author: HARBISON, Justice. HENRY, Justice

text:
    Richard HARRISON and J. 0. Harrison, Petitioners, v. Linda K. PITTMAN, Respondent.
    Supreme Court of Tennessee.
    March 1, 1976.

      Kendred A. White, White & Witt, Madi-sonville, for petitioners.
    Clifford E. Wilson, Kinnard & Wilson, Madisonville, for respondent.
   OPINION

HARBISON, Justice.

This case involves a claim for personal injuries by respondent, Mrs. Linda K. Pittman, arising out of an automobile accident which occurred in Monroe County on July 20, 1972. Mrs. Pittman was a passenger in an automobile owned and driven by her husband. This automobile was proceeding in an easterly direction on Acorn Gap Road at a point where this road intersects a through or arterial roadway, known as Oak Grove Road. The latter road runs generally in a north-south direction.

The accident occurred at approximately 5 a. m., before sunrise, and at a time when all of the witnesses testified that there was complete darkness.

Both of the - roadways in question are paved, two-lane county roads. At the southwest corner of their intersection is situated a church, and there is a paved apron adjacent to and along Acorn Gap Road beside and in front of this church. On the northwest side of the intersection there is open area, consisting of an old cemetery. On the southeast corner of the intersection is a newer cemetery, and all four corners of the intersection are open and unobstructed, except possibly for some weeds or summer growth, as testified to by Mr. Pittman. The intersection is level, and a driver of a motor vehicle proceeding on either of the two roadways has an unobstructed view for a considerable distance, probably at least 150 to 200 yards. As one proceeds in a southerly direction along Oak Grove Road, the road descends a slight grade into the intersection, but it is uncontradicted that a driver of a vehicle approaching the intersection on Acorn Gap Road could see at least 150 yards to the north along Oak Grove Road.

Petitioner Richard Harrison was driving his father’s automobile in a southerly direction along Oak Grove Road at a speed which he estimated at from 50 to 55 miles per hour. The lights on his automobile were burning, and there were no other vehicles in the area, except the Pittman automobile. Harrison was en route to his place of work, and testified that he was in no particular hurry, and that he was driving at a normal rate of speed. He has no memory of the facts of the accident, and remembers nothing that occurred after he reached a point about 150 yards north of the intersection of Acorn Gap Road. His next recollection is awakening in the hospital some three days later, and there is ample medical evidence in the record that he sustained a head injury and was disoriented for more than two days following the accident.

Mr. and Mrs. Pittman were approaching the intersection from the west, driving east, and both of them testified that the lights on their automobile also were burning. Mr. Pittman said that the stop sign governing traffic on Acorn Gap Road was situated more than 90 feet from the actual intersection, so that he did not stop his automobile at the stop sign, but said that he came on up to the edge of Oak Grove Road. At the trial of this case Mr. Pittman did not at any time state that he actually brought his vehicle to a stop. He did so state in a discovery deposition, and Mrs. Pittman testified that he stopped. Mr. Pittman, however, said that he slowed and looked to his left, and saw nothing coming. He said that his view was partially obstructed by some weeds growing in the northwest corner of the intersection, in the cemetery area, and he proceeded to pull his automobile out into Oak Grove Road and crossed one-half of the road before striking the Harrison automobile in its right front side. There was a terrific impact between the two vehicles, both of which sustained severe damage. The two vehicles proceeded from 35 to 60 feet southerly on Oak Grove Road, and came to rest with the Harrison vehicle off the Oak Grove Road, on the easterly side, or to the left, insofar as Harrison was concerned. The Pittman automobile was athwart Oak Grove Road, angled against the Harrison vehicle after the accident.

There is no question but that some lights were burning on the Harrison vehicle after the accident. Two witnesses saw them and one of the witnesses testified that he gave instructions to have the lights turned off, because Mr. Harrison’s mother, who had come to the scene, was apprehensive that there might be a fire.

Petitioners Harrison sued Mr. Pittman for the personal injuries of Richard Harrison and the property damage of his father. Mr. and Mrs. Pittman each sued the Harri-sons for their respective personal injuries, and Mr. Pittman sued for property damage and loss of consortium.

At the conclusion of the evidence in chief in the action brought by the Harrisons, a motion for directed verdict was made on behalf of Mr. Pittman. This motion was overruled. At the conclusion of all of the evidence, this motion was renewed and again overruled. At that time the Harri-sons also moved for directed verdict in the actions against them, and these motions were overruled.

The ease was put to the jury under proper instructions by the trial judge as to negligence and contributory negligence of all parties, including the passenger, Mrs. Pittman. No exceptions were taken at the time of the instructions, insofar as Mrs. Pittman was concerned.

After deliberating for some time, the jury returned into court and asked for further instructions as to what the effect of negligence on the part of all parties would be. The trial court again instructed the jury, without exceptions from any party, as to the effect of negligence of the drivers and again differentiated the status of a passenger in an automobile.

■ The jury thereupon returned a verdict in which it found all parties guilty of negligence and dismissed all of the actions.

A motion for new trial was filed on behalf of Mrs. Pittman alleging, among other things, that the verdict was contrary to the evidence, and also alleging that the trial judge was in error in giving instructions as to contributory negligence on her part. She also complained of the failure of the trial judge to give an instruction, requested on behalf of her husband, to the effect that his driving an automobile without a valid operator’s license should not be considered as negligence. This assignment will be discussed in a later portion of this opinion.

Insofar as the record before us reveals, no motion for a new trial was made on behalf of Mr. Pittman or on behalf of the Harri-sons. In all events, no appeal was perfected on behalf of any of those parties, so that judgment on the jury verdict, finding both drivers guilty of negligence, became final as to them.

It is important to note at this point that no motion for a directed verdict on behalf of Mrs. Pittman was made at the trial, prior to the submission of the issues to the jury. Indeed the record shows that at the conclusion of all of the evidence, counsel for Mr. and Mrs. Pittman stated:

“We submit that the action in favor of the Harrisons should be dismissed and that the jury should be allowed to consider the cases of the Pittmans, in both cases.”

The issues were submitted to the jury, and, as stated, the jury resolved them against the Pittmans.

In a divided decision, however, the Court of Appeals reversed the jury verdict in the case of Mrs. Pittman, and in effect granted a directed verdict in her favor. The majority opinion stated that the court could find no material evidence of contributory negligence on the part of Mrs. Pittman, and the case was remanded for a new trial as to her, limited to the issue of damages only. There was a dissenting opinion by one member of the court, who felt that issues of fact were presented, which were appropriate for jury determination.

We granted certiorari, and we are of the opinion that the Court of Appeals was in error, in effect, directing a verdict on behalf of the passenger, Mrs. Pittman. There was conflicting testimony in this record, and differing and conflicting inferences could reasonably be drawn therefrom. Viewed most favorably to Mr. Harrison, as this record must be in considering whether Mrs. Pittman is entitled to a directed verdict in her behalf, the jury could reasonably have concluded that Mr. Harrison was swerving to his left to miss the Pittman automobile which was coming through an intersection on a subordinate highway. There is no question but that Mr. Pittman’s car did not strike the Harrison car until Pittman reached the center of the highway. Markings on the highway, testified to by Mr. Harrison’s father, indicated that at least some wheel markings were found in the left lane for travel for Richard Harrison, and Harrison’s automobile ultimately went off the highway to its left. It is thus clearly inferable that the vehicle on the favored highway was moving to its left, attempting to avoid a collision with an automobile which had either entered the intersection without stopping or, having stopped, was proceeding in violation of the rules of the road governing subordinate highways. The jury could further have inferred from Mr. Pittman’s testimony that he was unable to see because of weeds when he reached the intersection of Acorn Gap Road and Oak Grove Road, and that he therefore came on into Oak Grove Road in an effort to see, but that both he and his wife failed to see an automobile which was clearly visible, with its headlights burning, proceeding down the favored highway and moving to its left to avoid striking them. The jury simply did not have to believe the brief testimony of Mrs. Pittman to the effect that her husband stopped, that she looked to her left and to her right and saw nothing, and that there was no time for her to give an outcry or warning. If Mr. Pittman indeed failed to stop, or if he moved out into the highway in an effort to see better, and if she did indeed look, as she testified, a jury could reasonably conclude that she did have an opportunity to give a warning or outcry before her husband crossed Harrison’s right-hand lane and struck him either in the center of the highway or in Harrison’s left-hand lane. While, as stated, both vehicles received severe damage in the impact, reasonable men, viewing the pictures, could clearly conclude that it was the Pittman car which struck the Harrison car in its right-hand side. Nearly all of the damage to the Pittman vehicle is in the center and along the front bumper, while the Harrison vehicle was literally caved in at the corner of the right front fender and along the right-hand.side.

In the course of the majority opinion, the Court of Appeals quoted from the case of Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780 (1949) (in which a passenger recovered from the driver of the car in which she was riding). Responding to a contention that the driver was entitled to a directed verdict, the Court said:

“To apply the clear holding in that case to this, Mrs. Huff could be held guilty of proximate contributory negligence as a matter of law only if it appeared from undisputed evidence that when she became aware, or in the exercise of reasonable diligence should have become aware of Mr. Carman’s failure to stop there was yet time to make an effectual protest.” 32 Tenn.App. at 696-697, 227 S.W.2d at 784 (emphasis added).

