sustained the approval order of the Commissioner, also a petitioner here, but this judgment was reversed by the Court of Civil Appeals and the proceeding was remanded to the Commissioner with instructions to deny the charter application. 535 S.W.2d 35. We modify the judgment of the Court of Civil Appeals to the extent of instructing the Commissioner to proceed in accordance with this opinion.

The Court of Civil Appeals determined that the contestants, respondents here, were denied due process by the hearing examiner in his exclusion from the administrative record of competent and material evidence proffered by the contestants. We granted writ of error to resolve the question of whether an approval order of the Savings and Loan Commission is invalid for arbitrariness when the contesting parties are denied due process of law in the conduct of the administrative hearing, notwithstanding that under the record as made, the order may be said to have reasonable factual support under the precepts of the substantial evidence rule. We now answer this question in the affirmative.

It is the basic contention of the Attorney General on behalf of the Commissioner, and of counsel for the applicant association, that the only test to be considered by the courts in determining the issue of arbitrariness vel non of an approval order of the Savings and Loan Commissioner is whether the order is supported by substantial evidence. The argument in effect is that a denial of due process in the administrative hearing becomes immaterial and beside the point if the order can be said to have reasonable evidentiary support in the administrative record.

Broadly speaking, the substantial evidence rule is a court review device to keep the courts out of the business of administering regulatory statutes enacted by the Legislature; but it remains the business of the courts to see that justice is administered to competing parties by governmental agencies. As stated by Professor Davis in his Administrative Law Treatise, Vol. 4, § 29.01: “Although the scope of judicial review of administrative action ranges from zero to one hundred per cent, that is, from complete unreviewability to complete substitution of judicial judgment on all questions, the dominant tendency in both state courts and federal courts is toward the middle position known as the substantial-evidence rule. Under this rule, the court decides questions of law but it limits itself to the test of reasonableness in reviewing findings of fact. Broadly, questions of law include not only common law, statutory interpretation, and constitutional law, but also questions of administrative jurisdiction, of fair administrative procedure, and of protection against arbitrary or capricious action or abuse of discretion.”

In Texas, the substantial evidence rule had its origin in appeals from orders of administrative agencies under statutes requiring de novo review in court. In this type of appeal the evidence is heard anew by the court and the conduct of the administrative hearing, and the evidence heard by the agency, are of secondary, if any, importance. Trapp v. Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424 (1946); Cook Drilling Company v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035 (1942); Shupee v. Railroad Commission of Texas, 123 Tex. 521, 73 S.W.2d 505 (1934). In practical result, it has not taken much evidence under our decisions to qualify as substantial. In fact, the evidence may be substantial and yet greatly preponderate the other way. Cf. Gerst v. Goldsbury, 434 S.W.2d 665 (Tex.1968). Moreover, most contested administrative decisions are made in the context of disputed facts with evidence of a substantial nature on both sides. Even so, the proceedings of an administrative agency must meet the requirements of due process of law. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1962); Railroad Commission v. Alamo Express, 158 Tex. 68, 308 S.W.2d 843 (1958); Francisco v. Board of Dental Examiners, 149 S.W.2d 619 (Tex.Civ.App.1941, error ref’d).

We recognized in Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966) that Article 852a § 11.12, relating to judicial review of an order of the Savings and Loan Commissioner, does not provide for the application of the test or procedures usually employed in determining the validity of an administrative order; and further, that a hearing before a hearing officer of the Savings and Loan Commissioner is a different proceeding from the informal hearing considered by this Court in Cook Drilling Company v. Gulf Oil Corporation, supra. We also said that the effect of Article 852a was to adopt the rule that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing and not upon evidence originally produced at a subsequent trial de novo in court. However, the method of review, i. e., under the substantial evidence rule, is unchanged. Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702 (Tex.1968). What occurs, then, at the administrative hearing becomes of paramount importance in the statutory procedures established by Article 852a. If there is evidence in an administrative record that can be said to qualify as substantial, the parties may yet have been denied due process and the rudiments of fair play in the conduct of the administrative hearing that produced the record upon which the agency acted. See Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 S.W.L.J. 239 (1969); Berger, Administrative Arbitrariness and Judicial Review, 65 Colum.L.Rev. 55 (1965); Jaffe, The Right to Judicial Review, 71 Harv.L.Rev. 401 (1958).

