author: GALBREATH, Judge.

text:
    William SHEETS, Director, Tennessee Bureau of Criminal Identification, et al., Plaintiffs-in-Error, v. J. Fred HATHCOCK, Individually, and d/b/a Hathcock Realty Company, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 9, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Carl Douglas Thoreson, Asst. Dist. Atty., Nashville, for plaintiffs-in-error.
    Joe P. Binkley, Nashville, for defendants-in-error.
   OPINION

GALBREATH, Judge.

This is an appeal from the action of the Criminal Court of Davidson County in granting the motion of J. Fred Hathcock to quash a subpoena issued by William Sheets, Director of the Tennessee Bureau of Investigation to the First American National Bank in Nashville.

From the record it appears that in June of 1974 an ongoing investigation was being conducted by the Office of the District Attorney General in Davidson County into allegations of official misconduct on the part of some members of the Metropolitan Council. In response to a request from the District Attorney, the Tennessee Bureau of Investigation undertook to assist in the investigation. The subject subpoena was issued at the behest of one Charles Young, Investigator, pursuant to authority granted by T.C.A., § 38-502:

When detailed by the commissioner to aid the district attorney-general as aforesaid, such field investigators shall have full power to issue subpoenas for witnesses, serve the same, to administer oath to such witnesses as they may summon, to take written statements from them .

The subpoena was not made an exhibit to the record for some reason but, as read into the Bill of Exceptions by counsel for Mr. Hathcock, recited:

We command you to summon any authorized representative of the First American National Bank, Davidson County, Tennessee personally to appear before the undersigned to be questioned by him and/or to bring with him such paper, book, agreement, document or other records pertaining to any accounts in the name of Hathcock Realty Company and/or J. Fred Hathcock from the period of a certain date at 10:00 a. m. on the 25th day of June, 1974 at 1210 Andrew Jackson Building in the City of Nashville. Signed Mr. Charles Young, C.I.

It was part of the contention of Hathcock that records compiled relative to his business transactions with the bank were not subject to subpoena since he had not been charged with any crime and was under no indictment.

Most subpoenas inquiring into possible criminal activities of persons under investigation by the Attorney General for the eventual use of the Grand Jury are issued well before indictment. This is so general a practice that no citation to authority is necessary in support. The fact that the subpoena in this case was issued not by a court or Grand Jury is not decisive.

Statutes authorizing administrative subpoenas are numerous. See T.C.A., Vol. 15, General Index, pages 366, 367 and 368. Such subpoenas authorized by the Legislature in the absence of any charge have been upheld by the Supreme Court.

In Rushing v. Tennessee Crime Commission, 173 Tenn. 308, 117 S.W.2d 4, an attack on administrative subpoenas was made pri- or to any indictment during a general investigation into crime. The Court held:

The provisions of such statutes authorizing public instrumentalities such as boards and commissions to issue subpoenas for witnesses and require them to produce pertinent documentary evidence in their possession are not proscribed by any provision^] of the Constitution nor by any consideration of public policy. Such powers are conferred upon the Fire Prevention Department, upon the State Board of Public Utilities, and upon municipal boards through provisions in corporate charters.

It also states on page 319, 117 S.W.2d on page 9:

It is insisted that the provision of section 6 requiring all departments and officers of the State and its subdivisions to give information to the Crime Commission in aid of its inquiry is void, among other reasons because it violates the assurance against unlawful search and seizure, lets the Commission inquire into the private affairs of the citizens, and for other reasons. Counsel have pointed out no provision of the Constitution to support complainants’ insistence and we know of no constitutional restraint upon the power of the State to inquire into the conduct of State, county and municipal officials in their management of public affairs and to examine the public records in their possession.

It is true that in this case the records are not “public records,” but neither are they records of J. Fred Hathcock but those of the bank kept by it for its business purposes. This brings the question that to us is decisive — standing of Mr. Hathcock to challenge the issuance of the subpoena. The subpoena in question was not directed to Hathcock but to the First American National Bank. If anyone could challenge its sufficiency the Bank would have to. The records asked for in the subpoena were not the records of Hathcock, but those of the Bank kept for its own business purposes.

There appear to be no Tennessee cases on the subject. Many Federal cases, particularly in the line of IRS subpoenas directed to various and sundry people concerning the records of another, may be found. In them, subpoenas similar to the one in this case were challenged by the persons who were the subject of the records on the basis of Fourth and Fifth Amendment rights claimed — both under the self-incrimination and search and seizure doctrines. In one such case dealing with an IRS subpoena from the Sixth Circuit (In re Fahey, 300 F.2d 383 (1961), the issue was work papers made by an accountant hired by Fahey to prepare tax returns. The Court said at page 385:

There is no constitutional privilege for incriminating evidence in the possession of another person, even though the information supporting the evidence was obtained from the accused and regardless of whether such evidence tends to incriminate the other person.

One may, with some degree of confidence, disclose incriminating facts to his spouse, accountant, attorney, physician, or priest, but no statutory or ethical relationship inhibits any other person from divulging such information whether he be neighbor, stockbroker, barkeep or banker. Indeed there is a common duty shared by all not under the inhibition of a privileged status to come forward with any information they might have imparted to them that indicates the confidant has violated the law. While not all respond voluntarily to this measure of good citizenship by informing those in authority of the information confided in them by one engaged in criminal activity, it is presumed that all will obey the lawful mandate of a subpoena and speak the truth when official inquiry is made.

One who wishes his affairs to remain secret should not impart information concerning them to a friend, a banker, or even a tape recorder in the Oval Office of the President of the United States. Once having been voluntarily made, admissions against interest to a non-privileged party may be used against the declarant whether the admissions take the form of an oral or written confession, a letter to a relative, a recorded conversation, a deposit slip given to a teller at a bank, or any of the literally hundreds of forms communications take. While the Fifth Amendment to the United States Constitution protects one against compulsory furnishing of evidence against oneself, it does not extend to non-privileged communications to third parties.

In perhaps the most recent case of asserted privilege (here in partnership records subpoenaed by a Grand Jury for investigation of the personal affairs of the partner in custody of the records), Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678, the Court held:

These decisions reflect the Court’s consistent view that the privilege against compulsory self-incrimination should be “limited to its historic function of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.” United States v. White, supra, 322 U.S. [694], at 701, 64 S.Ct. [1248], at 1252 [88 L.Ed. 1542]. White is only one of the many cases to emphasize that the Fifth Amendment privilege is a purely personal one, most recent among them being the Court’s decision last Term in Couch v. United States, 409 U.S. 322, 327-328, 93 S.Ct. 611, 615-616, 34 L.Ed.2d 548 (1973). Relying on this fundamental policy limiting the scope of the privilege, the Court in White held that “the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity.” 322 U.S. at 699, 64 S.Ct. at 1251.

In Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed. 548, the Supreme Court held:

It is important to reiterate that the Fifth Amendment privilege is a personal privilege: it adheres basically to the person, not to information which may incriminate him. As Mr. Justice Holmes put it: “A party is privileged from producing the evidence, but not from its production.” Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913). The Constitution explicitly prohibits compelling an accused to bear witness “against himself”: it necessarily did not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege, and “prohibition of compelling a man ... to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communication from him,” Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (emphasis added). It is extortion of information from the accused himself that offends our sense of justice.
In the case before us the ingredient of personal compulsion against an accused is lacking. The summons and the order of the District Court enforcing it are directed against the accountant. He, not the taxpayer, is the only one compelled to do anything. And the accountant makes no claim that he may tend to be incriminated by the production. Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent. In the present case, no “shadow of testimonial compulsion upon or enforced communication by the accused” is involved. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966).
The divulgence of potentially incriminating evidence against petitioner is naturally unwelcomed. But petitioner’s distress would be no less if the divulgence came not from her accountant but from some other third party with whom she was connected and who possessed substantially equivalent knowledge of her business affairs. The basic complaint of petitioner stems from the fact of divul-gence of the possibly incriminating information, not from the manner in which or the person from whom it was extracted. Yet such divulgence, where it [did] not [coerce the accused] herself, is a necessary part of the process of law enforcement and tax investigation.

It results that we find that Hath-cock is without standing to assert a sustainable claim of privilege preventing access to records of the First American National Bank.

Actually, most of what we have said here is not dispositive of the issue before us. It is sufficient merely to point out that the defendant in error, not being a party to the subpoena had no standing to object to its issuance or to such compliance as the First American National Bank might make pursuant to its directives. Although we do not suggest any basis therefor, any objections to compliance must be asserted by the Bank.

The judgment of the trial court is reversed and the motion of the petitioner below is dismissed at his costs.

Having disposed of the specifics of the case before us, we feel the following general comments are justified.

It is the ever present duty of judges to make such recommendations to the Legislative Branch as deemed necessary and appropriate:

Legislative advice. — A judge has exceptional opportunity to observe the operation of statutes, especially those relating to practice, and to ascertain whether they tend to impede the just disposition of controversies; and he may well contribute to the public interest by advising those having authority to remedy defects of procedure, of the result of his observation and experience. Judicial Canons, § 19.