On facts similar to those of the present case, the Court of Appeals held that the issue of the contributory negligence of the passenger was properly left to the jury, and that it would have been improper to direct a verdict for the defendant. The Court said:

“We think reasonable men might differ as to the guest’s duties under all the circumstances. 32 Tenn.App. at 698, 227 S.W.2d at 785.

In the present case there was no directed verdict for anyone in the trial court, and all issues were left to the jury under proper and legally correct instructions as to the duties of the various parties.

It is recognized, of course, that a passenger in an automobile does not have the same duties or obligations as the driver. A passenger, however, is not without responsibility for his or her own safety, and in the present case Mrs. Pittman testified that she did look in both directions before the impact. As stated, her husband crossed at least one lane of travel of the favored highway before running into the side of a vehicle which was swerving to its left to miss him, or at least a jury could reasonably so conclude, and during the time when he was stopped and during the time when he was moving out into the highway she said nothing and apparently took no precautions whatever to warn him of a danger which was both imminent and obvious. Despite the fact that the jury found Richard Harrison guilty of negligence, in our opinion there was a jury issue as to whether Mrs. Pittman was or was not also guilty of negligence. We think that a directed verdict for any of the parties in the action would have been improper. As previously stated, no motion for directed verdict was ever made on behalf of Mrs. Pittman. The request of her counsel that her case be put to the jury was granted by the trial court.

We accordingly reverse the judgment of the Court of Appeals and hold that it was in error in remanding the case for a new trial as to Mrs. Pittman, limited to issues of damages only, this being in effect a directed verdict in her favor on the issue of liability.

Inasmuch as the majority opinion in the Court of Appeals did grant a reversal on a single assignment of Mrs. Pittman, to the effect that the trial judge erred in submitting the issue of her contributory negligence to the jury, the Court of Appeals pretermitted her remaining assignments of error. Although not technically complying with the requirements of T.C.A. § 27-823, by separately assigning error in this Court after we granted the petition of the Harri-sons, counsel for Mrs. Pittman have nevertheless stated in their reply brief that they did not intend to waive their remaining assignments of error, pretermitted by the Court of Appeals, and have urged consideration of them here. We deem this a sufficient compliance with T.C.A. § 27-823 to enable us to examine and consider these assignments.

One of these was that the trial judge refused to give an instruction that the jury not consider as evidence of negligence the failure of Mr. Pittman to have a driver’s license. It is stated by counsel that mention of this fact was made in final arguments to the jury. These arguments, however, are not preserved in the bill of exceptions, and we have no way of considering them or of determining whether objectionable comment was or was not made. Evidence that Mr. Pittman’s license had previously been revoked came into the record without objection and without any subsequent motion to strike. There is no evidence as to whether Mrs. Pittman did or did not know about the revoked license.

The tendered instruction, which was declined by the trial judge, was not upon the issue of contributory negligence of Mrs. Pittman. It was apparently made in Mr. Pittman’s case. The instruction was:

“Comes Edgar Pittman by and through his attorney and moves that the Court instruct the jury that his failure to have a driver’s license is no evidence of negligence in this ease and should not be considered by the jury.”

The trial judge carefully instructed the jury that any negligence of Mr. Pittman was not imputable to his wife, and that the jury should consider her case separate and apart from that of her husband. He then correctly and fully instructed the jury as to the duties of a passenger riding in an automobile. Under these circumstances, the failure of the trial judge to give the tendered instruction, in our opinion, was not error, insofar as Mrs. Pittman was concerned.

All of the other assignments of error on behalf of Mrs. Pittman dealt with the preponderance of evidence or with her claim that the trial judge should have directed a verdict in her favor and entered judgment thereon after the jury verdict. There is no indication that the trial judge failed in his duties as thirteenth juror. He apparently concluded that the verdict of the jury was not contrary to the preponderance of the evidence and concurred therein. On appeal any issue as to the preponderance of evidence in a jury case such as this is foreclosed. As to the other assignments, we have already indicated that we do not consider this-a proper case for a directed verdict in favor of Mrs. Pittman.

It accordingly results that the judgment of the Court of Appeals in this case is reversed and the judgment of the trial court, dismissing the suit, is reinstated. All costs on appeal are taxed to respondent.

FONES, C. J., BROCK, J., and HYDER, Special Justice, concur.

HENRY, J., dissents.

HENRY, Justice

(dissenting).

I respectfully dissent.

Linda K. Pittman was what we quaintly call a “guest passenger” riding in an automobile operated by her husband.

It is my understanding of the law that a guest riding in an automobile is not required to use the same care and diligence as the operator but is required to use only that degree of care that an ordinarily prudent person would have observed under the same or similar circumstances, Talley v. Dalton, 10 Tenn.App. 597 (1928); that the law imposes a substantially higher burden upon the driver than is placed upon the passenger, Rogers v. Bouchard, 60 Tenn.App. 555, 449 S.W.2d 431 (1970); that a guest has the right to assume that the driver will exercise proper care and caution until he has notice to the contrary, Chickasaw Wood Products Co. v. Lane, 22 Tenn.App. 596, 125 S.W.2d 164 (1938), and where no previous conduct or events occur to alert the guest to the danger, Smith v. Bullington, 499 S.W.2d 649 (Tenn.Ct.App.1973); and, of course, it is fundamental to our law that the negligence of the driver is not imputed to the passenger.

The majority opinion quotes from Carman v. Huff, 32 Tenn.App. 687, 227 S.W.2d 780 (1949) holding that a passenger could be guilty of contributory negligence as a matter of law only if it appears that she knew or should have known of the danger and there was time to make an effective protest. The next sentence reads as follows:

Until that time she could rely upon the assumption that the driver of the automobile would exercise proper care and caution, the danger not being obvious or known. 227 S.W.2d 784.

When we apply these legal principles to the facts of this case I find no escape from the conclusion that, as a matter of law, the guest was not guilty of contributory negligence.

It is obvious that the jury, after finding both drivers guilty of negligence, visited upon the passenger, Mrs. Pittman, the negligence of her husband. The majority opinion, in my view, falls into the same error.

A clear case of negligence is made out against the driver and an effort is made to show that Mrs. Pittman was also guilty of negligence. But even my esteemed colleague, Justice Harbison, with his recognized ability to marshall facts and present them with clarity, was unable to document negligence upon her part.

The opinion charges her with negligence in failing to see the Harrison automobile, and in failing to make outcry. I find this to be of no significance.

The undisputed proof shows that the driver stopped at the intersection. Whether he did or not, however, is of no significance to the passenger’s suit.

Let us assume that he did not stop. The record shows he was approaching an intersection, and there is absolutely nothing in the record to suggest any conduct on his part which would have caused her to believe that he would not come to a stop. Most assuredly, a wife, riding in an automobile with her husband, is not required to say to her husband, “You are approaching an intersection, you be sure to stop.” If this were required, a cross-town trip would be a nightmare; and many marriages — if not wives — would become casualties of an unreasonable construction of the duty to warn.

Let us assume that he did stop at the intersection, surely the wife is not required to say, “Now, honey, you stay stopped.” The law does not require that wives be “back-seat drivers” to the extent of becoming stop sign naggers.

There is absolutely nothing in this record to put her on notice. Had she seen the approaching automobile, she had the right to assume that her husband would not pull out into its pathway.

But let us assume that, for some undisclosed reason, she should have been on notice. The law requires time for an effective protest. I assume a driver would accelerate from a dead stop at a rate of 10 to 15 miles per hour. At 10 miles per hour a vehicle moves 14.66 feet in one second; at 15 it moves 22 feet in one second. The driver’s reaction time is approximately three fourths of one second. Had the wife realized that her husband would not “stay stopped” and warned him the very instant he started to move, allowing no reaction time on his part, he would not have had time to even apply his brakes. Again, she simply did not have time to make an effective protest.

To validate the majority opinion, we must infer (1) that the driver was guilty of some undisclosed act of negligence in advance of either running the stop sign or not staying stopped, (2) that the passenger knew or should have known of this unknowable danger, and (4) that she had time to protest against the danger.

It is only after pyramiding these unsupported inferences that contributory negligence on the part of Mrs. Pittman can be established. I am unwilling to assume that she knew of the existence of any danger and that she knew or should have known that her husband would drive into the pathway of an oncoming car and that there was reason or opportunity for effective protest.

In my view the Court of Appeals reached the correct conclusion and I would affirm.

      . She testified positively that he stopped; his testimony by inference, is to the same effect. There was not a shred of evidence to the contrary.

      . The driver’s reaction or “thinking” distance is ordinarily about a car length or 15 feet at 20 miles per hour. See Tennessee Driver’s Manual. At 10 miles per hour during the reaction time an automobile would travel approximately 11 feet; at 15 approximately I6V2 feet. Either distance would terminate at or near the point of impact.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    NASHVILLE MEMORIAL HOSPITAL, INC., et al., Appellants, v. George T. BINKLEY, Appellee.
    Supreme Court of Tennessee.
    March 8, 1976.

      Alfred H. Knight, III, William R. Willis, Jr., Nashville, for appellants.
    W. A. Moody, Nashville, for appellee.
   OPINION

BROCK, Justice.