As indicated earlier, our primary concern in granting writ of error was whether the parties opposing the charter application were denied due process by rulings of the hearing examiner that excluded competent and material evidence from the administrative record, thus precluding its consideration by the Commissioner in his decision process. This is particularly represented by the exclusion from the record of what is identified as Contestant’s Exhibit 34, and for the reasons now to be stated we hold that the opposing parties were denied due process by this ruling.

The case of the applicant for a charter to establish a fourth savings and loan association in Longview, Gregg County, Texas, rested principally upon the testimony of Dr. Robert Branson of Bryan, Texas, as an economic-expert witness. It is evident from the approval order of the Commissioner that he was greatly influenced by the testimony of this witness in reaching his decision favorable to the application. It was shown that Dr. Branson had supported similar applications in prior proceedings and that in his testimony he had employed certain tests or standards in reaching his expert opinion regarding the need for additional savings and loan facilities. The methodology employed by Dr. Branson was demonstrated in Contestant’s Exhibit 3 which was admitted into evidence by the hearing examiner for the purpose of showing “the procedure this expert witness has used in the past.” Exhibit 3 contained a series of tables or ratios prepared by Dr. Branson in an earlier study in support of his testimony in a prior proceeding. Gregg County was utilized in this study as a comparable county.

The evidence identified as Contestant’s Exhibit 34 was prepared by Dr. James R. Vinson, an expert witness for the contesting parties. The Exhibit was predicated upon the methodology of Dr. Branson as exhibited in Exhibit 3, with the economic information updated with respect to Gregg County, Texas. This information was displayed in the manner previously used by Dr. Branson and Exhibit 34 demonstrated that on the basis of the update, Gregg County, Texas was at the opposite end of the scale from the tests or standards previously utilized by Dr. Branson. This witness had previously found a need for a new association in the fact that the existing associations had a high buying income per association, whereas Gregg County was shown to have the lowest buying income per association. Similarly, Dr. Branson had previously found a need for a new association because of a low assets per capita figure, whereas Gregg County was shown to have the highest assets per capita. Finally, Dr. Branson had previously found need because of a high ratio of income to assets, whereas Gregg County was shown to have the lowest ratio of income to assets.

In our view, the evidence reflected in Exhibit 34 was clearly competent and relevant and the error in its exclusion required the reversal by the Court of Civil Appeals of the judgment of the trial court and the remand of the proceeding to the Commissioner. From our study of the record we do not consider that Exhibit 34 was offered by the Contestants for the purpose of establishing a norm or standard, or criterion, as argued by petitioners. Nor do we regard the evidence as cumulative even if, as asserted by petitioners without record references, “all of the facts in Exhibit 34 pertaining to Gregg County were in evidence before the Commissioner.” It is apparent to us that these arguments misconceive the evidentiary function and effect of Exhibit 34. The evidence in the Exhibit was proffered for the purpose of impeaching the testimony of Dr. Branson and might well have been viewed by the Commissioner as doing so. In such purpose and effect, the evidence also tended to weaken the eviden-tiary support for an additional savings and loan association in Gregg County, Texas. Of course, we cannot determine what influence this excluded evidence might have had upon the Commissioner in his decision process. At the least, its exclusion may have affected the result, and in fairness to the opposing parties the Commissioner should have had such evidence before him. Moreover, this comports with the statutory directive of § 11.11(2) of Article 852a that “[0]pportunity shall be afforded any interested party to respond and present evidence and argument on all issues involved in any hearing held under any provision of this Act.”

Professor Cooper in his treatise on state administrative law draws these conclusions:

The exclusion of proper evidence may vitiate the agency’s decision, if it appears that its exclusion may have affected the result. State courts agree with decisions in the federal courts that refusal to receive competent and material evidence may be a denial of due process. The requirement that proper evidence be received is a necessary counterpart of the rule that the agency must give due weight to all the evidence before it; refusal to consider proper evidence which has been duly proffered falls within the condemnation that voids arbitrary administrative action.
If it appears that the excluded evidence could not materially have affected the outcome of the case — if a remand to receive and consider the evidence improperly excluded would amount to nothing more than “a postponement of the inevitable,” the error committed is not prejudicial. But normally it is impossible for a reviewing court to be assured that the outcome could not have been affected by the consideration of the excluded testimony, and in the usual case the necessary result of the exclusion of proper testimony is to void the administrative order. Cooper, State Administrative Law, Vol. I (1965) pp. 403, 404.