Having disposed of the issues presented by the facts of this case by applying the law as it now exists, we recommend that serious consideration be given to a modification of that law which now permits agents of the Tennessee Bureau of Investigation to do that which the law does not authorize any other law enforcement agency to do. District Attorneys General in Tennessee do not have the power to issue subpoenas requiring the production of evidence to him or members of his staff. Not even agents of the Federal Bureau of Investigation have this power. When we pointed out recently in Graves v. State, Tenn.Cr.App., 489 S.W.2d 74, the proscriptions against individuals being clothed with subpoena power, we reiterated the settled law in this State prohibiting District Attorneys General from issuing subpoenas and, in doing so, referred to an early decision of our Supreme Court:

“[B]y what authority does an attorney-general assume to perform the functions and exclusive duties of the grand jury? The mere fact that he is an officer of the court and may visit the grand jury, prepare and present indictments to them, and prepare instruments when directed by the grand jury, does not imply an authority to assume any of the duties assigned by law to a grand juror. If he may assume the office of grand juror for one purpose, why may he not do so for every purpose? If because he suspects a violation of law, he may of himself and of his own motion order a subpoena for witnesses to go before the grand jury to give evidence touching the same, why may not the sheriff or constable who waits upon the grand jury do so? Why may not the judge himself or any attorney for the court assume and practice the power?
“It requires a judge, attorney-general, attorneys, clerks, sheriffs, etc., to constitute a court, and each is an officer of the court, so if we construe the law directed to grand juries to include one officer of the court, we must for the same reason construe it to embrace all officers of that court.
“That the Legislature did not intend to confer upon attorneys-general the power to order process of subpoena, in the sort of case before us, is manifest from section 5090a [40-1619], by which he is empowered to call upon clerks between terms for process to secure the attendance of witnesses before the grand jury at the succeeding term when, in his opinion, it is necessary to secure the ends of justice and protect the interests of the State.” Warner v. State, 81 Tenn. 52.

By resorting to the broad powers conferred by T.C.A., § 38-502 on agents of the Tennessee Bureau of Investigation, District Attorneys General may actually do that which the law proscribes since the agent conducting the examination under the auspices of the authorized subpoena will be acting at the request of and, it is assumed, in direct association with the District Attorney General who requested the assistance. This is a subterfuge which has little appeal to logic. If the law cannot trust the chief elected official in a judicial district with the power to command citizens to appear before him in the course of a criminal investigation, one wonders why an individual officer of an investigative agency should be so empowered.

It has always been repugnant to our form of government to permit policemen to have the power of compulsory process. As noted above, not even the most powerful such Federal investigating agency has this power.

We would recommend that the power of subpoena for the investigation of one suspected of criminality be conferred, if it is to exist, directly on District Attorneys General, rather than on field agents of the Tennessee Bureau of Investigation and that the provisions of Tennessee Code Annotated now granting this power to the latter be repealed.

O’BRIEN and DUNCAN, JJ., concur.


source: Caselaw Access Project

author: WALKER, Presiding Judge.

license: Public Domain

text:
    Donald PRESLEY et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 11, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Frank V. Williams, III, Rockwood, for plaintiffs-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, Robert T. Beaty, Asst. Dist. Atty. Gen., Oneida, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

The defendants below, Donald Presley, Terry Coffey and Stanley Coffey, were indicted and convicted under T.C.A. § 39-1106 of conspiracy to burn or otherwise destroy Presley’s Chevrolet automobile with intent to defraud the Kingston Bank and Trust Company and the State Farm Mutual Insurance Company. The jury fixed the punishment of each defendant at three to five years in the penitentiary. All appeal in error from the judgment and sentence following that verdict.

The state’s evidence showed that Presley owed $1,378.29 to the Kingston Bank and Trust Company secured by a lien on his automobile and that it was insured by the State Farm Mutual Insurance Company. He was paying the interest but not making regular payments on the loan.

About 9:00 A.M., August 25,1973, Presley reported to a Harriman police officer that his car had been stolen from a Harriman shopping center. James Summers, a Morgan County officer, saw Presley and Terry Coffey in the car about 7:50 A.M. that day and again saw the car in the Catoosa wildlife area about 10:30 A.M. He and deputy sheriff Bobby Powers hid there and watched the car until about midnight when the defendants Terry Coffey and Stanley Coffey, along with one Fred Cook, arrived at the site where the car was hidden in the woods. From their conversations and actions, the jury was warranted in believing that these defendants and Cook were about to strip and burn the automobile. When the officers were satisfied about the intent of these parties, they fired their weapons and arrested the Coffey brothers and Cook.

All of the defendants testified and denied any conspiracy to burn the automobile. Presley denied being with Terry Coffey that morning. From the defendants’ testimony, about 10:30 P.M. at a tavern the Coffey brothers learned of the location of the car in the large wildlife area and notified Presley. At Presley’s request, they and Cook went to get the car for him. Presley did not accompany them because his wife was ill. They contend they had no intention to damage the automobile but planned to return it to their friend Presley.

The state’s evidence, which the jury accepted, points to an ordinary conspiracy. Although the defendant does not assign it as error, the state calls to our attention the statute T.C.A. § 39-1106 under which the defendants were indicted and convicted. For its violation the penalty is three to 21 years’ imprisonment in the penitentiary.

In Trotter and Arnold v. State, 158 Tenn. 264, 12 S.W.2d 951, our Supreme Court held that the ordinary crime of conspiracy, an agreement of two or more persons to commit a crime, is not within the proscription of this statute. The court considered the historical background of the statute and found that it was enacted to destroy an organization known as the “Whitecaps.” This organization burned property, took human life, inflicted corporal punishment and terrorized communities in which it operated. The efforts of the lawmakers were directed against organizations, more or less abiding in character. By that case the statute is not directed against the conduct shown here. See also Jenkins v. State, 99 Tenn. 569, 42 S.W. 263, which held that the Act was “commonly known as the law against whitecaps.”

The Trotter interpretation was followed and applied in Asbury v. State, 178 Tenn. 43, 154 S.W.2d 794. See also 8 Vanderbilt Law Review 73, 88.

In DeLaney v. State, 164 Tenn. 432, 51 S.W.2d 485, the court did not discuss its prior consideration of this statute but reversed the case because there was only one conspirator.

The state urges that Trotter and Arnold v. State, supra, and Asbury v. State, supra, were improperly decided and that we should not follow them. We may not ignore the prior decisions of our Supreme Court and we are bound by them. Under these authorities, we reverse and remand the case.

It is so ordered.

DWYER and DUNCAN, JJ., concur.


author: DUNCAN, Judge. GALBREATH, Judge

text:
    Lynn POPE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 16, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Billy W. Townsend, Hohenwald, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty. Gen., Centerville, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The defendant has appealed from his misdemeanor conviction and judgment based thereon for the offense of “Interfering with an Officer”.

In his first assignment of error, the defendant alleges that the presentment does not state a statutory offense.

The presentment in this case charged: The Grand Jurors for the State of Tennessee, duly elected, empaneled, sworn and charged to inquire for the body of the County of Lewis, and the State aforesaid upon their oath aforesaid, present that Lynn Pope heretofore, to-wit, on the 3rd day of December 1973, before the finding of this indictment, in the county aforesaid, unlawfully, knowingly and willfully did oppose one James Johnston and one Kenneth Mash, duly appointed, qualified and acting police officers of the City of Hohenwald, Tennessee, who were then and there arresting Kenneth Jackson and Michael Cross for the offense of breaking into a bank in the City of Ho-henwald, being committed then and there in the presence of said officers, said opposing said officers consisted of holding the arm of Officer Johnston and causing confusion by shouting and otherwise attempting to hinder said officers in making said arrest; against the peace and dignity of the State.

Since the officers were not armed with a legal writ or process, then T.C.A. § 39-3104 (resisting officer serving process) would not apply. Maverty v. State, 78 Tenn. 729; State v. Wright, 164 Tenn. 56, 46 S.W.2d 59.

Thus, we agree that the presentment does not charge a statutory offense, but it does state a common law offense. 58 Am. Jur.2d, Obstructing Justice, §§ 10 and 12, and 67 C.J.S. Obstructing Justice § 5. See also cases therein cited. In Tennessee, where no statute is in force, then common law crimes are recognized. Goff v. State, 186 Tenn. 212, 209 S.W.2d 13.

Interfering with an officer while in the performance of his duties is a common law offense in Tennessee and is recognized as such by State v. Wright, supra. As stated in the Wright case, for an indictment to be valid it must allege that (1) the officer was acting lawfully; (2) the official character of the officer; and (3) the nature of the resistance by reciting facts relative thereto.

In Wright, the court held the indictment did not contain sufficient allegations to make out the offense under T.C.A. § 39-3104, nor did it contain sufficient criteria as above stated to state a common law offense; however, the instant presentment is much broader, and it does allege all of the criteria required by the Wright case.

We think this presentment alleges the necessary facts to constitute the offense alleged. T.C.A. §§ 40-1802 and 40-1805.

Also, it is helpful to keep in mind that Tennessee courts have long held that misdemeanor indictments require somewhat less specificity than felony indictments. The same strictness of averment is not necessary in an indictment for misdemeanors as in felonies. Sanderlin v. State, 21 Tenn. 315; Estep v. State, 183 Tenn. 325, 192 S.W.2d 706; State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445. A substantial description is all that is required in misdemeanor indictments. State v. Kilgore, 25 Tenn. 44; State v. Pennington, 40 Tenn. 119; State v. Odam, 70 Tenn. 220; McLemore v. State, 215 Tenn. 332, 385 S.W.2d 756.

Applying the foregoing principles of law to the presentment at hand, we are of the opinion that the allegations made therein well state a common law misdemeanor of “interfering with an officer while in the performance of his duties”.

The first assignment is overruled.

In his second assignment, the defendant contends that the court’s charge was materially at variance with the presentment and the proof.

The trial judge, even though he was charging on a misdemeanor, gave a full detailed charge to the jury.

The defendant made no objection to the charge at the trial and offered no special requests. Therefore, he is precluded from now complaining about the charge. Turner v. State, 188 Tenn. 312, 219 S.W.2d 188; Cook v. State (Tenn.Cr.App.), 506 S.W.2d 955.

Nevertheless, we have reviewed the court’s charge and we conclude that he adequately covered the law on the common law offense involved. Looking at the entire charge, we feel that it was not inconsistent with the presentment and the proof.

