author: REAVLEY, Justice.

text:
    GENERAL MOTORS CORPORATION et al., Petitioners, v. R. M. HOPKINS, Jr., Respondent.
    No. B-5986.
    Supreme Court of Texas.
    Feb. 23, 1977.
    Rehearing Denied April 13, 1977.

      Vinson, Elkins, Searls, Connally & Smith, Harry M. Reasoner, Francis E. McGovern, II and Eleanor S. Glass, Houston, Frazer F. Hilder and Thomas W. Watkins, Detroit, Mich., W. Page Keeton, Austin, Barrow, Bland & Rehmet, Vincent W. Rehmet, Houston, for petitioners.
    Kronzer, Abraham & Watkins, W. W. Watkins and W. James Kronzer, Houston, for respondent.
   REAVLEY, Justice.

Robert M. Hopkins, Jr., was badly hurt when his 1970 Chevrolet pick-up truck failed to keep to the road on a sharp turn and capsized. He contends in this products liability suit that the accident occurred because the driver lost control of the speed of the truck when the secondary butterfly valves of a defective carburetor were locked in an open position. The jury found that the carburetor was defectively designed and that this defect was a producing cause of the accident. Among its defenses General Motors Corporation contended that any malfunction of the carburetor was due to changes in the mechanism effected by Hopkins in the course of its removal and reins-tallation upon the motor of the truck. The jury found that there had been “misuse” of the carburetor by Hopkins and that this was a producing cause of the accident. The trial court disregarded the findings relative to misuse and rendered judgment for Hopkins. The Court of Civil Appeals affirmed, deciding that there was evidence to support all of the jury’s findings, but holding that misuse which is only a concurring cause of plaintiff’s damages is no defense for the manufacturer of a defective product. 535 S.W.2d 880, (Tex.Civ.App.). We affirm the judgment for Hopkins.

DEFECTIVE DESIGN

The quadrajet carburetor installed on the new Chevrolet truck when Hopkins bought it in 1970 has two primary valves and barrels through which air and gasoline are fed into the intake manifold and the cylinders of the engine according to direct control from the accelerator pedal. Maximum acceleration and fuel flow is obtained by opening the two secondary valves and barrels, which is accomplished when the driver presses the pedal some two-thirds of the distance down toward the floorboard. If the secondaries are opened while the engine is being started cold, however, the mixture and flow of fuel and air may not be suitable. A lock-out system is designed to prevent this. By that design until the engine is warm a lock-out lever holds a lock-out pin down and thereby prevents the secondary throttle shaft from turning. The evidence offered by Hopkins, which evidence supports the jury findings of design defect and of that defect as a cause of the accident, tended to prove that the lock-out pin hung on top of the lock-out lever — jamming the secondary valves one-third open and feeding a large quantity of fuel into the engine beyond any means of control by the driver (unless he turned off the ignition). GM has argued that the lock-out pin could not possibly hang on top of the lock-out lever when the engine was warm and in operation. Assuming the truth of the evidence in support of the jury findings, as we must do, there is an abundance of proof here that this could and did happen. The lock-out lever can be moved by the bouncing of the vehicle on a rough road. If the accelerator is pumped down to rotate the lock-out pin upward and if the pin comes down when the lever is rotated underneath, the pin can hang — especially if there is a gritty substance on the adjoining surfaces. The circumstances of the road, the operation of the truck, and the action of its engine at the time of the accident all fit these conditions according to the testimony of Hopkins and the driver of the truck. The pin was found in a hung position over the lever upon examination of the carburetor following the accident. Furthermore, a similar malfunction had occurred, according to two witnesses, a few weeks before the accident. Although Hopkins and a mechanic saw the misposition of the lock-out pin and lever, they did not then realize its significance. This prior experience with the runaway carburetor occurred before the time when Hopkins operated his truck with a different carburetor; there is no evidence of his alteration or “misuse” of the GM carburetor prior to that occasion.