This is an action for damages brought by appellee, George T. Binkley, M.D., a physician practicing surgery in Davidson County, Tennessee, against the appellants, Nashville Memorial Hospital, Inc., a corporation, and seven named individuals alleging that the defendant hospital has, without just cause, refused to grant him suitable staff privileges and that the hospital and the individual defendants have unlawfully conspired to injure him in the practice of his profession thereby inflicting upon him great damages.

The defendants challenged the complaint by a motion to dismiss upon the ground that it failed to state a claim upon which relief could be granted. The trial court overruled the motion to dismiss and, pursuant to T.C.A. § 27-305, granted a discretionary appeal to this Court. We proceed to determine whether or not the complaint alleges any recognized theory of recovery against the defendants.

As we construe the complaint, it may be considered to contain two theories, viz., (1) that the defendant hospital in withholding staff privileges from the plaintiff is acting arbitrarily, capriciously and without any just cause and that in so doing the hospital is violating a duty owed to the plaintiff, the hospital having lost its status as a “private” hospital by reason of its acceptance of Federal Hill-Burton Act funds, so that, it is not immune from judicial scrutiny of the reasonableness of its decisions with respect to staff privileges, and (2) that the hospital and the individual defendants have conspired unlawfully to injure plaintiff in the practice of his profession and pursuant to said conspiracy have deprived him of staff privileges at the hospital, thereby causing him great damage.

Whether or not a physician has a right to practice in a hospital depends upon whether the hospital be a public one, that is, an instrumentality of the state, founded and owned in the public interest, supported by public funds, and governed by those deriving their authority from the state, or is a private one founded and maintained by private persons, or a corporation, and which is not managed or controlled by the state or any of its subdivisions. It is the general rule that a duly licensed physician or surgeon has a right to practice his profession in the public hospitals of the state so long as he stays within the laws and conforms to all reasonable rules and regulations of the institutions adopted for the government thereof, and he cannot be deprived of that right by rules, regulations, or actions of the hospital’s governing authorities that are unreasonable, arbitrary, capricious, or discriminatory. Henderson v. City of Knoxville, 157 Tenn. 477, 9 S.W.2d 697, 60 A.L.R. 652 (1928); 40 Am.Jur.2d 857, Hospitals and Asylums, § 10. On the other hand, it is generally held that private hospitals, have the right to exclude licensed physicians and surgeons from the use of the hospital for any cause deemed sufficient by its managing authorities. Henderson v. City of Knoxville, supra; Edson v. Griffin Hospital, 21 Conn.Sup. 55, 144 A.2d 341 (1958). See also cases at 24 A.L.R.2d 852, § 2. In two jurisdictions, it has been held that even private hospitals may not arbitrarily, capriciously, and unreasonably withhold staff privileges from a duly licensed physician or surgeon. Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963); Woodard v. Porter Hospital, Inc., 125 Yt. 419, 217 A.2d 37 (1966).

The appellee recognizes the rule as stated with respect to private hospitals and urges that the defendant hospital should be subjected to the rule stated with regard to public hospitals by reason of the fact that it has accepted funds under the Hill-Burton Hospital Construction Act, relying upon Eaton v. Grubbs, 4 Cir., 329 F.2d 710 (1964); Simkins v. Moses H. Cone Memorial Hospital, 4 Cir., 323 F.2d 959 (1963). In our opinion, the authorities cited do not support the position of the appellee. Both cases are distinguishable from the case at bar since in each the hospital in question practiced discrimination based upon race which is not involved here. In the Eaton case, the hospital could not be considered to be private since it had been donated by a city and a county to a self-perpetuating board of directors with ongoing public financial support and was subject to a right of reverter to the state in the event the property ceased being used as a hospital, facts which clearly distinguish that case from the one at bar. In the Simkins case, not only was the hospital the recipient of Federal funds but it was also exempt from taxation, possessed the power of eminent domain, used student nurse interns from two state supported colleges, and some of its trustees were appointed by the state, facts which clearly distinguish it from the case at bar.

We find nothing in the Hill-Burton Act undertaking to create any power of control or supervision over hospital affairs. In fact, the intent to do so is expressly disclaimed. Hoberman v. Lock Haven Hospital, 377 P.Supp. 1178 (M.D.Pa.1974).

We are of the opinion that the mere receipt of Federal funds under the Hill-Burton Act does not deprive an otherwise private hospital of the right to grant or withhold staff privileges as it sees fit, at least where the matter of racial discrimination is not involved. Woodard v. Porter Hospital, Inc., supra; Edson v. Griffin Hospital, supra. See also Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973). Therefore, we conclude that the complaint fails to state a cause of action for wrongful withholding of staff privileges by the defendant hospital.

Nevertheless, we are of the opinion that the trial court was correct in overruling the motion to dismiss; the complaint does state a cause of action against all of the defendants for engaging in and executing an alleged conspiracy to injure the plaintiff in the practice of his profession. Thus, the complaint alleges:

“2. The plaintiff would further show that the defendant hospital together with the individual defendants conspired without justifiable cause to terminate his surgical privileges, knowingly making it impossible for him to practice his surgical speciality, and not only was such action arbitrary and capricious but was a concerted effort on the part of the individual defendants to deprive the plaintiff of his patients for their own profit and was further directed toward depriving the plaintiff of the right to practice his surgical speciality for the personal reasons of the individual defendants acting in concert and individually and that the actions of the individual defendants and the corporate defendant did in fact result in the loss of the plaintiff’s right to practice his surgical speciality and in severe and permanent loss of income. .
“4. The plaintiff therefore alleges and avers that the action of the defendant hospital which resulted in termination of the plaintiff’s surgical privileges was unreasonable, arbitrary, capricious and without merit and that the actions of the individual defendants acting individually or on behalf of the defendant hospital in participating in the acts leading up to the final termination of surgical privileges of the plaintiff was the result of a concerted action of the individual defendants to terminate the plaintiff’s surgical privileges without cause and for their individual and collective personal gain to the damage of the plaintiff, for which the defendants are liable individually and severally and refuse to pay.”

Everyone has the right to establish and conduct a lawful business or engage in a lawful profession, and is entitled to the protection of organized society, through its courts, whenever that right is unlawfully invaded. An actionable wrong is established against anyone who is shown to have intentionally interfered with that right, without justifiable cause or excuse. It is, therefore, an actionable wrong for two or more persons to conspire maliciously and without justification or excuse to injure or damage another in the conduct of a lawful business or profession. Furthermore, it is not necessary to expressly allege malice so long as it is alleged that the damage was done by the defendants intentionally and without legal justification, for malice is inferred from such allegations. Hutton v. Watters, 132 Tenn. 527 (1915); Stein v. Schmitz, 21 N.J.Mise. 218, 32 A.2d 844 (1943), Affirmed 137 N.J.L. 725, 61 A.2d 260 (1948); Cowan v. Gibson, 392 S.W.2d 307 (Mo.1965); 15A C.J.S. Conspiracy § 10(1), p. 617; 16 Am.Jur.2d 154, Conspiracy, § 53.

Accordingly, we affirm the judgment of the trial court and remand the cause to that court for further proceedings consistent with this opinion. Costs incurred in this Court will be borne by the appellants.

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

      . “Except as otherwise specifically provided, nothing in this subchapter shall be construed as conferring on any Federal officer or employee the right to exercise any supervision or control over the administration, personnel, maintenance, or operation of any facility with respect to which any funds have been or may be expended under this subchapter.” 42 U.S.C.A. § 291m.


author: DUNCAN, Judge.

text:
    Carl Dean HUDSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 7, 1975.

      Edward F. Hurd, Newport, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevier-ville, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The defendant, Carl Dean Hudson, Jr., was convicted in the Cocke County Criminal Court of “Assault with Intent to Commit Rape.” The jury set the defendant’s punishment at a determinate sentence of fifteen (15) years in the penitentiary. At the time of the hearing of the defendant’s motion for a new trial, the trial judge concluded that the offense was punishable by an indeterminate sentence; accordingly, he fixed the minimum sentence at six (6) years in the penitentiary. Thus, the court’s judgment provided that the defendant be committed to the penitentiary for a period of not less than six (6) years nor more than fifteen (15) years. The defendant has appealed his conviction and sentence to this Court.

The case is before us on the Technical Record, with no Bill of Exceptions having been filed. In the absence of a Bill of Exceptions, there is a presumption that the evidence abundantly supports the verdict of the jury. Clark v. State, 214 Tenn. 555, 381 S.W.2d 898 (1964).

In his only assignment of error, the defendant contends that “The court’erred in modifying the verdict of the jury in this case by fixing the minimum sentence of the defendant at six years instead of three years as provided by statute.”

The State concedes in its brief that error is present and submits the case without recommendation.

The defendant was indicted for the offense of rape. T.C.A. § 39-3701. An indictment for rape embraces the lesser included offenses of assault and battery with intent to commit rape (T.C.A. § 39-605), assault with intent to commit a felony (T.C.A. § 39-603), and assault and battery, a misdemeanor. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224 (1962). Thus, one put to trial on a charge of rape may be convicted at that crime or one of its lesser included offenses, depending on the facts of the case.

In this case, the jury reported its verdict as follows:

“We the Jury find the Defendant Guilty of Assault with Intent to Commit Rape and fix his punishment at a determinate period of (15) fifteen years in the State Penitentiary.”