The defendant’s second assignment is overruled.

In his third assignment of error, the defendant alleges that the judgment entered by the court was materially at variance with the indictment and the proof.

As will be reflected hereinafter, under the assignment on the evidence, the proof was consistent with the allegations in the presentment. The jury returned a general verdict of guilty. This was a one count presentment and the general verdict of guilty will be applied to the offense which is alleged in the presentment and which is sustained by the evidence and proof. This presentment, as we have held, charges a common law offense of “interfering with an officer while in the performance of his duties”, and the evidence and proof make out this charge. Accordingly, we apply the verdict and judgment to this offense. T.C.A. § 40-2519; Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606.

The third assignment is overruled.

In his fourth, fifth and sixth assignments of error, the defendant alleges that the proof was not sufficient to support the verdict and that there was a material variance between the presentment and the proof.

In considering these assignments, we must scrutinize the proof, which is summarized as follows:

On December 3, 1973, a burglary of a bank in Hohenwald was taking place. Officers arrived on the scene and saw windows broken out and observed two (2) persons running from the bank. The officers arrested one of the fleeing individuals nearby, and he was placed in a police car. The officers, being of the belief that another or others were still in the bank, were in and about their duties in an attempt to ferret them out of the bank. At this juncture, the defendant, Lynn Pope, and several friends came up to the scene in an automobile. Officer Kenneth Mash testified that Pope’s friend, Muriel Cowie, got out of the car. The defendant Pope testified that he, himself, got out of the car on this first occasion. At any rate, all of the individuals in the car, including Pope, were told by the officers to leave the scene. They left, and according to the State’s proof, returned in just a few minutes, and Pope got out of the ear, was “hollering” and wanted to talk the others, thought to be inside, out of the bank. Contrary to everyone’s belief, and as it later turned out, there were no other individuals in the bank. At any rate Pope and his friends were again told to leave the scene and they did. In a couple of minutes the car returned, but Pope was not in it. Cowie got out of the car, had some words with one of the officers, and the car left going up the street “about a block”. At this time, Pope returned to the scene on foot, “hollering” and using “profanity”, remonstrating with the officers to the effect that “all you God Damn people want to do is kill us anyway”. At this point, according to Trooper James Dyer’s testimony, he arrested Pope “for interfering, he was causing a lot of confusion right there at the bank”. Trooper Dyer then testified that as he started to the car with Pope, he (Pope) grabbed Officer Johnson by the arm or shoulder. Trooper Dyer then fired his shotgun in the air, and Pope went on to the car.

The defendant Pope testified that he was a friend to all of the individuals in the car, and also a close associate of Mike Cross, who had been arrested; that he was also a friend to a Kenny Jackson, whom he thought to still be in the bank; that he had been on the scene on four occasions, but that one time the car just passed by real slow, without stopping. He admitted that he had been told by the officers to leave on the first two occasions; that he was aware that the officers had arrested Mike Cross and had him in the police car; that he may have used some profanity, but denied that he interfered with the officers, and denied he grabbed Officer Johnson; and that his concern was the safety of his friends.

In considering and passing upon an assignment of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, this Court is bound by the rule that a conviction will not be reversed on the facts unless it is shown by the defendant that the evidence preponderates against the verdict and in favor of his innocence. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173; Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743; McGhee v. State, 3 Tenn.Cr.App. 324, 460 S.W.2d 875.

The jury, by their verdict accredited the testimony given by the State’s witnesses.

Applying this evidence to even that portion of the presentment that charges the defendant did oppose and hinder the officer in arresting “Mike Cross”, it compels us to conclude that the defendant did' interfere with the officers while in the performance of their duties. While Mike Cross had been arrested and placed in the police car when the defendant appeared on the scene, such arrest was still in progress. The mere fact that Cross was in the police car did not terminate the arrest at that point. An arrest is a continuing process from the time one is apprehended until he is placed in jail.

In State of North Carolina v. Leak, 11 N.C.App. 344, 181 S.E.2d 224, the defendant was arrested on a warrant and taken before a magistrate and after proceedings there, he was being escorted to jail when he struck one of the arresting officers. In affirming his conviction for resisting arrest, the court held:

“We hold that an ‘arrest’ does not necessarily terminate the instant a person is taken into custody; arrest also includes ‘bringing the person personally within the custody and control of the law’. The arrest of defendant in the instant case did not terminate until he was delivered to the jailer and properly confined.”

We find no Tennessee case that delineates just when an arrest is completed, but it seems elementary that an arrest is not completed until the arrestee is placed in jail. We conclude that the law on this point is well stated in the Leak case, and we adopt it as applicable to the case at hand.

As to the question of interfering with these officers in the performance of their duties, it is significant to note that at one point in Officer Mash’s interrogation by the attorney general, he was asked, “Was Mr. Pope’s actions or was it not hindering you in your work?” Officer Mash replied, “Yes, sir, very much.”

Again on cross-examination, the record reflects the following telling testimony from Officer Mash:

“Q Well how were you trying to get them out of there, did you have a fog horn or anything?
A Our cars are equipped with them.
Q Are you using it?
A No, because they was causing such disturbance that we had to stop what we were doing to do something with them, we couldn’t have people everywhere up at the time in the situation it was. (Emphasis ours.)
Q You were trying to clear the streets in otherwise?
A Yes, sir, we was trying to get the people back because we didn’t know what we had.”

While, as a general proposition, mere arguments or remonstrances are not sufficient to constitute the offense of interfering with an officer in the performance of his duties, nevertheless it has been held that such may become sufficient where their intensity, or the totality of several acts, is such as to amount to an interference with the officer. See 44 A.L.R.3d 1018, 1035, and cases there cited.

Unquestionably, in all jurisdictions, if force is involved, the offense is complete. In the instant case, the evidence shows that not only was the defendant interfering by hollering, screaming and cursing, but he also used force by grabbing the arm of one of the officers, at a time when the arrest of Cross was still in progress. State of North Carolina v. Leak, supra.

Certainly, law abiding citizens should be encouraged to aid the police in their arduous tasks, but when one appears on the scene of a difficulty and acts as the defendant did on this occasion, then he is not behaving as a helping hand to the police officers and he cannot so act with impunity. In this case, these officers were confronted with an extremely serious situation at the bank, and in spite of repeated harassment and interference by the defendant, they acted with unusual restraint until the defendant’s actions compelled them to arrest him.

The evidence makes out the common law offense as charged in the presentment. It does not preponderate against the verdict, and we overrule the assignments on the evidence.

In the defendant’s seventh assignment, he contends the court erred in ruling that the issue of defendant’s identity was not relevant or material.

At the trial stage it was left unclear just what point the defendant was attempting to establish. Some reference was made by defendant’s counsel that at the jail, a person, other than the defendant, was referred to by one of the officers as being the defendant Pope. At the hearing of the motion for a new trial, the court permitted the testimony of Muriel Cowie to be entered in the record. Cowie testified that he had been in a car with the defendant Pope on the night of the incident and that he was the person ordered to leave the bank’s premises both times. He also testified that he had been identified in jail as being Lynn Pope, and that both he and Pope had a full beard. This testimony strikes us as being a distinction without a difference. It will be recalled that Officer Mash stated that the defendant, Cowie and others came up in the car on the first occasion; that Cowie got out and was told to leave and “they did”; that they returned, and Pope got out and was asked to leave; and that the car came back and Cowie got out on that occasion. We agree with the trial judge that the question of identity was not an issue.

It is clear from the State’s proof that Cowie and Pope were together, in company on the scene, on at least three occasions. The defendant Pope, in his testimony, admitted that he, himself, was on the scene on four occasions, and admitted that on two occasions he was asked to leave. The fact, if it be a fact, that Cowie was also asked to leave, is of no significance.

We find no merit to this assignment.

In his eighth assignment of error, the defendant alleges that he was unduly prejudiced because of the remarks and arguments of the prosecuting attorney.

The record reflects that no objection was taken by the defendant to the arguments of the attorney general at the trial, and thus we are precluded from considering same. Harper v. State, 206 Tenn. 509, 334 S.W.2d 933; Turner v. State, supra; Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52.

In his last assignment, the defendant says the verdict shows malice and caprice on the part of the jury. The punishment assessed was within the limits provided by law for this misdemeanor offense. We are of the opinion that the punishment was fair, just and reasonable, under the facts and circumstances present in this case. Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121.

Thus, from all of the foregoing, we conclude that there are no errors in this record. We affirm the defendant’s conviction.

O’BRIEN, J., concurs.

GALBREATH, J., dissents.

GALBREATH, Judge

(dissenting).

After a careful study of the proof set forth in the record before us in this appeal from the Lewis County Criminal Court, I am of the opinion the trial judge should have granted the motion made on behalf of the plaintiff in error to direct a verdict of not guilty.

The Presentment charged:

“The Grand Jurors for the State of Tennessee, duly elected, empaneled, sworn and charged to inquire for the body of the County of Lewis, and the State aforesaid upon their oath aforesaid, present that Lynn Pope heretofore, to-wit, on the 3rd day of December 1973, before the finding of this indictment, in the county aforesaid, unlawfully, knowingly and willfully did oppose one James Johnston and one Kenneth Mash, duly appointed, qualified and acting police officers of the City of Hohenwald, Tennessee, who were then and there arresting Kenneth Jackson and Michael Cross for the offense of breaking into a bank in the city of Hohenwald, being committed then and there in the presence of said officers, said opposing said officers consisted of holding the arm of Officer Johnston and causing confusion by shouting and otherwise attempting to hinder said officers in making said arrest; against the peace and dignity of the State.