The evidence also tends to prove that GM knew of this problem as early as February of 1968. A picture taken in 1968 of this model carburetor with the lock-out pin positioned on top of the lock-out lever was obtained from GM files and introduced into evidence. Correspondence among GM engineers was also introduced which reflects the effort to make a change in the design to prevent this misposition and which states that these engineers considered the change to be an urgent safety matter. Plaintiff’s experts concluded that the hung lock-out pin caused the accident. We agree with the Court of Civil Appeals that the evidence supports the jury findings of design defect and of this defect being a producing cause of the accident.

ALTERATIONS BY HOPKINS

Hopkins bought the Chevrolet truck new on August 24, 1970. The first malfunction of the carburetor mentioned above occurred in the Spring of 1971. A few weeks after that occurrence Hopkins removed the GM carburetor and put a Holley carburetor on his truck. He kept the Holley on the truck for about a week and then removed it and reinstalled the original GM quadrajet carburetor. The accident occurred in June of 1971. GM contends that if the carburetor did malfunction, it was because of Hopkins’ alterations in the process of his removal and reinstallation of the GM carburetor. Eleven changes are named in the Court of Civil Appeals opinion, 535 S.W.2d 880, and include the use of improper bolts and hoses and clamps, etc. The jury found that the manner in which Hopkins reinstalled the carburetor constituted a misuse of the vehicle and that such misuse was a producing cause of the accident. These findings were disregarded by the trial court because, as stated in its judgment, they were “without any support in the evidence” and were “immaterial to the establishment of any defense.”

The Court of Civil Appeals found evidence to support the causal connection of only one change made by Hopkins in and around the carburetor. That Court pointed to the “testimony that when the choke rod was disconnected the choke could be ‘blown open’ under such circumstances that the lock-out pin could be positioned on top of the lock-out lever with the secondaries open” and concluded that the jury was entitled to find “that the disconnected choke rod was a contributing factor in the malfunction of the carburetor system.” 535 S.W.2d 887.

GM attempted to explain the accident in several ways. First, it said that the truck was simply driven too fast to negotiate the sharp turn. Neighbors in the area of the mishap testified to the noise made by the truck on the road before it reached the curve. Then GM offered some evidence which suggested that the Holley carburetor was still installed on the truck at the time of the accident. Finally and at great length, GM experts testified about the changes made by Hopkins in the reinstallation of the carburetor and how these changes might have been a factor in causing the accident. Almost all of this testimony tells of the possibilities of what could have happened. There is not the slightest suggestion that these changes could have played any role in the loss of control of the vehicle and its overturning apart from the uncontrolled racing of the engine described by Hopkins and the driver. The only explanation to be found in the evidence of this racing of the engine is the malfunction of the carburetor. No explanation is given which would permit common experience or knowledge apart from expert testimony to determine the reason for the malfunction of the carburetor. The jury and court must therefore depend upon the explanations and opinions of the experts. Under these circumstances testimony of a possibility without any opinion of the reasonable probability would not support a finding of causal connection. Webb v. Western Casualty & Surety Co., 517 S.W.2d 529 (Tex.1974).

All of the testimony about the possibilities (the blowing open of the choke because the rod was not connected or the binding of the valves because of protruding gasket or misalignment due to uneven pressure of the bolts after reinstallation, etc.) was admissible on the primary issue of the causal connection between an original defect of the product and this accident. For that matter, the evidence was admissible on the issue of causal connection between Hopkins’ alterations and the accident. Even if it may not be construed as an opinion that the two were probably related, the testimony is surely relevant. See Otis Elevator Co. v. Wood, 436 S.W.2d 324, 331 (Tex.1968). The testimony in this record about possible causes, while relevant, is no more than speculation and conjecture as to what occurred at the time of the accident and cannot alone support a finding that there was a causal connection between the “misuse” and the accident. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966). If the manufacturer or supplier of a dangerously defective product is to relieve himself of all or part of the liability for damages caused by the defect, then he must prove the cause-in-fact connection of any misuse or alteration by the same standard as the user faces in connecting the product defect and his damages.