The trial judge’s charge to the jury is not contained in the record; however, we find sufficient information contained in the trial court’s order overruling the defendant’s motion for a new trial to answer the questions involved herein. We find it unnecessary to go into detail regarding the difficulties which the trial judge encountered in his charge on the punishment for the offense of assault and battery with intent to commit rape, since the jury did not find the defendant guilty of this offense. The jury, instead, found the defendant guilty of “Assault with Intent to Commit Rape,” which is a violation of T.C.A. § 39-603 (assault with intent to commit a felony). Suffice it to say that the offense of assault and battery with intent to commit rape is punishable by an indeterminate sentence of not less than three (3) years nor more than twenty-one (21) years in the penitentiary. We would state that even if the defendant had been found guilty of this latter named offense, the jury would not have been authorized by law to set a determinate sentence of fifteen (15) years.

A further complicating aspect of the problem was the trial judge’s attempt to correct the jury’s error by taking it upon himself to fix the minimum sentence at six (6) years. Where an offense is punishable by an indeterminate sentence, the prerogative for setting both the maximum and minimum terms of that sentence is vested exclusively in the jury. T.C.A. § 40-2707.

We make the above statements solely for the purpose of clarity, because the trial judge erroneously assumed that the defendant had been found guilty of assault and battery with intent to commit rape (T.C.A. § 39-605). Likewise, in their briefs, both the State’s counsel and the defendant’s counsel make the same erroneous assumption.

As heretofore set forth, the defendant was found guilty of “Assault with Intent to Commit Rape.” This is a conviction under the provisions of T.C.A. § 39-603, which Section provides:

“If any person assault another, with intent to commit, or otherwise attempt to commit, any felony or crime punishable by imprisonment in the penitentiary, where the punishment is not otherwise prescribed, he shall, on conviction, be punished by imprisonment in the penitentiary not exceeding five (5) years, or, in the discretion of the jury, by imprisonment in the county workhouse or jail not more than one (1) year, and by fine not exceeding five hundred dollars ($500).”

For a conviction to be sustainable under T.C.A. § 39-605, it is essential, in addition to the other elements, that an “assault” and “battery” (emphasis added) be present. Under T.C.A. § 39-603, however, the violation can occur by merely an “assault” with intent to commit a felony or by “otherwise” attempting to commit any felony-

The instant case is virtually identical to the factual situation presented in Bowmer v. State, 157 Tenn. 124, 128-29, 6 S.W.2d 326, 327 (1928). In Bowmer, the defendant was indicted for rape, and the judge charged the jury that the indictment included the offense of assault and battery with intent to commit rape under § 6459 of the Shannon’s Code (now T.C.A. § 39-605). The jury returned a verdict finding the defendant guilty of “Attempt to Commit Rape.”

The Bowmer court, in reversing the conviction, said:

“We have no Statute that authorizes imprisonment of [ten] 10 years for ‘attempt to commit rape.’ For the felony of attempt to commit rape, or any other felony, the punishment is prescribed by section 6471 of Shannon’s Code (now T.C.A. § 39-603), at confinement in the penitentiary not less than [one] 1 nor more than [five] 5 years.
“A battery is an essential element of the assault and battery with intent to commit rape under section 6459 (now T.C.A. § 39-605) and the conviction is not authorized unless the indictment charge, and the jury find, that a battery attended the attempt. Neilson v. State, 103 Tenn. 87, 52 S.W. 869. But the battery is not required to sustain a conviction for attempt to commit a felony under section 6471 of Shannon’s Code (now T.C.A. § 39-603)

Also in point is Jamison v. State, 220 Tenn. 280, 285, 416 S.W.2d 768, 770 (1967). In Jamison, the defendant was indicted under T.C.A. § 39-605 for assault and battery with intent to commit rape. The jury found the defendant guilty of “Assault with Intent to Ravish.” The word “ravish” was simply an ill-chosen word which did not appear to trouble the Supreme Court.

While the case was reversed because of the setting of improper punishment, the Court did construe this as a proper conviction for an assault with intent to commit a felony under T.C.A. § 39-603. The Court said:

“A verdict of an assault with intent to rape does not include a finding of guilt by the jury of an assault and battery with intent to commit rape.”

Thus, the jury verdict in the case, sub judice, found the defendant guilty of “Assault with Intent to Commit Rape,” an offense for which he was subject to be punished by confinement in the penitentiary for not less than one (1) year nor more than five (5) years, or in the discretion of the jury, by a jail or workhouse sentence of not more than one (1) year and a fine not exceeding five hundred dollars ($500). The verdict affixing the defendant’s punishment at fifteen (15) years imprisonment in the penitentiary, and the judgment thereon assessing his punishment at a penitentiary sentence of not less than six (6) years nor more than fifteen (15) years were not authorized by the statute.

Since the jury did not find the defendant guilty of the offense to which the punishment fixed applied, we have no alternative but to remand the case for a new trial. Jamison v. State, supra. We note, however, that the defendant has not filed a Bill of Exceptions; therefore, his guilt of assault with intent to commit rape is presumed. Clark v. State, supra. The verdict as to his guilt of this offense is valid, but the cause must be remanded for a new trial on the issue of punishment only. The jury shall set the defendant’s punishment in accordance with the provisions of T.C.A. §§ 39-603 and 40-2707. See Huffman v. State, 200 Tenn. 487, 292 S.W.2d 738 (1956); Beaver v. State, Tenn.Cr.App., 475 S.W.2d 557 (1971).

For the reasons stated, we conditionally vacate that portion of the judgment relating to punishment, and remand the case to the trial court for a new trial by a new jury on the issue of punishment only.

WALKER, P. J., and GALBREATH, J., concur.

      . The correct name of the cited case is Wilson'v. State, not Neilson v. State.


author: DWYER, Judge.

text:
    Ronnie GARRETT, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Dec. 16, 1975.
    Certiorari Denied by Supreme Court Feb. 2, 1976.

      Lawrence P. Leibowitz, Knoxville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for respondent.
   DWYER, Judge.

OPINION

This appeal flows from the dismissal of the petition for post-conviction relief without appointment of counsel and without an evidentiary hearing. The petition as filed reflects its draftsman to be a fellow inmate of the petitioner.

The petition contends that the petitioner’s convictions for committing the offense of grand larceny in two cases with resulting punishment of confinement for not less than nor more than five years are invalid because of constitutional abridgments of his rights.

The alleged constitutional abridgments as stated in the petition are:

1. He was maliciously, arbitrarily and with aforethought to do same, denied a speedy trial.

2. He was extradited from the State of Michigan to the State of Tennessee on false pretenses, and maliciously prosecuted on two invalid warrants and indictments.

3. He was convicted on the testimony of a state witness who testified only to an unrelated charge which was still pending in court.

The state filed a response and answer, see T.C.A. 40-3814, to the petition which was accompanied by the minute entries, orders, and transcript pertinent to the petitioner’s conviction.

The trial court, in dismissing the petition, filed a final order incorporating his finding of fact and law, see T.C.A. 40-3818.

A brief has been filed in this court by the draftsman of the petition and that brief has been incorporated as the brief for counsel who was appointed by this court to perfect petitioner’s appeal.

The contentions presented to this court on appeal are these:

1. There was error in the failure of the trial court to appoint counsel and conduct an evidentiary hearing to consider the issues raised in the petition for post-conviction relief.

2. There was error in the court ruling that the allegation of denial of speedy trial was without merit.

The facts which were before the trial court, (i. e. minute entries, transcripts and petition of the petitioner) reflect: (1) true bill indictment returned by the McMinn County Grand Jury, in two counts of grand larceny against petitioner on November 27, 1972; (2) that petitioner was on bond prior to the indictments being returned; (3) that petitioner was arrested in the State of Michigan on September 5, 1972, and as a result was convicted for committing the offense of burglary with punishment of confinement in that state for not more than four years; he was placed on parole on November 22,1973, in that state after serving fourteen months; (4) he was returned to Tennessee and found guilty in case No. 3808 after a jury trial on April 14,1974; (5) he entered a guilty plea in the companion case No. 3806 on April 19, 1974, and was sentenced to not more than five years to be served concurrently with No. 3808; (6) his motion for new trial in No. 3806 was set for argument on June 15, 1974, and overruled when the trial court found petitioner had escaped.

While we agree with the state’s argument that petitioner’s own misdeeds brought about much of the delay of trial, we think the state is, nonetheless, under a positive duty to speedily try an accused, see Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 2262, 37 L.Ed.2d 56 (1973); also see Arrowsmith v. State, 131 Tenn. 480,175 S.W. 545.

As to the petitioner’s contention, however, if he had a viable speedy trial contention, it should have been argued prior to his trial, and in the event of an adverse ruling, preserved and argued on appeal. This he did not do. Thus, he has waived, we think, his speedy trial issue, see Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235. Moreover, the minute entries reflect that he escaped before his motion for new trial was overruled. Therefore, he forfeited his right to appeal, see Bradford v. State, 184 Tenn. 694, 202 S.W.2d 647, and a determination of this question on that appeal if it had been timely advanced. Hence, he waived this question for post-conviction relief purposes, see Arthur v. State, Tenn., 483 S.W.2d 95, 97 (1972).