There was no proof adduced that the officers were in the process of arresting either Kenneth Jackson, Michael Cross or any other person at the time the defendant offered his services to officers surrounding a bank in Hohenwald which one or more of the defendant’s friends were suspected of having entered earlier following a party attended by the defendant and a group of young friends. Michael Cross had been arrested earlier and there is nothing in the record to suggest that the defendant’s rather persistent and concededly troublesome efforts to aid the police interfered in any manner in that accomplished fact. Cross had run out of the bank building with an unidentified companion and had been arrested and placed in a police car. While I agree with the majority that the arrest of a resisting suspect is a continuing procedure until the resistance is overcome, surely under the circumstances of this case the arrest of Cross had been completed. There is no intimation that the defendant’s actions were intended in any manner to obtain the release from custody of Cross. On the contrary it must be conceded that they were designed ultimately to bring about the arrest of another friend of the defendant since both he and the officers thought there was a good possibility that Kenneth Jackson was in the building. However, there is no showing in the record that he was or that any interference was made by anyone in the officers’ attempt to arrest Jackson, if indeed such an attempt was made.

The proof does show that the defendant was ordered to leave a number of times, together with other occupants of an automobile in which they came to the scene and left at least three times before the defendant returned a fourth time and was arrested, but outside of admitted loud talking and profanity on the part of the defendant nothing is found in the proof that would constitute an interference with the officers in making arrests of anyone as charged in the presentment.

Undoubtedly, it is wise in most instances for one to accede to a request of a policeman or fireman to clear an area of potential danger, but if a citizen chooses to risk the chance of harm by dashing into a burning building in a foolhardy rescue attempt or to engage in efforts to persuade a person suspected of crime concealing himself in a building to give himself up to lawful authority, this would hardly constitute a crime. Far from interfering with efforts that might have been made to arrest one who may have been hiding from police in the bank building, it would appear that the defendant was trying to get such a person, if he was in the bank, to come out peaceably. It is regrettable that more citizens do not offer their cooperation and assistance to police. In any event, we have not yet reached a state in our hopefully free society where citizens may be ordered off the public streets at the whim of a police officer. It has been observed that there are only two forms of society in the world — those in which the people are subservient to police and those in which the police are subservient to the people. We have embraced the latter concept of government.

Proof was offered by the State that the defendant as he was being led by the arresting officer to a police car “grabbed” another officer by the arm, but there was no averment that this brief touching was for the purpose of obstructing either of the policemen present in the performance of their duties, and specifically in making the arrests the presentment charges he hindered. It could just as well have been an effort to attract the officer’s, whose arm was taken hold of, attention to what the defendant considered an unwarranted interference with his legitimate efforts to assist law enforcement officers and secure the apprehension of whomever might have been in the bank without bloodshed as he made plain was his purpose.

I would not, under the absence of proof in this case of any illegal action on the part of the defendant, permit him to be incarcerated for eleven months and twenty-nine days as sentenced. It may be, as the District Attorney General intimated in cross examination of the defendant, that he was involved in the breakin of the bank or had at least known his friends were planning such unlawful activity. He was not charged in the presentment with participation in that crime, and the State should not, in my opinion, be permitted to convict and punish him without proof that a crime was committed and that the defendant was guilty of committing it.

Many citizens find themselves in disagreement with police officers from time to time. To express this disagreement, even in argumentative fashion, is no crime. In reversing a conviction for disorderly conduct based on vocalized disagreement with a policeman the United States Supreme Court said:

“We find no evidence whatever in the record to support these convictions. Just as ‘Conviction upon a charge not made would be sheer denial of due process,’ so it is a violation of due process to convict and punish a man without evidence of his guilt.” Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.

Whatever the jury found reprehensible in the defendant’s conduct was not charged in the presentment, nor in my opinion proscribed by the common law.

I,therefore, respectfully dissent.


author: DWYER, Judge.

text:
    John Lee CHAPPLE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 30, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.
    Edward A. Love, Chattanooga, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Steven M. Bevil, Thomas J. Evans, Asst. Dist. At-tys. Gen., Chattanooga, for defendant-in-error.
   OPINION

DWYER, Judge.

From a conviction of robbery with a deadly weapon, see T.C.A. 39-3901, with punishment of confinement for 15 years, three questions are presented by court appointed counsel that the conviction was contrary to the law. The questions are: (1) that the arrest being illegal, all evidence flowing therefrom should have been suppressed on motion; (2) that the lineup was unfair; and (3) that admission of evidence of escapes by the trial court was error.

The evidence reflects from our review that the plaintiff-in-error, referred to hereafter as the defendant, armed with a pistol, robbed the Handy Andy Pantries food store located on Tennessee Avenue in Chattanooga around 10:00 p.m. on May 21,1974. The sum of $103.00 was taken from the cash register drawer, and two pocketbooks, containing approximately $6.00 each, were taken from the female cashiers. The holdup brought a prompt response by the police and a description of the holdup men was obtained from the two female cashiers. Both cashiers described the defendant as having unusually small, slanted, oriental type eyes.

Two days after the holdup, one of the officers who had received the description saw the defendant in an automobile and immediately connected him with the robbery. This connection was made because of the defendant’s unusual eyes and because of knowing the defendant from having seen him in the neighborhood of the store. He effected the arrest thereon of the defendant with his being identified by both victims in a lineup that day.

During a recess in the trial the defendant fled from the courthouse and was apprehended some blocks away and returned to the courtroom. This escape attempt, as well as an escape attempt prior to trial, was introduced into evidence over objection.

The defendant did not testify but offered proof recalling state’s witnesses to show a discrepancy in the testimony of the victims as to who went into the lineup room first.

We think the arrest was legal and based on probable cause: (a) the officer knew defendant before the holdup by seeing him on the streets; (b) when he received the description, in particular, the reference to the small, slanted, oriental type eyes, he related it was indelibly etched in his memory; (c) when he saw the defendant two days later and recalled the unusual eyes, there was no doubt in his mind that the defendant was responsible for the holdup. We think these facts as outlined in (a), (b), and (c) are sufficient to support a “probable cause” for the arrest, see Greer v. State, 2 Tenn.Cr.App. 407, 443 S.W.2d 681, 683, 684, 685. This assignment is overruled.

There was a full hearing out of the presence of the jury on the motion to suppress the lineup identification in which the two victims, the officer holding the lineup and the defendant testified. True, there may have been a discrepancy in the order in which the victims entered the lineup room which would not be controlling. The trial court, on the full hearing and argument of counsel, found no suggestive measures were employed and that the lineup was fair. On matters of this kind, his decision should not be overturned here unless the evidence preponderates against his ruling, see Mitchell v. State, 3 Tenn.Cr.App. 153, 458 S.W.2d 630, 633. The burden is upon the defendant to show that the evidence preponderates against that ruling. He has not carried that burden. We think the evidence supports his ruling that the lineup was fair. The assignment is overruled.

It is conceded by the defendant in his last assignment of error that evidence of escape is competent, see Mitchell v. State, 3 Tenn.Cr.App. 153, 458 S.W.2d 630, 633; Craig v. State, 2 Tenn.Cr.App. 510, 455 S.W.2d 190, 193. However, he reasons that at the time of his first escape attempt from the Hamilton County Jail prior to trial that another charge was pending against him (felonious assault). Hence, he reasons the escape attempt not directly proven in connection with the robbery offense upon which he was tried was therefore not relevant. He reasons therefore that the escapes and its inferences could not be attributed to the charge on trial, see 22A C.J.S. Criminal Law § 631. However, we think the attempted escape when in confinement on both of the charges would be relevant on the trial of either, see State v. Hudson, Mo.App., 491 S.W.2d 1. This assignment is overruled.

The judgment of the trial court is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


text:
    Tommy FERGUSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    July 1, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.
    O. W. McKenzie and J. W. McKenzie, Dayton, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, for defendant-in-error.
   OPINION

DWYER, Judge.

The plaintiff-in-error timely appeals from his conviction for committing the offense of murder in the second degree, with punishment of confinement for not less than ten nor more than fifteen years. We will refer to plaintiff-in-error as the defendant hereafter.

The decedent, a Jerry Campbell, the defendant and their families all had previously resided in the Cove Road area, Cumberland Mountain, in Bledsoe County. The Campbell family had moved from the mountain to the Cold Springs community of Bledsoe County and were residing there when this homicide occurred. The record reflects that the Fergusons and the Camp-bells had been “hollering” distance neighbors before animosities between the families caused the Campbells to move.

On the afternoon of October 27, 1973, Johnny Campbell and Jerry Campbell, his brother, were in Aults Tavern in North Bledsoe County. The defendant’s brother and the three of defendant’s sons and a cousin of the decedent entered the tavern. A melee occurred in which Johnny Campbell was shot between the eyes and William Ferguson was purportedly shot in the ear.

The aforementioned occurrence precipitated a meeting between the Campbells and the Fergusons at the Bledsoe County Hospital with the aftermath of Jerry Campbell being shot and killed by a .32 caliber automatic wielded by the defendant.

The evidence further establishes when the defendant arrived at the hospital and alighted from his car he was struck by a shotgun blast suffering superficial wounds to the face, neck, chest, shoulder and abdomen by an unknown assailant.

The defendant then entered the hospital where he shot and killed Jerry Campbell. When Johnny Campbell, who was in the emergency room, heard the shooting he obtained a pistol from his mother’s purse and fired shots at the defendant who fled and locked himself in the bathroom of a patient where he was arrested. No weapon was found on his person or in the bathroom.

There is evidence by state’s witnesses which reflects the defendant was armed when he entered the hospital and that he shot the unarmed decedent and that he stated, “I’ll kill every damn one of you,” in reference to the Campbells. There is further evidence that, after this shooting, the defendant entered a patient’s room, pistol in hand, and stated, “He shot me, I shot him.”