At one point in the presentation of GM’s defensive evidence, the witness went further. The witness Arthur Van Stetlandt stated without qualification his opinion that if the lock-out pin did hang above the lockout lever, it was because the driver made an attempt to feed the engine and the misposition of the thermocoil cover (backwards and upwards) interfered with the operation of the lever. This is legally sufficient evidence of the cause-in-fact connection between the alteration and the accident. We have here then a case where an original product defect and the misuse of the product by the plaintiff-consumer concur to cause the damaging event.

“MISUSE” AS A DEFENSE WHEN A CONCURRING CAUSE

It is often said that misuse is a defense in products liability suits. Generally speaking this is true, because there are a variety of points upon which the unintended or reasonably unforeseeable use or alteration of a product may be relevant to the liability of the supplier of the product. The misuse may bear upon the issue of whether the product was defective when it left the hands of the supplier or the misuse may bear on the issue of what caused the harm.

We cannot charge the manufacturer of a knife when it is used as a toothpick and the user complains because the sharp edge cuts. A harness hook is not necessarily defective simply because it breaks while being used to hold up a 1700 pound weight. Dosier v. Wilcox & Crittendon Co., 45 Cal.App.3d 74, 119 Cal.Rptr. 135 (1975). There are a number of cases where the manufacturer installed or supplied a safety guard or shield but injury occurs after the purchaser of the machine removes or easts aside the safety device. The foreseeability of that deviation in the manufacturer’s intended use of the product is relevant to the basic question of whether the product was unreasonably dangerous when and as it was marketed. McGrath v. Wallace Murray Corp., 496 F.2d 299 (10th Cir.1974). It is because of cases in these areas that the draftsmen of the Restatement wrote the following in Comment (h) following § 402A:

(h) A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, as where a bottled beverage is knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too much salt is added to food, or from abnormal consumption, as where a child eats too much candy and is made ill, the seller is not liable. Restatement of Torts 2d § 402A(h) (1965).

Misuse in this application has been defined by the Oregon Supreme Court as “a use or handling so unusual that the average consumer could not reasonably expect the product to be designed and manufactured to withstand it—a use which the seller, therefore, need not anticipate and provide for.” Findlay v. Copeland Lumber Co., 265 Or. 300, 509 P.2d 28, 31 (1973).

There is a related question of the proof of the condition of a product as of the time when the prodúct left the hands of the defendant supplier. If the plaintiff has no evidence of a specific defect in the design or manufacture of the product, he may offer evidence of its malfunction as circumstantial proof of the product’s defect. See Williams v. Ford Motor Co., 411 S.W.2d 443 (Mo.App.1966); Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3rd Cir.1969). The age and use of that product during the time intervening between the purchase and malfunction will tend to support or defeat the circumstantial weight of the malfunction as proof of original defect. In a Pennsylvania case a load of steel pipe fell on the plaintiff when the brake locking mechanism of a crane failed. The record contained no proof of the crane’s defect except the malfunction itself, and the plaintiff contended that it was not necessary for him to present evidence of a specific defect to explain why the brake failed. His difficulty in this contention was that the machine had been in use for 20 years, that it was originally a shovel and had been converted into a drag-line and then into a crane, and that many changes and adjustments had been made in the brake bands and pedals and lock. The Court there speaks of identifying the cause of the failure, but it could just as well speak of the question of proof of original defect of the machine. Under the record both questions could not be answered except by speculation. The case was remanded, however, because the trial court erroneously excluded expert testimony as to a design defect of the brake mechanism. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974).

In many cases the question is solely one of causation. Whether an original defect is proved or whether that too depends upon the effect of subsequent use as in the Pennsylvania crane case above, causation must be established. Where plaintiff had added a fifth wheel to his tractor, the dis-positive question was whether that change had caused the accident. Dennis v. Ford Motor Co., 471 F.2d 733 (3rd Cir.1973). Where a pipe-bending shoe broke after structural changes in the shoe and while being used on a press different from the type for which it was designed, the trier of fact was required to resolve the causation problem. Mazzi v. Greenlee Tool Co., 320 F.2d 821 (2nd Cir.1963). Where a gas heater which exploded had been converted for propane gas, the question was the cause of the defect and explosion. Hales v. Green Colonial, Inc., 490 F.2d 1015 (8th Cir.1974). When a crane collapsed while lifting without the use of outriggers, the plaintiff admitted that he knew the manufacturer’s directions were to use the outriggers in lifting the heavy load, but he insisted that the outriggers were only for stability and would play no part in the manner in which the crane collapsed. The trial court had directed a verdict for the manufacturer for the reason that the crane was not used in the way it was intended to be used. The case was remanded for trial on the causation question. Kudelka V. American Hoist & Derrick Co., 541 F.2d 651 (7th Cir.1976).