With the petitioner intelligently and knowingly pleading guilty in No. 3806 on April 19, 1974, he waived all non-jurisdictional defects, see Little v. State, 4 Tenn. Cr.App. 175,176, 469 S.W.2d 537. The trial court, in reviewing this petition, had a right to review all prior proceedings in the record, see Gant v. State, Tenn.Cr.App., 507 S.W.2d 133,137 (1974). We find no error in the trial court’s finding no merit in this speedy trial assertion.

. The assertion that petitioner was wrongfully returned to this jurisdiction would accord no voiding of his conviction, if true, see Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; Tartar v. State, 2 Tenn.Cas. (Shannon) 418 (1877). His assertion as to the insufficiency of the state’s witness testimony is a matter for appeal and not for post-conviction proceedings, see Gant v. State, supra.

We find no error in the trial court’s dismissal of the petition without appointment of counsel, see Crumley v. Tollett, 4 Tenn.Cr.App. 495, 497, 474 S.W.2d 148. Indeed, we think, under the quoted authorities found in that opinion, there is no duty to either appoint counsel or hold a preliminary hearing, if, after the petition undergoes initial judicial evaluation the court determines that there are no issues presented calling for an evidentiary hearing. While the speedy trial issue commences the judicial juices to flow, the assertion of that right does not, per se, entitle the petitioner to counsel nor entitle him to a. hearing.

The records, which were before the trial court, reflect that counsel represented the petitioner at trial, at his guilty plea and waiver of jury trial in case No. 3806, and that all of his rights were explained to him and understood by petitioner. In short, the records before the trial court were not silent as to waiver of his constitutional rights in that case.

While it is true less stringent standards are applicable to petitions drafted by laymen, see Baxter v. Bose, Tenn., 523 S.W.2d 930, 939, we do not think that fact alone commands appointment of counsel or precludes the trial court from dismissing without a hearing in the absence of facts to support his allegation. We think that Baxter v. Bose, supra, teaches that to dismiss under these circumstances, there must be no doubt that the petition is void of facts to support a constitutional abridgment. We are satisfied that standard has been observed in this record.

The judgment of the trial court is affirmed.

RUSSELL and O’BRIEN, JJ., concur.


author: REAVLEY, Justice.

text:
    Katherine Marie REESE, Relator, v. Honorable James A. PIPERI, Judge, et al., Respondents.
    No. B-5677.
    Supreme Court of Texas.
    March 3, 1976.
    Shirley, Chilton & Shirley, Douglas H. Chilton, Texas City, for relator.
    Simpson, Morgan & Burwell, Inc., Susan W. Burris, Texas City, James A. Piperi, Galveston, for respondents.
   REAVLEY, Justice.

Katherine Marie Reese seeks by this original proceeding to obtain issuance of a writ of mandamus to compel Honorable James A. Piperi, Judge of the Domestic Relations Court of Galveston County, to vacate an order purporting to grant a new trial in Cause No. 18,035 in that court. That cause is a divorce case originally filed by Katherine Marie Reese against Tony James Reese in November of 1974. The following events and dates are important:

On May 16, 1975 a default judgment was granted in favor of Katherine Reese.
On May 23, 1975 Tony Reese filed a motion for new trial, alleging that he had failed to appear in the cause for the reason that his wife had told him that it had been dismissed.
On June 25,1975 a hearing was held on the motion for new trial at which time the trial judge announced his intention to grant the new trial on June 30 if the two parties were not able to resolve their differences by that time.
Nothing further happened until September 5, 1975 when the trial judge signed an order granting the motion for new trial.

Relator contends that the motion for new trial was overruled by operation of law on July 7, that date being 45 days after May 23 when the motion was filed. It would follow that the trial court had lost its jurisdiction before September 5 and that the judgment of May 16 is final. Relator’s position is well taken.

Rule 329b(3) of the Texas Rules of Civil Procedure provides:

All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. .

In the present case there has been no written agreement of the parties postponing the decision to a date certain. Therefore Rule 329b(4) is operative and “such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date.”

If the motion for new trial was overruled by operation of law on July 7, the judgment became final 30 days thereafter and could not be set aside by the trial court except by bill of review. Rule 329b(5).

The contention of the respondent is that there was an oral rendition on June 25 which did grant the motion for new trial and which the trial court should now be allowed to enter nunc pro tunc (if we are not willing to consider this to be the nature of the order of September 5). We cannot accept this view of the matter for two reasons. In the first place there was no rendition on June 25. The following statements were made by the judge at the close of the hearing:

THE COURT: You may step aside little lady. Now, Mr. Reese, again I’ll tell you by law, I have to grant a new trial. There’s no way I can get out of it. I will grant it. I will take this case under advisement. I expect to hear from you lawyers Monday at noon. If you don’t resolve it, I will grant a new trial. The cause will be taken under advisement until Monday which is the 30th.
MR. CHILTON: Did you set a definite time, Your Honor?
THE COURT: No, I’m not going to have a hearing. You let me know if you have worked out anything or not. If not, I will grant a new trial and set the case down for hearing. The case will be taken under advisement until Monday, June 30th, 1975 by 11:45 A.M. Thank you very much.

The trial judge makes his intention known. If the parties do not “work out anything,” he will grant a new trial. The judge’s intention to render judgment in the future cannot be a present rendition of judgment. The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made. The opportunities for error and confusion may be minimized if judgments will be rendered only in writing and signed by the trial judge after careful examination. Oral rendition is proper under the present rules, but orderly administration requires that form of rendition to be in and by spoken words, not in mere cognition, and to have effect only insofar as those words state the pronouncement to be a present rendition of judgment.

If it were proper for Judge Piperi to enter a nunc pro tunc judgment in the Reese case on September 5, that entry could only reflect the prior judgment or order that was actually rendered. No such actual rendition is shown by the record.

Under our view of the rules there is a further problem. If an oral pronouncement by the court were to satisfy the requirements of Rule 329b(4) and if this rendition could be entered months later in the form of a nunc pro tunc order, the trial judge could extend the time for final disposition of the motion for new trial far beyond the period prescribed by Rule 329b — despite the express language of Rule 5 that the court “may not enlarge the period for taking any action under the rules relating to new trials . except as stated in the rules relating thereto or the period for taking an appeal or writ of error from the trial court to any higher court . . . except as stated in the rules relating thereto. . .”

Rule 306a provides that for purposes of determining the time in which various steps of an appeal must be taken, the date .of rendition of an order is that date “upon which the written draft thereof was signed by the trial judge as stated therein.” It is an order of that nature — that is, a written and signed order which effectively measures time for the appellate steps — to which Rule 329b(4) refers when it provides that a motion for new trial will be overruled by operation of law 45 days after the same is filed, “unless disposed of by an order rendered on or before said date.” Washington v. Golden State Mutual Life Ins. Co., 405 S.W.2d 856 (Tex.Civ.App.1966, writ ref’d, 408 S.W.2d 227, Tex.1966); see Texas Employers’ Ins. Ass’n v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961). Absent a written agreement postponing the decision to a date certain, an order must be in writing and signed by the 45th day. This gives effect to the requirements of the rule and of the cases that the motion must be determined within 45 days. See Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961). The holding of Travelers Express Co., Inc. v. Rener, 493 S.W.2d 549 (Tex.Civ.App.1973, no writ) is disapproved.

This is not to say that the trial judge may not grant a new trial during the 30 days following the overruling of the motion of the party who sought a new trial. Rule 329b(5) gives the trial judge that prerogative prior to the judgment becoming final. The September 5 order in the present case, however, came long after the judgment had become final.

We assume that Judge Piperi will vacate his order of September 5, 1975, and a writ of mandamus will issue only if he should fail to do so.


author: GREEN, Commissioner.

text:
    William Michael HERRINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 51403.
    Court of Criminal Appeals of Texas.
    March 17, 1976.
    Rehearing Denied April 7, 1976.

      Nathan P. Hoffman, Victoria, for appellant. ■
    Robert J. Seerden, Dist. Atty. and Knute L. Dietze, Asst. Dist. Atty., Victoria, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from an order revoking probation.

On January 15, 1975, appellant was convicted of burglary of a building. Punishment was assessed at six years and a fine of $500.00, probated. The order of probation contained, among others, the following terms and conditions:

“9. Not change place of residence without prior approval of the Victoria County Probation Officer;
“13. Report as directed by Probation Officer, at least once a month;
“14. Pay into Victoria County the sum of $10.00 per month each and every month during the term of this probation, with payments made to the probation officer;
“15. The defendant shall pay restitution in the amount of $24.00;
“16. Pay $100.00 for cost of attorney appointed to represent him in this cause. This amount to be paid at no less than $50 per month beginning on February 15, 1975.
“17. The $500.00 fine is to be paid at no less than $50.00 per month beginning on February 15, 1975.”

The record reflects that a copy of this order was timely delivered to appellant, and explained to him by his probation officer.

On May 6, 1975, the State filed a motion to revoke appellant’s probation, alleging as grounds therefor the following:

“(9) Probationer has moved to California without prior approval of the Victoria County Probationer Officer; (13) Probationer was instructed on January 15, 1975 to report to the Probation Office weekly as he was unemployed and had no place of residence but Probationer failed to report until February 17, 1975; (14) Since receiving probation, Probationer has failed to pay his supervisory feel (sic) and presently owes $30.00; (15) Probationer has failed to pay the restitution that he was ordered to pay; (16) Probationer has failed to pay for the cost of attorney appointed to represent him; amount owed: $100.00; (17) Probationer has failed to make the monthly payments toward paying his fine; monthly payments: $50.00.”