Later, at the hospital while investigation was underway, the lights went out and the sheriff, on information, again searched the defendant’s car which had remained parked in front of the hospital, and the death weapon and a .22 pistol were found under the back seat.

There were six people arrested as a result of this tragedy. A total of five pistols were confiscated by the sheriff, along with two shotguns found in the defendant’s car, and a sack containing .32, .22 and shotgun shells.

The defendant did not testify.

There was evidence offered by the defense which contradicts the fact that the defendant was armed when he entered the hospital and that the decedent and his father were armed and started beating the defendant, and in the ensuing struggle the guns went off, resulting in Jerry Campbell’s demise.

The verdict of the jury has accredited the theory of the state, that is, that the defendant, with a pistol, shot and killed the unarmed decedent. We will not disturb this fact finding of the jury unless the evidence preponderates against his guilt and in favor of his innocence, see McBee v. State, 213 Tenn. 15, 19, 20, 372 S.W.2d 173. We think the evidence is sufficient to support the verdict. The defendant was armed; he was seen to shoot the decedent; he stated he meant to shoot the rest of them (Campbells); he stated “he shot me, I shot him.” The use of a deadly weapon supports the requisite malice necessary to support murder in the second degree. See Witt v. State, 46 Tenn. 5, 8; Foster v. State, 74 Tenn. 213, 216.

His use of the pistol coupled with his statements amply support the jury’s finding that his acts evinced a malignity of heart and spirit when he fired the fatal shot. The assignments relating to the evidence are accordingly overruled.

The next assignment he urges the trial court erred in overruling his motion to quash the indictment because it was founded on hearsay testimony and did not have the proper prosecutor as required by law.

We think his motion being made after the jury was sworn came too late, see Brooks v. State, 156 Tenn. 451, 453, 454, 2 S.W.2d 705. The sufficiency of the evidence before the grand jury, as raised here, has been preempted, see Parton v. State, 2 Tenn.Cr.App. 626, 455 S.W.2d 645, 648. The question presented here is properly raised by a plea in abatement and not a motion to quash, see Wireman v. State, 146 Tenn. 676, 680, 244 S.W. 488; Smith v. State, Tenn.Cr.App., 517 S.W.2d 757, 759. The sheriff was listed on the indictment as the prosecutor, but that duty of the district attorney is dispensed with in cases as here of willful murder, see T.C.A. 40-1705(2). These assignments are without merit and overruled.

In unbriefed assignments, see Rule 17 of this court, he contends the court erred in allowing Joe Helton, T.B.I. agent, and Pete Bauldin, the investigator for the district attorney, to testify in rebuttal as to matters which should have been presented in the state’s proof in chief. We find no abuse of the trial court’s discretion in allowing this rebuttal testimony, see Dezarne v. State, 4 Tenn.Cr.App. 209, 470 S.W.2d 25, 27. These unbriefed assignments, see Rockett v. State, Tenn.Cr.App., 475 S.W.2d 561, 563, are overruled.

In another unbriefed assignment, see Rule 17 of this court, he contends the court erred in allowing the district attorney to cross examine his witness Virgil Campbell about traffic accidents, misdemeanors and other charges. We find no error in view of prompt objection and the sustaining of these objections by the trial court, see Turner v. State, 188 Tenn. 312, 219 S.W.2d 188, 193. This assignment is overruled.

Lastly, he maintains there were such obvious discrepancies between the decedent father’s testimony and state witness Gary Dishman that there was therefore no credi-. ble proof that he shot the decedent. The jury has, by its verdict, settled this issue of credibility and discrepancies in the testimony, see Holt v. State, 210 Tenn. 188, 197, 198, 357 S.W.2d 57. It must be remembered that both witnesses testified that the defendant shot the unarmed decedent. This assignment is without merit and is overruled.

The judgment of the trial court is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


author: MOORE, Justice.

text:
    FIREMAN’S FUND AMERICAN INSURANCE COMPANY, Appellant, v. PATTERSON & LAMBERTY, INC., et al., Appellees.
    No. 837.
    Court of Civil Appeals of Texas, Tyler.
    July 31, 1975.
    Appellant’s First Motion for Rehearing Denied Sept. 11, 1975.
    Second Rehearing Denied Oct. 16, 1975.

      Touchstone, Bernays & Johnston, W. Richard Bernays, Dallas, for appellant.
    Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Jack Pew, Jr., Dallas, for appellees.
   MOORE, Justice.

This is an appeal from an order granting a summary judgment. Appellant, Fireman’s Fund American Insurance Company, brought suit against Patterson & Lamberty, Inc., a Professional Corporation for the practice of law, and attorneys J. Redwine Patterson and Edwin J. Lamberty, Jr., individually, for damages in the amount of $9,093.50 allegedly sustained by Fireman’s Fund as a result of legal malpractice on the part of Edwin J. Lamberty. As grounds for a cause of action, Fireman’s Fund alleged that on April 14, 1970, it was the insurance carrier for Ramada Inns, Inc. of Irving, Texas, insuring Ramada against loss from fire as well as public liability coverage; that a fire occurred in one of Ramada’s motel rooms causing damages to the motel and that as a result of the damage it paid the sum of $3,384.31 in settlement of the claim and took a subrogation agreement authorizing it to recover against those responsible for the fire. Upon investigation, it was determined that the fire was caused by a defective television set manufactured by General Electric Company. Fireman’s alleged that it employed appellees for the purpose of prosecuting its subrogation claim against General Electric. Thereafter, a compromise settlement was reached whereby General Electric paid Fireman’s the sum of $3,000.00. Fireman’s alleged that in consummating the agreement, Edwin J. Lamberty, Jr. exceeded his authority and was guilty of negligence in executing- and delivering to General Electric a release which contained an indemnity agreement; that thereafter on September 13, 1971, Sadie Coughlin, a tenant in the room damaged by fire, brought suit against Ramada and General Electric seeking to recover $16,-985.61 for clothing and personal effects destroyed by the fire and that as a result of the Coughlin suit judgment was rendered against Ramada and General Electric jointly and severally for $9,000.00, which Fireman’s in its capacity as liability carrier for Ramada paid, thereby discharging Ramada and General Electric of liability. Fireman’s Fund further alleged that the negligent conduct of appellee, Lamberty, in giving General Electric an indemnity agreement deprived Ramada (and Fireman’s as subro-gee of Ramada) from recouping from General Electric the sum of $9,093.50 paid by Fireman’s in discharging the Coughlin judgment. Appellees answered with a general denial and affirmatively alleged that Fireman’s suffered no loss by reason of appellees’ alleged malpractice because Fireman’s (as subrogee of Ramada) filed a cross-claim in the Coughlin suit and recouped its loss by recovering a judgment over and against General Electric, and having refused to levy execution thereon, Fireman’s was not entitled to recover against appellees.

The case came on for hearing before the trial court upon appellees’ motion for summary judgment under Rule 166-A, Texas Rules of Civil Procedure. As grounds for a summary judgment, appellees alleged that the pleadings, depositions, exhibits and other summary judgment evidence conclusively establishes that despite the indemnity agreement, Fireman’s Fund recovered a judgment over and against General Electric in the Coughlin suit, and since Fireman’s deliberately refused to levy execution thereon, the evidence conclusively shows that Fireman’s suffered no damage as a result of the alleged malpractice. Therefore, appellees alleged that since Fireman’s suffered no damages, one of the essential elements of its cause of action was lacking and that appellees were entitled to a judgment as a matter of law. After a hearing, the trial court entered an order granting appellees a summary judgment, from which judgment Fireman’s Fund perfected this appeal.

We affirm.

Appellant, Fireman’s Fund, seeks a reversal on the ground that the record creates numerous disputed fact issues which can be determined only by the court or jury. In reply, appellees maintain that the judgment may be sustained on the ground that the summary judgment proof establishes as a matter of law that no genuine issue of fact exists upon one of the essential elements of Fireman’s cause of action since the proof conclusively shows Fireman’s suffered no damages.

The last sentence of paragraph (c) of Rule 166-A, Texas Rules of Civil Procedure, providing for summary judgments provides as follows: .

“ * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In determining the propriety of a summary judgment in favor of a defendant, the question to be determined on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup., 1970).

The ordinary rule that negligence is actionable only where it is the proximate cause of the damages complained of is usually applied in actions against attorneys for malpractice. Lynch v. Munson, 61 S.W. 140 (Tex.Civ.App., 1901); Patterson and Wallace v. Frazer, 79 S.W. 1077 (1904), 45 A.L.R.2d Sec. 5, pp. 19-22. A client claiming negligence on the part of his attorney has the burden of proving that damages resulted. Lynch v. Munson, supra. The specific question to be determined in the instant case is whether the summary proof negates this essential element of Fireman’s cause of action.

The facts are not in dispute. They are essentially the same as the facts set forth in the pleading delineated above. In order to properly understand the situation, a detailed discussion of some facets of the case will be necessary.

The record reveals that several months after appellee Lamberty delivered to General Electric the release containing the indemnity agreement, a suit was instituted in the 116th District Court of Dallas County by Sadie Coughlin and Paul Coughlin against Ramada Inns and General Electric. In that suit, the plaintiffs sought judgment against Ramada and General Electric for damages in the amount of $16,985.61 for the loss of clothing and other personal effects caused by the fire in the motel room. Fireman’s Fund, being the liability carrier for Ramada and the indemnitor of General Electric by reason of the contract executed ■by its attorney Lamberty, assumed the defense of the case on behalf of both Ramada and General Electric, being represented by Mr. Richard Bernays, Fireman’s attorney in the cause.