The foregoing are illustrative of most of the cases where unforeseeable use or misuse are relevant to the liability of product suppliers. This is not to suggest that all statements of judges and writers can be so easily organized and summarized. To some courts misuse and contributory negligence are very similar. One opinion seems to hold that the use of strong drink by the driver of an automobile was a complete defense to a products liability suit — that being misuse though contributory negligence would be no defense. Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974); cf. Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976). Again, whether foreseeable or not, cars are not intended to be used in collision with other objects; it has been held that this exonerates the manufacturer despite damages due to a danger of his product which played no part in causing the collision. Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.1966). A larger list and discussion of the cases will be found in the following: 1 Frumer and Friedman, Products Liability § 15 (1971); Noel, Defective Products: Abnormal Use, Contributory Negligence and Assumption of Risk, 25 Vanderbilt L.Rev. 93 (1972); Anno. Products Liability: Alteration of Product After It Leaves Hands of Manufacturer or Seller as Affecting Liability for Product—Caused Harm, 41 A.L.R.3d 1251 (1972); Anno. Products Liability: Strict Liability in Tort, 13 A.L.R.3d 1057 (1967).

This brings us to our case: where an unreasonably dangerous defect of the product and its unforeseeable misuse are concurring causes of the damaging event. Does the injured user recover all or none or "a portion of his damages? We do not find the answer in precedents in Texas or elsewhere. Nor does the Restatement give us any guidance; section 402A comment h, quoted above, applies only where the product “is safe for normal handling and consumption.” That is not the case where the facts are that the product was defective — because of an unreasonably dangerous design, for example — and the defect is a producing cause of the injury.

We reject misuse as a defense where the product is dangerous for its foreseeable use and that danger is a producing cause of the injury of a bystander or a user who has not himself made some unforeseeable use of the product. On the other hand, product liability was never intended to take the place of insurance, and we see no justification for making the supplier reimburse the plaintiff for that portion of his own damages as he caused by a use of the product which the supplier would not have foreseen — and which use the plaintiff should have foreseen would create or increase the attendant danger. Reduction of the plaintiff’s recovery should be ordered where the misuse is a concurring proximate cause of the damaging event.

The defect of the supplier’s product need be only the producing cause of the harm for the supplier to be held liable. C. A. Hoover & Son v. O. M. Franklin Serum Co., 444 S.W.2d 596 (Tex.1969). His liability is not rested upon what he knew or should have known when he manufactured or sold the product; it rests on his placing into the stream of commerce a product which is demonstrated at trial to have been dangerous. The damaging event may not have been reasonably foreseeable at the time of manufacture or sale because the dangerous factor of the product might not then have been even reasonably knowable. The supplier would thus be free of culpability, but a price of his doing business is to protect people from danger from his products — or to pay. That is a heavy burden on the supplier, but the exposure is not infinite. The supplier is not liable so long as the product is safe for its foreseeable uses. He is not ordinarily required to bear the loss of a user who knows and appreciates the danger, has the opportunity to avoid the harm, but proceeds to use the product and thereby assumes the risk. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974). We decide now that the supplier should not be required to pay for all of the damages suffered by a user who contributed to the cause of his harm by unforeseeable handling of the product.

As indicated in the discussion above, contentions by the supplier relative to unforeseeable misuse of the product by the consumer usually bear upon the primary issues of defect and/or eause-in-fact of the damaging event. Where the supplier is unsuccessful in the contentions on those issues, he may interpose an affirmative defense and attempt to prove that the consumer plaintiff altered or misused the product in an unforeseen manner, that the misuse was a proximate cause of the damaging event, and that the misuse contributed to the cause of the event by a certain percent or fraction of the total contribution as between the product defect and the misuse.