At the hearing on the motion, the only witness was David Dennison of the probation office of Victoria County, who was assigned as appellant’s probation officer. Testifying from his own personal records, the sum total of Dennison’s testimony of the alleged violations of probation was as follows:

“Q Okay. Now, please tell the Court the conditions and — that he has violated.
“A All right. Rule Number 9. He moved without prior approval of the Victoria County Probation Department. Rule Number 13, he failed to report as directed by the probation officer at least once per month. Number 14, that he failed to pay supervisory fee to Victoria County in the amount of $10 per month each and every month. Number 15, that he — he failed to pay restitution as ordered in the amount of $24. Number 16, he’s failed to pay $100 for court appointed attorney to represent him. And Number 17, that he failed to pay a $500 fine in the amount of $50 per month.
“Q Okay. Now, on the fine, Mr. Denni-son, how was that fine payable?”
“A That fine was to be paid at $50. per month beginning February the 15th, 1975.
“Q Has he made any of the monthly payments whatsoever?
“A No, sir. As best I can tell from the notes he has made no payments.
“Q Okay. Now, Mr. Dennison, did you ever give Mr. Herrington permission to leave the State of Texas for any reason?
“A No, sir. I did not.”

No other evidence of violations was offered. Appellant did not cross-examine Dennison, and offered no evidence.

The trial court, at appellant’s request, filed written findings to the effect that appellant had violated conditions 9, 13, 14, 15, 16, and 17 of the order of probation, supra.

Appellant in a number of grounds of error contends that due to insufficiency of the evidence the court abused its discretion in revoking probation.

We first consider the court’s findings that appellant failed to pay supervisory fees (condition 14), restitution (condition 15), attorney’s fees (condition 16) and monthly payments of his fine (condition 17). There was no evidence offered concerning appellant’s ability to make such payments, or that his failure to pay was intentional.

We quote as follows from our opinion in Hardison v. State, Tex.Cr.App., 450 S.W.2d 638:

“Where probationary conditions relate to the payment of restitution and court costs there must be a showing at the revocation hearing of the probationer’s ability to make the payments required and that the failure to make the restitution was intentional, McKnight v. State, Tex.Cr.App., 409 S.W.2d 858, and the failure to pay court costs was willful. Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422; Campbell v. State, Tex.Cr.App., 420 S.W.2d 715; Cox v. State, Tex.Cr.App., 445 S.W.2d 200 (concurring opinion). We know of no reason why these requirements should not likewise apply to the payment of the supervisory or service fee authorized by Section 6a of Article 42.12, Vernon’s Ann.C.C.P., as amended 1967.”

See also Szczeck v. State, Tex.Cr.App., 490 S.W.2d 576; Kuenstler v. State, Tex.Cr. App., 486 S.W.2d 367; Pool v. State, Tex.Cr. App., 471 S.W.2d 863.

In the absence of a showing of appellant’s ability to make the payments required, and that his failure was intentional, the court abused its discretion in revoking probation based on failure to make the required payments.

We next consider the sufficiency of- the evidence to support the court’s findings that appellant moved without prior approval of the Victoria Probation Department, and that he failed to report as directed by his probation officer at least once per month.

The only evidence supporting the “moving” finding was the statement of the witness: “Rule No. 9. He moved without prior approval of the Victoria County Probation Department.” This statement was made to support the allegation in the motion to revoke that: “Probationer has moved to California without prior approval of the Victoria County Probationer Officer.” Although the sole witness at the trial testified that he did not give permission for appellant to leave the State of Texas, there is not one word of evidence that appellant left the State, or that he moved to California. Condition (9) of the probation order provided that the probationer should not “change his place of residence without prior approval of the Victoria County Probation Officer.” The bare statement that appellant moved without such prior approval without further details or explanation is not sufficient to prove that he violated the condition that he should not change his residence without such approval. See Whitney v. State, Tex.Cr.App., 472 S.W.2d 524. Cf. Winters v. State, Tex.Cr.App., 486 S.W.2d 322. Neither is it sufficient to meet the allegation in the State’s motion that appellant moved to California. See Whitney, supra; Franks v. State, Tex.Cr.App., 516 S.W.2d 185; Ford v. State, Tex.Cr.App., 488 S.W.2d 793. The State failed to meet its burden to prove the violation of the condition alleged in its motion.

Condition No. 13, supra, required appellant to report as directed by the probation officer at least once a month. The State, in its motion, alleged that “Probationer was instructed on January 15, 1975, to report to the Probation Office weekly as he was unemployed and had no place of residence but Probationer failed to report until February 17, 1975.” The only evidence in support of this allegation was the statement of the probation officer that “he failed to report as directed by the probation officer at least once per month.” The court found that “Defendant failed to report as directed by his probation officer at least once per month.”

The order of the court requiring the probationer to report as directed by the probation officer at least once a month sufficiently required appellant to report not less than once per month. Carter v. State, Tex.Cr.App., 482 S.W.2d 875; Cox v. State, Tex.Cr.App., 445 S.W.2d 200, concurring opinion. However, it did not delegate authority to the probation officer to require weekly reports, and any such instructions given by the officer were beyond his legal authority and of no force. Parsons v. State, Tex.Cr.App., 513 S.W.2d 554; DeLeon v. State, Tex.Cr.App., 466 S.W.2d 573; Campbell v. State, Tex.Cr.App., 420 S.W.2d 715.

The State’s motion did not allege a violation of the court’s order that appellant report not less than once a month. The order was entered January 15, and the motion alleges, in substance, that appellant reported February 17. The order of probation and the evidence are silent as to the dates of the month appellant should report. There is no evidence of the months he failed to report. The bare conclusory statement of the witness “He failed to report as directed by the probation officer at least once per month” in the absence of further facts concerning such failure is too vague, indefinite and ambiguous to reflect that appellant failed to report as directed by the court.

We conclude that the court abused its discretion in revoking probation. See Sca-mardo v. State, Tex.Cr.App., 517 S.W.2d 293.

The order is reversed and the cause is remanded.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Reynaldo G. RODRIQUEZ and Francisco L. Ramirez, Appellants, v. The STATE of Texas, Appellee.
    No. 51049.
    Court of Criminal Appeals of Texas.
    March 24, 1976.
    Roberto J. Yzaguirre and Knox R. Jones, McAllen, for appellants.
    Oscar B. Mclnnis, Dist. Atty., Juan Manuel Ramirez, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The appellants entered pleas of not guilty before the court after waiving a jury to the offense of possession of marihuana. The court found them guilty and assessed punishment at three years and a fine of five hundred dollars for each appellant. Imposition of the sentences was suspended and probation granted. This appeal is taken from those convictions.

The sole ground of error, asserted on behalf of both appellants, is that the evidence, all of which was stipulated, was insufficient to show they exercised care, custody, control, or management over, and had knowledge of the contraband requisite to support a conviction for possession of marihuana.

We need not consider those contentions. Fundamental error accompanied the admission of the stipulated evidence and, upon the authority of Hughes v. State, 533 S.W.2d 824 (1976), the judgments must be reversed because of such error.

Article 1.15, V.A.C.C.P., provides as follows:

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such ease consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”

A careful reading of the statute reveals that although the stipulated evidence may be either oral or written, the agreement to stipulate and the concomitant waiver must be executed in writing. The statute is mandatory. Elder v. State, Tex. Cr.App., 462 S.W.2d 6. Violation of its mandatory provisions constitutes reversible error, even if the matter was not raised in the trial court or upon appeal. Hughes v. State, supra.

In the instant ease, all the evidence consisted of written police reports that were orally stipulated. Although written waivers of the right of trial by jury were properly executed in accordance with Arts. 1.13 and 1.14, V.A.C.C.P., the record reflects no written waiver of the appellant’s right to the appearance, confrontation, and cross-examination of witnesses. Thus, no evidence of guilt was introduced at trial that we may properly consider. Accordingly, the judgments must be reversed. Hughes v. State, supra.

The judgments are reversed and the cause is remanded.


author: DAVIS, Commissioner.

text:
    Rickey Lynn DOWDY, Appellant, v. The STATE of Texas, Appellee.
    No. 51542.
    Court of Criminal Appeals of Texas.
    March 24, 1976.

      Michael J. Rogers, Cleburne, for appellant.
    Oran Smith, Jr., Dist. Atty., Cleburne, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

Appellant entered a plea of guilty before the court to the offense of theft of property over the value of two hundred dollars on January 9, 1975. Punishment was assessed at three years probated.

The State filed a motion to revoke appellant’s probation on March 4, 1975, alleging that appellant had violated the terms and conditions of his probation in that on or about February 21, 1975, and during the period of such probation, appellant

“(1) did then and there, with intent to commit theft, break and enter a vehicle without the effective consent of Steve Moore, the owner, AGAINST THE PEACE AND DIGNITY OF THE STATE.
(2) did then and there, with intent to commit theft, break and enter a vehicle without the effective consent of Jimmy Hamilton, the owner, AGAINST THE PEACE AND DIGNITY OF THE STATE.
(3) did then and there, with intent to commit theft, break and enter a vehicle without the effective consent of Douglas Moore, the owner, AGAINST THE PEACE AND DIGNITY OF THE STATE.”