The governing rule was stated in Donnelly Garment Co. v. NLRB, 123 F.2d 215 (8th Cir. 1941), and restated with approval in NLRB v. Burns, 207 F.2d 434 (8th Cir. 1953), as follows:

“That a refusal by an administrative agency such as the National Labor Relations Board to receive and consider competent and material evidence offered by a party to a proceeding before it, amounts to a denial of due process is not open to debate. * * * That the Board would or might have reached no different conclusion had the rejected evidence been received, is entirely beside the point. The truth is that a controversy tried before a court or before an administrative agency is not ripe for decision until all competent and material evidence proffered by the parties has been received and considered.

In the eyes of the law there is no hearing unless a fair opportunity is afforded the parties to prove their case before an administrative agency. People ex rel. Hirschberg v. Board of Supervisors, 251 N.Y. 156, 167 N.E. 204, 211 (1929). See also Gallant’s Case, 326 Mass. 507, 95 N.E.2d 536 (1950); Prince v. Industrial Comm’n, 89 Ariz. 314, 361 P.2d 929 (1961).

The decision of the Savings and Loan Commissioner is not governed by the precepts of the substantial evidence rule, and his responsibility is not one of determining if a particular result will be supportable by application of the rule to the administrative record. To the contrary, the decision of the Commissioner is to be in the public interest after full consideration of all the surrounding facts and circumstances, and in fairness and justice to the competing parties. Essential to the discharge of this responsibility is an administrative record that presents the relevant and material facts, and a determination by the courts of whether a particular administrative record fairly does so requires an examination of the whole record. Article 852a does not establish a self-contained administrative process unreviewable by the courts for arbitrariness if the administrative record, no matter how it came about, can be said to contain substantial evidence in support of the ultimate action of the Commissioner.

This is not to say that an order of the Commissioner is always insecure in court if the hearing examiner has made mistakes in the admission or exclusion of evidence, or in other respects. Nor is it to say that a hearing examiner, who may or may not be trained or experienced in the law, must measure up to judicial standards in the conduct of an administrative hearing. But it is to say, as we said in Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966) that arbitrary action of an administrative agency cannot stand. There is arbitrariness where the treatment accorded parties in the administrative process denies them due process of law. While we recognized in Gerst v. Nixon that the test generally applied by the courts in determining the issue of arbitrariness is whether or not the administrative order is reasonably supported by substantial evidence, we made clear in the original opinion and again on Motion for Rehearing that the record there did not present a question of procedural due process.

The judgment of the Court of Civil Appeals is modified so as to remand this proceeding to the Savings and Loan Commissioner for further proceedings consistent with this opinion; and as so modified, the judgment of the Court of Civil Appeals is affirmed. This modification will permit the Commissioner to order a reopening of the hearings and thereafter to reconsider his decision. See Article 852a § 11.12(6) and First Savings & Loan Ass’n of Del Rio, Texas v. Lewis, 512 S.W.2d 62 (Tex.Civ.App.1974, writ ref’d n.r.e.).

McGEE, J., dissents in an opinion in which GREENHILL, C. J., and DENTON, J., join.

McGEE, Justice,

dissenting.

I respectfully dissent.

I read the majority opinion to hold that the contestants in this case, respondents herein, were denied due process of law, primarily because of the exclusion of contestants’ Exhibit 34, regardless of the fact that the Commissioner’s order is supported by substantial evidence.

I disagree with the majority opinion in its holding that the exclusion of Exhibit 34 was a violation of due process. There are situations where the wrongful actions of the hearing officer would be so detrimental to the presentation of a party’s position that it would constitute a violation of due process, but the wrongful exclusion of Exhibit 34 was not the kind of error which would deny contestants due process of law. The majority states that excluding Exhibit 34 was harmful in that it could have impeached the testimony of Dr. Branson. I believe that Exhibit 34 was only cumulative of other evidence which sought to impeach Dr. Bran-son’s testimony and its exclusion was harmless. Contestants offered Exhibit 3, a study done six years earlier by Branson which compared a different county, Bowie County, to eight other counties, one of which was Gregg County. Contestants’ Exhibit 3 was admitted to show the prior methodology used by Branson and was admitted over the applicant’s objection. The methodology used by Branson in the Gregg County study was substantially different than that used in the Bowie County study. Exhibit 3 had absolutely no relevance to the charter application in Gregg County. The contestants then sought to admit Exhibit 34 which used the methodology of Exhibit 3 with updated figures. Exhibit 34 was excluded by the hearing commissioner. The majority opinion states that the value of Exhibit 34 was its impeachment of Branson’s testimony. Exhibit 34 could not impeach Branson as to the Gregg County study because the methodology used by Branson in the Gregg County study was different from that used in the Bowie County study. I disagree with the majority opinion which holds that the exclusion of Exhibit 34 was so harmful that it denied contestants due process of law. Remanding this case to receive and consider Exhibit 34 is nothing more than “a postponement of the inevitable.” 1 Cooper, State Administrative Law, at 404 (1965).