Thereafter, Mr. Bernays filed a “First Supplemental Answer” in the Coughlin case, alleging that the General Electric television set was defective and unreasonably dangerous and was the cause of Mrs. Coughlin’s damages, so that,

“ * * * if any judgment be had against Ramada Inns herein it should recover over and against General Electric Company the full amount thereof for which it prays.”

On March 23, 1972, the Coughlin suit came on for trial. What transpired is set out in the judgment, as follows:

“Be it remembered that on the 23 day of March, 1972, came on to be heard the above styled cause, when appeared the plaintiffs, in person and by their attorneys, and the defendants by their attorneys and announced to the Court that they would waive a jury and submit the matters of fact as well as of law to the Court, except that the parties had agreed that the plaintiffs damages should be found to be $9,000.00, and the court having heard and considered the evidence is of the opinion that the law and the facts are in favor of the plaintiff and against the defendant and further that Ramada Inns should have judgment on its prayer over and against General Electric Company and full indemnity from General Electric Company;
“It is accordingly ORDERED, ADJUDGED and DECREED by the Court that the plaintiffs, Sadie Coughlin and her husband Paul Coughlin, recover of and against Ramada Inns and General Electric Company their damages in the sum of $9,000.00, together with costs of court.
“ * * * And it further appearing to the Court that this judgment has been paid and satisfied in full, it is ORDERED that no execution issue except for court costs for which execution may issue if necessary.” (Emphasis supplied.)

While we have no way of knowing the basis upon which the summary judgment was rendered in favor of appellee, it appears that the trial judge would have been justified in concluding that even if appellees were guilty of malpractice as alleged, the summary judgment proof showed as a matter of law that Fireman’s suffered no damage or loss as a result of the malpractice because it had recouped all of its loss in the action over against General Electric in the Coughlin suit. The judgment in the Coughlin suit recites that “this judgment has been paid and satisfied in full.” This means that not only had the Coughlin judgment been satisfied, but also that Ramada’s (Fireman’s) judgment over against General Electric for $9,000.00 and court costs had been fully paid and satisfied. Nowhere in Fireman’s pleadings does it seek to avoid the entry of satisfaction nor was it alleged that such entry fails to speak the truth. On the contrary, Fireman’s apparently relies thereon since the entire judgment was incorporated in its pleadings. There is nothing in the summary judgment proof suggesting that the entry of satisfaction was the result of fraud, accident or mistake. Upon the record before us, we are compelled to conclude that Fireman’s Fund, as subrogee, having recovered its entire loss from General Electric, suffered no damage or loss as a result of appellees’ alleged malpractice. Consequently, since the undisputed proof negates the essential element of damages, appellees were entitled to a summary judgment.

In reaching the foregoing conclusion, we recognize that both parties to this appeal have briefed the case on the assumption that General Electric has never paid or discharged Ramada’s judgment over against it. Nevertheless, the Coughlin judgment, together with the recitals made therein, constitutes a vital part of the summary judgment proof. The entry reciting satisfaction in full stands unchallenged. In these circumstances, we believe the recitation is controlling.

The judgment of the trial' court is affirmed.

ON MOTION FOR REHEARING

Appellant asserts on Motion for Rehearing that this Court erred in considering the recitals of the judgment rendered in the case of Coughlin v. Ramada and General Electric because the same was not a certified copy or otherwise properly authenticated copy as required by Rule 166-A. We find no merit in this contention. The record reveals that Fireman’s incorporated a copy of the judgment in its petition. Since Appellant made the judgment a part of its pleadings, the judgment was properly before the trial court whether authenticated or not. The record further reveals that a copy of the judgment was introduced into evidence in connection with the deposition testimony of Robert M. Blair, Fireman’s Claims Supervisor. Since the judgment was introduced as a part of the deposition, we think the lack of authentication was a mere formal deficiency which should have been raised in the trial court and may not be raised for the first time on appeal. Youngstown Sheet & Tube v. Penn, 363 S.W.2d 230 (Tex.1962).

Appellant further asserts that this Court erred in affirming the summary judgment on a “ground” directly contradicted by Ap-pellees’ Brief in which Appellees assert: “It is undisputed that the judgment is valid and could be executed upon, but upon the advice of Mr. Bernays, Fireman’s Fund has deliberately withheld execution.” (Emphasis added by Appellant.) We overrule the contention.

Our decision affirming the summary judgment was not made on the basis of Appellees’ contention that Ramada (Fireman’s) could have levied execution on the judgment. Our decision was made to rest upon the uncontradicted recital in the Coughlin judgment showing that it had “been paid and satisfied in full”. While Appellees’ grounds for summary judgment are somewhat confusing, we think it apparent that Appellees intended to rely upon the judgment as conclusive proof of the fact that Fireman’s had not in fact suffered any loss. In any event, where it “affirmatively appears from the pleadings, admissions, depositions and affidavits that there is no issue as to any material fact upon which the outcome of the litigation depends, then summary judgment is the proper remedy even though it be granted upon a ground different from that specified in the motion.” In re Price’s Estate, 375 S.W.2d 900 (Tex.1964). See also Phil Phillips Ford, Inc. v. St. Paul Fire & Marine Insurance Co., 465 S.W.2d 933 (Tex.1971); Navarro v. Secret Harbor Farms, Inc., 506 S.W.2d 337 (Tex.Civ.App., Houston (1st Dist.) 1974, writ ref’d n. r. e.).

The record before us conclusively shows that the Coughlin judgment had been “paid and satisfied in full”. If the recital in the judgment is correct, and we must assume it is, then the record conclusively shows that Ramada recouped its entire loss from General Electric. Consequently, Appellees alleged malpractice did not cause Fireman’s to suffer a loss and as a result Fireman’s would have no cause of action against Ap-pellees. Appellant’s Motion for Rehearing is overruled.

      . Hereinafter referred to as “Fireman’s” or “Fireman’s Fund."


author: ELLIS, Chief Justice.

text:
    Charles Ray OLDAKER, Appellant, v. LOCK CONSTRUCTION COMPANY et al., Appellees.
    No. 8550.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 29, 1975.
    Rehearing Denied Oct. 14, 1975.

      Splawn Law Offices, Inc., Carroll Cobb, Lubbock, for appellant.
    Little & Little, Jack Little, Big Spring, Key, Carr, Evans & Fonts, Donald M. Hunt, Crenshaw, Dupree '& Milam, Lubbock, for appellees.
   ELLIS, Chief Justice.

Plaintiff, Charles Ray Oldaker, brought suit for damages for personal injuries sustained when a joint of oil field line pipe struck him while the pipe was being loaded onto the tractor-trailer tandem rig which he drove for Billy Walker Trucking Company. Billy Walker Trucking Company was requested by defendant, CP Construction Company, to deliver line pipe to a pipeline construction site in eastern New Mexico. CP Construction Company was under a written contract with defendant, Mobil Pipeline Company, to construct the pipeline. The site of the alleged injury was the Mallet Tank Farm, an oil field equipment facility maintained by Mobil Pipeline Company near Sundown, Hockley County, Texas. Defendant, Lock Construction Company, was under contract with Mobil Pipeline Company to clean and rework oil field pipe for reuse.

At the conclusion of plaintiff’s evidence, the trial court withdrew the case from the jury and rendered judgment that the plaintiff and intervener, Hartford Insurance Company, take nothing by their suit on the basis of defendants’ motions for instructed verdict. Affirmed.

Plaintiff-appellant predicates his appeal on one point of error urging in effect that the trial court erred in holding that no question of fact of actionable negligence, upon which the appellant’s case is premised was raised by the evidence. Defendants-appellees respond, initially, with a motion to dismiss the appeal for want of jurisdiction because of failure to timely file the transcript and statement of facts, or, in the alternative to strike the statement of facts as untimely filed. Appellees further respond with various counterpoints.

Under the provisions of Tex.R.Civ.P. 386 appellant filed a motion to extend time to file the transcript and record on November 22,1974, seventy-four days after appellant’s motion for new trial was overruled by operation of law. Tex.R.Civ.P. 329(b). Appellant’s motion was granted the same day as filed extending the time to file the transcript and statement of facts to November 29, 1974, a period of seven days.

On November 26, 1974, the transcript was received and filed by the clerk of this Court; the statement of facts was received by the clerk on December 2, 1974 in an envelope postmarked November 27,1974. The transcript and statement of facts were deemed filed within the extended period, even though the statement of facts was not received by the clerk until after the expiration of the extended period. Tex.R.Civ.P. 5, 386.

Since appellant’s motion was timely filed under Tex.R.Civ.P. 386, a consideration of the grounds asserted therein was left to the sound discretion of this Court to determine whether good cause was presented to grant the motion. Patterson v. Hall, 430 S.W.2d 483 (Tex.1968); Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585 (1940). Whether good cause exists is a factual determination based upon all the peculiar circumstances surrounding the delay in filing, and the recognized basis for setting aside such a determination is upon the establishment of arbitrary action or an abuse of discretion. Patterson v. Hall, supra; Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965).

In applying Rule 386 to the facts it is proper that we seek to avoid a narrow construction to the end that the appeal can be heard on the merits. Parks v. Purnell, supra; Novosad v. Clary, 431 S.W.2d 422 (Tex.Civ.App.—Houston [1st Dist.] 1968, writ dism’d). Particularly, a narrow construction will be avoided where excuse of the delay will not cause harm to any party. City of Corpus Christi v. Gregg, 267 S.W.2d 478 (Tex.Civ.App.—San Antonio 1954, no writ). In the instant case no harm is alleged to have resulted from the granting of appellant’s motion to extend time to file.