The record reflects that after a hearing on April 15, 1975, the court entered an order revoking appellant’s probation, the court finding “that the State has satisfactorily established the grounds that were alleged in the motion . . . .”

Appellant contends that the court abused its discretion in revoking his probation in that State’s Exhibits 1 and 2, confessions of appellant, were fruits of an illegal arrest and inadmissible. Appellant urges that without such exhibits the evidence was insufficient to support a finding that a condition of probation had been violated.

Appellant admits that he “was given his constitutional warnings before he made each of the statements,” but urges “that since the arrest itself was illegal, all evidence obtained from that arrest is null and void ‘ab initio.’ ”

The record reflects that appellant’s probation officer, Ralph Garret, and officer Charles Davis went to appellant’s house between 10:00 and 10:30 a. m. on February 26, 1975. Garret asked appellant to accompany him and Davis to the Cleburne police station where a Detective Hudson wanted to talk to him. Upon arrival at the police station, it was determined that there were “three or four” other suspects being questioned about “ten or fifteen theft cases” of “tape decks and tape players.” Officer Davis testified that soon after arrival at the police station “around eleven” he was told by Detective Hudson to place appellant under arrest. The first of the two statements was taken at 1:20 p. m. that day by Hudson, who stated that appellant made same “voluntarily” and “willingly” without “any duress or force or persuasion used upon the defendant . . . ,” and was not made until appellant was warned of his rights and appellant stated that he understood his rights.

Appellant was taken before a magistrate about 3:30 p. m. and again warned of his rights. Another statement was taken from appellant at 8:40 p. m. that evening. Officer Baker, the person to whom this statement was given, testified that appellant gave him the statement after “approximately five to ten minutes” of interrogation. This statement concerned an offense appellant was connected with on February 20,1975, while the earlier confession related to an offense which occurred on February 21, 1975.

This Court has just held that the protection offered by the Fourth Amendment extends to probationers. Tamez v. State,-S.W.2d-(1976). The rationale underlying the Tamez opinion dictates that a probationer is not deprived of Fifth Amendment rights.

In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), Brown, who had been arrested without probable cause and without a warrant, made two inculpatory statements after he had been given the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The United States Supreme Court reversed the Illinois Supreme Court, which had held that the Miranda warnings had broken the causal chain between the illegal arrest and the subsequent statements, stating:

“We emphasize that our holding is a limited one. We decide only that the Illinois courts were in error in assuming that the Miranda warnings, by themselves, under Wong Sun always purge the taint of an illegal arrest.”

The facts set forth in the Brown opinion reflect that the defendant, upon returning to his apartment in the early evening of May 13, 1968, was confronted with a gun pointing through the window of his apartment held by a stranger who was inside the apartment. The defendant was told, “Don’t move, you are under arrest.” Another man, also with a gun, came up behind defendant and repeated the statement. The two men turned out to be detectives on the Chicago police force. The opinion notes that the record does not divulge when the two detectives advised the defendant of their identity, “but it is not disputed that they broke into his apartment, searched it, and then arrested Brown, all without probable cause and without any warrant, when he arrived.” Defendant was taken to the police station, being questioned by the detectives during the twenty minute drive. Upon arrival at the station house, defendant was placed in an interrogation room. The officers obtained a murder file, gave defendant his Miranda warnings, and confronted the defendant with the fact that they had recovered a bullet defendant had shot into the ceiling of a pool room and that it had been taken to the crime laboratory to be compared with a bullet removed from a murder victim. The defendant then made a statement which “was separated from his illegal arrest by less than two hours . .” The Supreme Court found there was no intervening event of significance between the arrest and the first statement and that the second statement given at 3:00 a. m. the next morning “was clearly the result and the fruit of the first.” The defendant was first taken before a magistrate some fourteen hours after his arrest, at 9:30 a. m. the day following his arrest. In reviewing the factors to be considered in determining whether the confession is obtained by exploitation of an illegal arrest, the Supreme Court said:

“The question of whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence .of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620,1626, 32 L.Ed.2d 152 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant. See Wong Sun v. United States, 371 U.S., at 491,83 S.Ct. 419. The voluntariness of the statement is a threshold requirement. Cf. 18 U.S.C. § 3501. And the burden of showing admissibility rests, of course, on the prosecution.” (reference to footnote citations omitted)

The record in the case before us is devoid of information possessed by the officers who arrested appellant. Thus, we are unable to make a determination if probable cause existed to arrest appellant without a warrant. Under such circumstances, we can only conclude that the arrest and detention of appellant were illegal.

A sharp contrast exists in the circumstances surrounding the arrest of the defendant in Brown v. Illinois, supra, and appellant in the instant case. We deem it significant that the Supreme Court noted, “The manner in which Brown's arrest was effected gives the appearance of having been calculated to cause surprise, fright and confusion.” No such flagrant misconduct is present in the instant case. Appellant’s probation officer went to appellant’s house in the company of another officer and the probation officer asked appellant to go with them to the police station where Detective Hudson wanted to talk to him. Shortly after arrival at the station house, appellant was placed under arrest. The record in the instant case, unlike Brown, does not reflect questioning of appellant en route to the police station or questioning after arrival at the station house, nor is there any showing that prolonged questioning preceded the first confession. In Brown, it appears questioning was continued from the time of the arrest until the confession was made with the exception of time consumed in obtaining a murder file. The record in the case before us reflects that four or five suspects were being processed on ten or fifteen theft cases at the time appellant was brought to the police station. Officer Davis explained that processing included taking information, photographing and taking fingerprints of the person arrested and it appears that the officers at the police station were occupied with the job of “processing” persons at the time of and following the arrival of appellant. The State urges that this accounted for the delay in getting appellant to a magistrate. Brown v. Illinois, supra, emphasized that the voluntariness of the statement is the threshold requirement. Clearly, factors present in Brown which tended to militate against the voluntariness of the confession are not present in the instant case. The record does not reflect, nor is it contended, that any action was taken by the officers which tended in any way to deprive appellant of his capacity for self-determination. We conclude that the confessions taken from appellant were not obtained by the exploitation of an illegal arrest and that the court was not in error in admitting them into evidence. See and cf. Lacefield v. State, Tex.Cr.App., 412 S.W.2d 906; Chase v. State, Tex.Cr.App., 508 S.W.2d 605.

We find that the court did not abuse its discretion in revoking appellant’s probation.

The judgment is "affirmed.

Opinion approved by the Court.

      . See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . A condition of appellant’s probation required that he “Permit the said probation officer to visit him at his home or elsewhere.”


text:
    Phillip Wayne KINCAID, Appellant, v. The STATE of Texas, Appellee.
    No. 51667.
    Court of Criminal Appeals of Texas.
    March 24, 1976.
    Arthur J. Brender, Jr., Court appointed, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Donald S. Gan-dy and Howard M. Fender, Asst. Dist. At-tys., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. The record reflects that after the State rested its case in chief the appellant changed his plea to guilty. Punishment was assessed by the jury at life.

The indictment alleges that the offense occurred on August 16,1974, and the record reflects that trial was in February, 1975.

In his first two grounds of error, appellant complains of the prosecutor reading Section 15 of Article 42.12, V.A.C.C.P. relative to the parole laws in his argument to the jury, and in wrongfully informing the jury of the operation of the parole law in that the section read by the prosecutor had not been the law since this section of the code was amended, effective August 28, 1967.

The record reflects that the following occurred during the argument of the prosecutor:

“Now, the Judge tells you, in assessing punishment in this case, that you are not to consider how long he will spend down there. This is up to the Defendant. How he reacts — how the Board of Pardons and Paroles thinks of him when he is down there. Obviously, he got out in less than ten years on the ten year sentence.
“I’m going to have to contest part of what Mr. Webb says about how long he will stay down there if you give him more than twenty years. He will stay down there until he is fifty or sixty years if you give him more than twenty years? Now, that is just not true. Or if you give him life, he will stay down there for the rest of his life? That is not true. And he is not entitled to get out on parole. Everybody knows that.
“You can’t try and guess how long he will serve on what you give him. But you don’t know what he is going to do when he gets down there. That is up to the Board of Pardons and Paroles.
“Mr. Webb [defense counsel] brought up the subject of how long he would have to stay on that life sentence, so that entitles me to—
“MR. WEBB: Now, I object to him reading the law and introducing any evidence that is not in evidence.
“THE COURT: Overruled.
“MR. WEBB: Please note our exception. “BY MR. BUCKNER [prosecutor]:
“Mr. Webb proceeded to tell you the law of how long he will have to stay down there on a life sentence or anything over twenty years, and I am going to read you Section 15 of the Penal Code [Code of Criminal Procedure] Article 42.12, Subsection C, ‘Paroles’:
‘The Board is [legally] authorized to release on parole with the approval of the Governor, any person confined in any penal or correctional institution of this state except those persons under the sentence of death, who have served one-fourth of the maximum sentence may be imposed provided that in any case he may be paroled after serving fifteen calendar years; however,’ —this is important. ‘Time served on the sentence imposed shall be the total of the calendar time served and all credits allowed under the laws governing the operations of the Department of Corrections and executive clemency.’ ” (Emphasis supplied.)