The exclusion of Exhibit 34 was not reversible error because witnesses for contestants testified to what Exhibit 34 sought to show. The purpose for introducing Exhibit 34, other than impeachment, was to show that Gregg County was not a good location for an association because the source of savings deposits was small, there was effective participation by existing associations, and the potential for new customers was not great. Contestants’ expert, Dr. Vinson, testified to the active participation and competition in the home loan business. The officers of the contestants testified that the source of savings deposits was small due to the number of associations and the competition for these loans. This could be the result sought to be shown by ratio one in Exhibit 34. The officers of the contestants and Dr. Vinson testified to the active participation by existing associations in securing deposits and in making loans. Ratio two in Exhibit 34 reflected this because Gregg County had a high ratio of savings and loan assets per capita. Ratio three of Exhibit 34 sought to show the potential for future customers by comparing the savings and loan assets with the effective buying income of Gregg County. The officers of contestants testified that the competition for customers was fierce and that there was not a great potential for new customers in Gregg County. While none of this evidence was presented in ratio form as it was in Exhibit 34, the things that Exhibit 34 sought to show were testified to and were before the Commissioner.

In Benson v. San Antonio Savings Association, 374 S.W.2d 423 (Tex.1963), the unsuccessful applicant alleged denial of due process because the trial court refused to allow him access to an investigative report of the Commissioner. This court held that although refusal to allow examination of the report was error, the case did not have to be remanded. The court stated:

“All of this, however, does not require a reversal and remand of this case. The investigative report, even if admissible in evidence in the trial court by reason of Art. 3731a, § 1, Vernon’s Ann.Civ.Stat., is necessarily hearsay and whether favorable or unfavorable to San Antonio Association, could not serve to show that the Commissioner’s rejection of the application was not supported by substantial evidence. From the record we must assume it was merely cumulative of the evidence introduced.” 374 S.W.2d at 429.

See, Lewis v. Southmore Savings Ass’n, 480 S.W.2d 180, 184 (Tex.1972); Gerst v. Nixon, 411 S.W.2d 350, 357 (Tex.1966).

The holding of the majority opinion requires reversal of evidentiary errors made by hearing officers who are not required to be attorneys. The majority opinion states that not all evidentiary errors will require reversal and that the hearing examiner does not have to meet judicial standards in the conduct of a hearing. The standard which these hearing officers must meet is unannounced and the result of this opinion seems to indicate that mistakes by hearing officers will be grounds for reversal just as in a judicial proceeding. The majority’s holding will cause appellate courts to review every case in which contested evidence was excluded at the hearing. I think this will result in hearing officers admitting all contested evidence due to fear of reversal. This will cause larger records of charter hearings, which are already voluminous, and raise the problem of placing incompetent evidence before the Savings and Loan Commissioner. The argument could then be asserted that reversal is required because the Commissioner considered incompetent evidence.

I would reverse the court of civil appeals and affirm the order of the Commissioner granting the Savings and Loan Association charter.

GREENHILL, C. J., and DENTON, J., join in this dissent.

      . The Court of Civil Appeals also ruled that the fact findings of the Commissioner were not in compliance with the requirements of § 11.11(4) of Article 852a; and, further, that the approval order is not reasonably supported by substantial evidence. We do not reach either of these questions under our disposition of the appeal.

      . Much has been written about the problem of judicializing administrative procedures. See Friendly, “Some Kind of Hearing,” 123 Pa.L. Rev. 1267 (1975); and the analysis by Professor Davis of the “residuum rule” that requires a reviewing court to set aside an administrative finding unless the finding is supported by evidence which would be admissible in a jury trial. Davis, Administrative Law Treatise, Vol. II, § 14.10 (1958). But see People v. Board of Supervisors, 251 N.Y. 156, 167 N.E. 204, 207 (1929) where it was said: “[Djecision is intrusted to men who cannot be presumed to be learned in technical rules of law; common sense dictates the conclusion that they may not be required to apply rules which lie beyond what they may be presumed to know. Their decisions must, of course, be based upon a consideration of the relevant facts and a fair opportunity must be afforded to present to them such facts as should properly enter into their decisions.”