By sworn statement contained in the motion to extend time, counsel for appellant related that on October 15, 1974, he mailed a properly executed written request for transcript with proper address and postage affixed, directed to the district clerk. By further statement of appellant’s counsel and by affidavit of the district clerk, on the following day, October 16, counsel had a conversation with the clerk concerning the transcript. In that same conversation, the district clerk indicated to counsel that the written request had not been received. Since it had been mailed on the previous day, counsel believed that it would soon be received by the clerk. In fact, the written request mailed by counsel on October 15 was not received, and, after the expiration of sixty days from the date appellant’s motion for new trial was overruled, the district clerk mailed the cost bill to counsel, the clerk having assumed that the appeal had been abandoned.

A second written request for the transcript was filed with the district clerk on November 21, 1974, the seventy-third day after motion for new trial was overruled.

We have examined many cases and have found none with facts analogous to the facts in this case. We have found in Harrison v. Benavides, 327 S.W.2d 610 (Tex.Civ.App.—San Antonio 1959, no writ), that the question of jurisdiction has been conveniently divided into three categories as follows:

(1) Where the record has not been filed in this Court within sixty days from the date of judgment and no motion is filed within seventy-five days, or a motion having been granted, the record is not filed within the time allowed under the terms of the order; (2) where the motion, together with the affidavits, shows on the face of the record that the transcript and/or statement of facts, as the case may be, could have been filed within the time allowed by the rule, and thus the motion is insufficient as a matter of law; (3) where the record has not been filed within the sixty-day period provided by Rule 386, T.R.C.P., but a motion has been timely filed which attempts to show “good cause” why the record could not be filed within the sixty-day period, thus presenting a fact issue to be determined by the Court of Civil Appeals.

The facts of the instant case do not fall within either of the first two categories. Here, a timely motion was filed which raised a fact issue of good cause, i. e., why the transcript could not be filed within the sixty-day period under Rule 386. Certainly, the motion and affidavit do not show on the face of the record that the transcript could have been filed within the sixty-day period. The district clerk did not receive a written request for preparation of the transcript until after the expiration of the sixty-day period. We do not, in the instant case, have facts that show the transcript was completed and ready to be filed before the expiration of the sixty-day period.

The Supreme Court in Patterson v. Hall, supra, focused on the distinction between fact situations as under Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952), category (2) above, where the transcript or statement of facts was in the counsel’s possession, ready to be filed, but was not timely filed, and fact situations such as the instant case where counsel did not have the transcript in his possession within the sixty-day period, and therefore, could not have filed the same within that period. The Supreme Court went on to hold that the Court of Civil Appeals in Patterson was in error in holding as a matter of law that since the appellants did not show that they could not have obtained the statement of facts for filing within the sixty-day period, they failed to show that they could not have filed the statement of facts within the required period.

The Court in Patterson further stated that appellant must promptly request the preparation of the statement of facts after giving notice of appeal. The same rule of promptness applies to the time for requesting the preparation of the transcript in the instant case. Tex.R.Civ.P. 376. However, the determination of “promptly” is not limited by any fixed number of days; rather, it is a determination made upon relative factors. The rule of promptness restated in Patterson is one of reasonable time when all attendant facts and circumstances surrounding the act to be performed are considered. The Court in Patterson avoided the application of a narrow and arbitrary meaning of the word “promptly.” The Court instead reiterated that the Court of Civil Appeals “. has a duty to decide, in the light of all attendant facts and circumstances, the preliminary question of whether the request for the record was made within a reasonable time after notice of appeal was given.” Patterson v. Hall, supra, at 486. This duty to decide calls upon the sound discretion of the Court to make a determination which has some rational basis in fact.

We recognize that appellant’s counsel did not exercise exemplary diligence in all respects. However, we note that upon becoming cognizant of the true situation and since the seventy-five day period had not expired, appellant’s counsel proceeded to again make written request to the district clerk to prepare the transcript and to seek the extension of time which was granted.

We believe that from a full consideration of all the peculiar circumstances of this case, including the absence of a showing of harm, it has not been established that this Court acted arbitrarily or abused its discretion in granting the extension.

Alternatively, appellee asks that the statement of facts be stricken as untimely filed. It is well settled that timely filing of the transcript confers jurisdiction on the Court of Civil Appeals to consider the appeal even if the statement of facts is never filed. Root v. Hester, 309 S.W.2d 480 (Tex.Civ.App.—Eastland 1958, writ ref’d); Franke v. Franke, 378 S.W.2d 891 (Tex.Civ.App.—Corpus Christi 1963, no writ); Darden v. Davies, 217 S.W.2d 892 (Tex.Civ.App.—Amarillo 1949, no writ); Reynolds, Texas Rules of Civil Procedure 385 and 386: Whether to Extend the Definitive Time for Filing the Appellate Record, 4 Tex.Tech.L. Rev. 1 (1972).

The filing of the statement of facts is not jurisdictional. Even though the statement of facts may have been “ready” within the sixty-day period, the filing thereof within such period would have been of no avail since it was the timely filing of the transcript that invoked appellate jurisdiction. Also, the motion for extension included, and the granting thereof was effective as to both the transcript and the statement of facts. Embry v. Bel-Aire Corporation, 502 S.W.2d 543 (Tex.1973); Figari, Texas Civil Procedure, 28 Sw.L.J. 248 (1974).

Appellees’ motion to dismiss for want of jurisdiction, or, in the alternative to strike the statement of facts, is overruled.

On April 8, 1972, plaintiff and George Wilson, a helper, known in the oil field business as a swamper, left the Billy Walker Trucking Company at Hobbs, New Mexico in a tractor-trailer rig en route to the Mallet Tank Farm in response to the previous request made by the owner of CP Construction Company. Plaintiff and his swamper and another Billy Walker truck driven by Lloyd Smith arrived at the Mallet Tank Farm at approximately the same time. A foreman and supervisor for CP Construction Company, James A. Smith, met the men from Billy Walker Trucking Company, directed them into the yard and located the designated pipe to be loaded. Lloyd Smith’s truck was loaded first, by hand, the pipe being rolled onto the trailer or float from a piperack. The pipe was in forty or forty-five foot joints with an inside diameter of four inches. Each joint weighed about 320 pounds, and the pipe was laid on the truck in layers, stacked six or seven layers high when fully loaded. The pipe was held in place on the flat surface of the float by steel weevil pins which were about twelve inches high placed along each side of the float in sockets provided for that purpose. Two or three weevil pins were placed on each side of the float to prevent the loaded pipe from rolling off.

The pipe that was to be loaded onto the plaintiff’s truck was not stored on a rack, but was lying on the ground. Mobil had requested that Lock furnish a caterpillar-type tractor equipped with a side boom, and an operator for the tractor, to load the pipe onto the Billy Walker trucks. An A-shaped boom was attached to the side of the tractor, and a cable ran from a winch on one side of the tractor through a pulley at the top of the boom on the opposite side of the tractor. At the end of the cable which hung from the pulley was a hook to which the bundle of four, five or six joints of pipe was attached by wrapping the cable and a securing chain, made of four or five-inch links, around the bundle of pipe. The bundle of pipe was held, nearly balanced, at the center of the load. The operator of the side boom loader by means of a power driven winch lifted the load of pipe off the ground high enough to pass over the back end of the float, the side boom loader passing along the side of the float until the pipe hung about one or one and one-half feet over the front of the float. After the pipe was lowered into position on the float of plaintiff’s truck, the cable was loosened so that the securing chain could be pulled out from underneath the load of pipe.

At the time plaintiff’s truck was being loaded with the side boom loader, plaintiff and his swamper, George Wilson, were standing on the back of the truck tractor between the front of the float and the cab of the truck. Oldaker and Wilson were positioned to aid in straightening and stacking the pipe on the float after it had been lowered by the side boom loader. Two or three layers of pipe had been positioned on the float by operation of the side boom loader aided by Oldaker and Lloyd Smith who were using lengths of pipe called cheater pipes to pry loose the pipe joints from the bundle so that they could be shifted into position on the float. Lloyd Smith was standing behind the float near the opposite end from which Oldaker stood. The swamper’s job was to pull the chain from around the pipe when the side boom operator loosened the cable. A knot in the cable held the chain to the cable. After the chain and cable were unhooked, the side boom operator pulled the chain and cable out from under the bundle of pipe. It was during this particular stage of the loading process, as the knot in the cable was being pulled up, that a joint of pipe at the top of the bundle rolled off the bundle and caught on the weevil pin at the center of the side of the float nearest the side boom loader. The far end of the pipe from Oldaker struck the ground, and the near end at the same time bounced up striking Oldaker about the head. As Oldaker sank to a crouching position, apparently unconscious, Lloyd Smith and George Wilson caught him and lifted him off the truck before he fell to the ground.

The pleadings on which plaintiff went to trial alleged that each of the defendants was guilty of negligence in six respects, the substance of which was that the defendants breached their duty to carry out the pipe loading operation in a reasonably safe manner and that the loading equipment used by the defendants was not adequate for the operation. Plaintiff further alleged that each of the above acts of negligence was a proximate cause of the injuries he sustained. Defendants answered by asserting voluntary assumption of risk, contributory negligence, borrowed servant and fellow servant doctrine, unavoidable accident, and causation unrelated to acts of defendants.

At the conclusion of plaintiff’s evidence, defendants presented a motion for an instructed verdict based upon the contentions, among others, that no evidence had been presented showing breach of a legal duty which was the proximate cause of plaintiff’s injuries.

Appellant contends that the pleadings and the evidence raise fact issues of duty, breach of that duty, and proximate cause that should have been submitted to a jury. Appellant correctly contends that on appeal from a judgment based on an instructed verdict, all the evidence and the inferences drawn therefrom, must be examined in the light most favorable to the party against whom the peremptory instruction was given. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Godwin v. Roberts, 213 S.W.2d 571 (Tex.Civ.App.—Galveston 1948, writ ref’d n. r. e.); Hotchkiss v. Texas Employers’ Insurance Ass’n, 479 S.W.2d 336 (Tex.Civ.App.—Amarillo 1972, no writ).