The State urges that the complained-of argument was invited by the argument of appellant:

“And therefore, I ask you not to assess this man a life sentence or a long term of years. If you assess him more than fifteen or twenty years in the penitentirary, you are going to send him down there until he is about fifty or sixty years old, and that I reckon, would be after he has turned into a old man — getting up in age, and I don’t think that would solve anything.
“If you send him down there for life or ninety-nine years or anything over and above twenty years, you can expect that he will be there the rest of his life and that is not where he belongs.
“And I submit to you if you place him down there for more than fifteen years or twenty years, you might as well put him away for life.
“But I ask you to consider the facts. If you send him down there for more than twenty years or fifteen years, you might as well put him away for life, because there is no hope then.”

While the appellant’s argument invited the prosecutor to speak to the subject of how long appellant would have to spend in the penitentiary, it did not invite a reading of what was purported to be the law on the matter, especially when same constituted a misstatement of the law. See Jones v. State, Tex.Cr.App., 522 S.W.2d 225; Lincoln v. State, 508 S.W.2d 635. "N

The court had properly instructed the jury in its charge, “. . . you are bound to receive the law from the Court.” When the court overruled appellant’s objection to the prosecutor “reading the law,” the only reasonable conclusion the jury could draw was that the prosecutor had read the proper law to them. Not only was it error for the prosecutor to read the parole law to the jury, the harmfulness of such error was compounded in an instance such as this when there was a misstatement of the law which was clearly to the detriment of appellant. The law in effect at the time of the trial of this case is contained in Section 15(a), Article 42.12, V.A.C.C.P., effective August 28, 1967, and reads:

“The Board is hereby authorized to release on parole, with the approval of the Governor, any person confined in any penal or correctional institution of this State, except persons under sentence of death, who has served one-third of the maximum sentence imposed, provided that in any case he may be paroled after serving 20 calendar years.” (Emphasis supplied.)

When a defendant injects matters not in evidence during jury argument, as appellant did in this case, he invites the State to reply, but the invitation does not grant the prosecutor a license to stray beyond the scope of the invitation. See Rodriquez v. State, Tex.Cr.App., 520 S.W.2d 778.

We cannot characterize the error as harmless in light of the fact that the jury assessed appellant the maximum penalty allowed by law.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    INDUSTRIAL HANDLING ENGINEERS, INC., Appellant, v. ELECTRO FILM, INC., Appellee.
    No. 18765.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 29, 1976.
    Rehearing Denied Feb. 26, 1976.
    Michael Connelly, Butler, Binion, Rice, Cook & Knapp, Houston, for appellant.
    Schuyler B. Marshall, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

This appeal is from an order of the district court of Dallas County, Texas, overruling the plea of privilege of appellant Industrial Handling Engineers, Inc. Electro Film, Inc. sued Industrial Handling Engineers, Inc. and Litton Systems, Inc., seeking damages for breach of contract. Industrial Handling Engineers, Inc. filed a plea of privilege asserting its right to be sued in the county of its residence, Harris County, Texas. Litton answered but did not controvert Industrial’s plea of privilege. Electro Film, Inc. filed a controverting plea and an affidavit which incorporated its petition and asserted that the suit was properly brought in Dallas County pursuant to subdivisions 5(a), 7, 23, 27 and 29a of Tex.Rev. Civ.Stat.Ann. art. 1995 (Vernon 1964). Following a hearing on the venue question, the trial court overruled the plea of privilege, and Industrial Handling Engineers, Inc. perfected this appeal.

We affirm the judgment of the trial court. The record shows that Electro Film, Inc. proved its right to litigate this suit in Dallas County based upon subdivision 23 of the venue statute.

In its petition, Electro Film, Inc. alleged that it was a Texas corporation with its principal place of business in Dallas County, Texas, and that it engages in the business of purchasing film from which it extracts silver and other elements which are sold in purified form. As a part of its business, the corporation requires an operable conveyor system to transport the raw film about its premises. It pleaded that in the fall of 1973, it was contacted in Dallas County by one or more agents of Industrial Handling Engineers, Inc., who represented that they could furnish a properly designed conveyor system, which they could install in a proper and workmanlike manner. Relying upon these representations, Electro Film entered into a written contract with Industrial, agreeing that the conveyor system was to be installed in Electro Film’s office in Dallas County, Texas. It alleged also that after being installed, the conveyor system was defective and did not operate as had been represented. As a result of Industrial’s failure and refusal to remedy the defects or to remove the conveyor system, Electro Film was forced to remove the system at its own expense and install a new system. It pleaded, finally, that damages were sustained as a result of the breach of contract.

At the venue hearing, the written contract between Electro Film and Industrial was introduced into evidence and showed that it was executed in Dallas County, Texas, on September 28, 1973. It was signed by W. L. Schaulin on behalf of Industrial. There was testimony that Mr. Schaulin lived in Dallas and was an engineer and employee of Industrial in their Dallas office. Mr. Schaulin had carried on the negotiations with Electro Film. Other testimony showed conclusively that the conveyor system was installed in Dallas County, Texas, at Electro Film’s place of business, and that after installation, the system did not operate properly. For example, the tubes that were to carry the chains and the clutches on the drive mechanism failed. When notified of the defect in the system, Industrial attempted unsuccessfully, to repair the equipment. The contract contained a number of warranties, including (1) “equipment to be free from defects in workmanship and material” and (2) seller would conduct a “final test of system under operating conditions with purchaser’s product being handled.” Testimony was introduced to show that both of these warranties were breached. In addition, testimony of the amount of damage sustained by the purchaser as a result of the breach of the contract was introduced. In oral argument before this court, attorneys for appellee Electro Film, Inc. conceded that the only subdivisions of article 1995 upon which they relied to maintain venue in Dallas County, Texas, were subdivisions 5(a) and 23.

Venue is not properly in Dallas County by virtue of subdivision 5(a). This exception to the general venue rule is express in its terms that: “Subject to the provisions of subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” For subdivision 5(a) to be applicable here, the contract between Industrial and Electro Film must expressly name Dallas County, Texas, or a specific place therein, as the county of performance. Southwestern Investment Go. v. Shipley, 400 S.W.2d 304, 307 (Tex.1966); Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120, 123 (1952); Owens v. Sherrard Motor Co., 496 S.W.2d 113, 114 (Tex.Civ.App.— Tyler 1973, no writ). Under subdivision 5(a), the place of performance cannot be fixed by implication. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950); Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 613 (1948). The contract in this case shows on its face that the place of performance is not specifically designated therein. The contract begins:

TO: Electro Film, Inc. 221 Garvon Garland, Texas

The contract also provides that the equipment purchased shall be installed. These two provisions within the contract do not satisfy the requirements that the place of performance be expressly named in the contract.

However, the record shows that Electro Film proved venue is proper in Dallas County under subdivision 23. This exception to the general venue rule provides that suits against a private corporation may be brought in the county in which its principal office is situated; in the county in which the cause of action or a part thereof arose; in a county in which the plaintiff resided at the time the cause of action or a part thereof arose, provided that the corporation has an agency or representative in that county. Industrial first contends that subdivision 23 is inapplicable because Electro Film failed to prove that Industrial has an agency or representative in Dallas County, where the suit was instituted. The record contains testimony that Industrial maintained a place of business and office in Dallas County, Texas, and that Mr. Schaulin negotiated and executed the contract in Dallas County on behalf of Industrial. However, we will not discuss whether Schaulin was the agent of Industrial for purposes of subdivision 23 because we do not reach that question. Electro Film has proved by a preponderance of the evidence that its cause of action against Industrial arose in Dallas County. The provision of subdivision 23 that suits against a private corporation may be brought “in the county in which the cause of action or part thereof arose” does not require that a corporation have an agency or representative in the county in which the cause of action, or part thereof, arose. Crown Sash & Door, Inc. v. Steves Sash & Door Co., 511 S.W.2d 603, 605 (Tex.Civ.App. — San Antonio 1974, no writ); Anderson Co. v. South Texas Planting Seed Ass’n, 472 S.W.2d 592, 594-95 (Tex.Civ.App. — Corpus Christi 1971, no writ). Proof by a preponderance of the evidence that the cause of action against the corporation arose in the county where suit is brought is alone sufficient to justify venue under subdivision 23.

The testimony is uncontroverted that the contract between the parties was made and signed in Dallas County, Texas; that the conveyor system was delivered to Electro Film in Dallas County, Texas; that the equipment was defective and not as represented; and that Industrial failed or refused to carry out its agreement to remedy the defects. It is also not disputed that the written agreement contained express warranties concerning the function and performance of the equipment. These express warranties were breached by Industrial. Finally, the testimony is undisputed that Industrial sustained monetary damage as a result of the failure of the equipment to perform and the cost of removing the system. Thus all the elements of a breach of contract in Dallas County were proved, and subdivision 23 was applicable. Delhi Gas Pipeline Corp. v. Allgood, 492 S.W.2d 651 (Tex.Civ.App. — Tyler 1973, no writ); Inwood National Bank v. First Bank & Trust, 485 S.W.2d 842 (Tex.Civ.App. — Waco 1972, no writ); Taylor-Evans Seed Co. v. Hart, 420 S.W.2d 138 (Tex.Civ.App. — Amarillo 1967, no writ).

The judgment of the trial court is affirmed.