In order to raise issues for jury submission, the plaintiff must present evidence of probative force on all of the essential elements of a negligence cause. Plaintiff must establish that the defendant owed him a legal duty that was breached, proximately resulting in the injuries suffered by plaintiff. Cody v. Mahone, 497 S.W.2d 382 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.); Webb v. City of Lubbock, 380 S.W.2d 135 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.); White v. Jackson, 358 S.W.2d 174 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.).

Initially, the'appellant must establish that one or more of the appellees owed a legal duty to him that could have been breached. Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); Coleman v. Hudson Gas and Oil Corporation, 455 S.W.2d 701 (Tex.1970); McCall v. Marshall, 398 S.W.2d 106 (Tex.1965); Webb v. City of Lubbock, supra. The determination of the existence of a legal duty is a question of law for the court. Such a determination is based upon the facts surrounding the occurrence in question. Webb v. City of Lubbock, supra; City of Bryan v. Jenkins, 247 S.W.2d 925 (Tex.Civ.App.—Waco 1952, writ ref’d n. r. e.).

We note that the record supports appellant’s assertions that certain legal relationships existed between appellant and some or all of the appellees, and, although we recognize that these alleged relationships can give rise to legal duties not to create unreasonable risks of harm, in this ease the particular events which resulted in appellant’s injury were under the control of appellant.

It is undisputed that appellant or his swamper, George Wilson, gave the hand signals which guided the side boom operator in placing each pipe load on the float. It was Oldaker or his fellow employee Wilson who positioned the pipe load before it was lowered onto the float. It is further undisputed that Oldaker, and his fellow employees, George Wilson and Lloyd Smith, disengaged the hook and cable from the pipe load and pried the joints of pipe loose from the bundle to scatter them into place.

By appellant’s admission he was the person in authority with respect to the manner of loading his tractor-trailer rig. We note the testimony by James Smith, foreman for CP, that CP had the contractual responsibility with Mobil to secure the line pipe and see that it was moved to the construction site. Smith further testified that he understood that someone other than the drivers would load the pipe on the occasion in question. However, we believe that the determinative right of control in this case was with respect to the specific events constituting the loading operation. When asked whether he had the authority on the day in question to stop an unsafe loading procedure, appellant replied that he had such authority. Indeed, testimony from appellant was that it was customary in the oil field business that the truck driver was the one in charge of loading his own rig, and that if he does not want a joint of pipe loaded in a particular manner, it is the truck driver who directs the desired manner of loading. When asked whether appellant exercised his authority on the occasion in question, he replied that he did not, but upon further inquiry he admitted that he could have ordered the loading to be stopped if the procedure was unsafe.

There is testimony that the CP foreman designated the pipe to be loaded and directed the positioning of the Billy Walker trucks. There is also testimony that he helped tally or count the pipe that was loaded and that a Mobil employee assisted in picking up the first load of pipe. But there is no evidence that either of them exercised any authority over the loading and unloading of pipe or that the CP foreman would have refused to allow appellant or Lloyd Smith to use one of the Billy Walker trucks equipped with an A-frame type gin pole attachment behind the cab of the truck, which, appellant asserts, was the safer equipment for this type of loading operation. The testimony of Lloyd Smith was simply that the CP foreman would not respond when Smith asked to use the truck with gin pole attachment. There is no evidence that appellant could not have taken the initiative to use the truck with gin poles or have directed that the loading procedure be stopped altogether. The only testimony with reference to authority for loading safety is from appellant, admitting that he had such authority.

The furnishing of the side boom loader and operator by appellee, Lock, at the request of appellee, Mobil, did not impose upon them a legal duty since both the loader and the operator followed the directions given by appellant or George Wilson throughout the loading process. We find that no affirmative action had been taken by any of appellees in connection with the loading process after appellant, Lloyd Smith and George Wilson undertook to direct the loading of appellant’s rig.

Under the facts in this case we hold that no legal duty of care was owed to the appellant by any of the appellees. Negligence is the failure to observe a legal duty. Where no duty exists, no legal liability can arise on account of negligence. McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.—Tyler 1974), writ ref’d n. r. e. per curiam, 518 S.W.2d 528 (Tex.1975); Cody v. Mahone, supra; Reeves County Gas Company v. Church, 464 S.W.2d 489 (Tex.Civ.App.—El Paso 1971, no writ).

Since the existence of a legal duty is a condition precedent to the establishment of negligence, and, we have found “no duty,” it is not necessary to reach questions regarding other elements of actionable negligence. However, in the event it should be determined that there was a breach of a legal duty owed to the appellant by any of the appellees, we would hold that the evidence in this case fails to raise a fact issue of proximate cause.

In order to impose liability, on any party, at trial appellant had the burden of proving the breach of duty and its causal connection with his injuries. Glenn v. Prestegord, supra; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). The mere fact of duty, breach and subsequent injury cannot establish proximate cause. Bowles v. Bourdon, supra. Proximate cause must be proved as a vital fact by evidence of probative force. Thoreson v. Thompson, 431 S.W.2d 341 (Tex.1968); T-L Drilling Company v. Northern Propane Gas Co., 516 S.W.2d 710 (Tex.Civ.App.—Corpus Christi 1974, no writ); Calhoun v. Padgett, 409 S.W.2d 890 (Tex.Civ.App.—Tyler 1966, no writ).

Proximate cause consists of two elements: cause in fact and foreseeability. Both elements must combine to establish proximate cause. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Enloe v. Barfield, 422 S.W.2d 905 (Tex.1967); Baumler v. Hazelwood, 162 Tex. 361, 247 S.W.2d 560 (1961). Even if we assume that testimony established that the side boom loader was inadequate for the loading operation creating an unreasonable risk of harm that was or should have been foreseen by one of more appellees, appellant still must show cause in fact, i. e., that but for the use of the side boom loader, the accident would not have occurred. Baumler v. Hazelwood, supra. From a review of the evidence in the light most favorable to appellant’s position, we find no evidence of probative force to raise an issue of cause in fact.

The crux of appellant’s argument is that the use of the less preferred side boom loader rather than the more preferred gin pole equipment, even after he had expressed his concern to Lloyd Smith, and Lloyd Smith had expressed his concern about the use of the side boom to the CP foreman, was the cause in fact of his injuries. To complete the requisite elements of proximate cause, appellant must show that each of the appellees against whom he seeks recovery should have foreseen an unreasonable risk of harm in using the side boom loader for the loading of pipe from the ground in the Mallet Tank Farm. The evidence in the record would allow a jury to do no more than to speculate that the use of the side boom loader caused the joint of pipe to bounce and strike Oldaker and that if the side boom loader had not been used, the joint of pipe would not have struck Oldaker. Baumler v. Hazelwood, supra.

Oldaker testified that weevil pins were in place along the side of the float nearest the side boom loader. The weevil pins were not extended by the addition of cheater pipes, but according to Lloyd Smith, the height of the weevil pins, alone, was greater than the height of the last layer of pipe loaded. In fact, the center pin did catch the joint of pipe that struck Oldaker causing one end to bounce and the other end to strike Oldaker. Appellant argues that because the side boom was approximately two and one-half feet from the edge of the float, or at least was not resting against the edge of the float, the falling joint was not halted as it spun against the center weevil pin.

Although the evidence is plain that the side boom did not catch the falling pipe, testimony that the gin poles would have rested against the float and thus would have caught the bouncing pipe is only speculation after the fact and does not constitute evidence of probative force. Such contention by the appellant relates to the manner of operation of the loader rather than to its inadequate design, and is susceptible only of speculation by a jury that different equipment would have been operated in a different manner. The use of the truck with gin pole equipment could just as likely have allowed the pipe to bounce to the ground since the results of the procedure would depend upon the manner of operation.

We observe from the record, including the various exhibits, that the width of the side boom which was narrower than the width of the gin poles was of no consequence, and thus not determinative with respect to this accident, since the pipe struck the center weevil pin and the ground without reaching the entire distance from the float where the side boom was located. In addition, the joint of pipe, which spun on top of the bundle of pipe as the cable was pulled out, could with equal probability have fallen to the ground between the front of the float and the center weevil pin, where there would be no boom to break the fall regardless of which of the two types of equipment was used.

A possible cause of an injury becomes a probable cause only when, in the absence of other reasonable causal explanation, it becomes more likely than not that the injury was the result of such cause in fact. Since liability cannot rest upon speculation or conjecture, it is essential that the evidence show at least a reasonable probability that appellant’s injuries were caused by one or more of appellees’ negligence. Appellant must show more than a possibility that the use of the side boom loader was the cause in fact. Lenger v. Physicians’ General Hospital, Inc., 438 S.W.2d 408 (Tex.Civ.App.—Fort Worth 1969) aff’d, 455 S.W.2d 703 (Tex.1970); Bellaire General Hospital, Inc. v. Campbell, 510 S.W.2d 94 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

Even if the question of proximate cause were reached, we would hold that the testimony offered in support of appellant’s assertion that but for the use of the side boom loader the accident in question would not have occurred, does no more than raise a surmise or suspicion of cause in fact, Lenger v. Physicians’ General Hospital, Inc., supra; Green v. Texas & P. Ry. Co., 125 Tex. 168, 81 S.W.2d 669 (1935), and that such evidence is, in legal effect, no evidence. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Hamill v. Brashear, 513 S.W.2d 602 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.).

In view of the foregoing, it is our opinion that no fact issue as to actionable negligence was raised and that the court properly withdrew the cause from jury consideration and entered the take-nothing judgment. Appellant’s point of error is overruled.

For the reasons above stated, the judgment of the trial court is affirmed.