It is essential that the supplier prove, as an element of this defense, that the consumer plaintiff should have reasonably anticipated as consequences of the misuse that the malfunction or injury, or some similar malfunction or injury, would occur. The harm must be reasonably foreseeable to the user if he is to be penalized. Suppose, for example, a young automobile buff such as R. M. Hopkins, Jr. makes an alteration in his carburetor which, though unforeseeable to the manufacturer, could be reasonably expected by one with Hopkins’ knowledge to risk some difficulties in the operation of his vehicle: for example, slow starts or flooding or sluggish acceleration. But suppose that this alteration does far more: the alteration makes it more likely that a defect of design or manufacture, which constitutes a danger in the normal and expected operation of the carburetor, will be activated and cause the vehicle to speed out of control. If the malfunction and damaging event are not reasonably foreseeable to the user, his misuse should not limit his recovery.

To recapitulate, if the product is found to have been unreasonably dangerous when the defendant placed it in the stream of commerce, and if that defect is found to have been a producing cause of the damaging event, and if the plaintiff has misused the product in the sense as defined by the trial court in its charge in the present case, and if that misuse is a proximate cause of the damaging event, the trier of fact must then determine the respective percentages (totalling 100%) by which these two concurring causes contributed to bring about the event. This comparison and division of causes is not to be confused with the statutory scheme of modified comparative negligence which bars all recovery to the plaintiff if his negligence is greater than the negligence of the parties against whom recovery is sought. Art. 2212a, Vernon’s Ann.Civ.St. (P.P. 1976-1977). The defense in a products liability case, where both defect and misuse contribute to cause the damaging event, will limit the plaintiff’s recovery to that portion of his damages equal to the percentage of the cause contributed by the product defect.

In the present case the defendant GM did not plead misuse of the product as a proximate cause, nor did GM object to the inquiry in special issue No. 4 of “producing cause,” nor has GM made any complaint in the course of the appeal on this ground. Further, GM sought no findings of the percent of the cause of the accident to be attributed to the misuse. Even if we were to say that from the defendant’s standpoint the case was tried on the wrong theory (or that GM might have pursued a different theory or contention with the present writing in hand), we cannot order a reversal and remand for a new trial unless we also find error in the trial court’s judgment. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.1963).

Finding no error in the judgments of the District Court and Court of Civil Appeals, they are affirmed.

YARBROUGH, J., not sitting.

      . The jury was instructed that “defective design,” as used in the charge, “meant a carburetor so designed . . . that it would create an ‘unreasonable risk of harm.’ ” Then: “You are instructed that by the term ‘unreasonable risk of harm’ as applied to the design of a product is meant that the product, as manufactured according to such design, threatens harm to persons using the product to the extent that any product so designed would not be placed in the channels of commerce by a prudent manufacturer aware of the risks involved in its use, and to the extent that the product so manufactured would not meet the reasonable expectations of the ordinary consumer as to safety.”
      The use of “and” here emphasized is of no consequence in the present case, but the proper definition would be disjunctive — using “or” rather than “and.” Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex.1974). The objective of the alternate test of unreasonable danger, i. e., from the vantage of the prudent supplier, is to avoid completely foreclosing liability because of either the visibility or the complexity of the alleged defect from the vantage of the consumer. See Keeton, Products Liability. The Meaning of “Defect” and the Manufacture and Design of Products, 20 Syracuse L.Rev. 559, 568 (1969); Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5, 15 (1965); cf., Keeton, Product Liability and Meaning of Defect, 5 St. Mary’s L.J. 30, 38 (1973). Because it is assumed that this hypothetical prudent supplier knows all of the risks of the use of the product revealed at the trial, this definition of unreasonable danger cannot be said to change a strict liability cause of action into one based upon the defendant supplier’s negligence.

      . “Misuse” was defined in the court’s charge as “a use of the vehicle in which it is mishandled in a way which the manufacturer could not have reasonably foreseen or expected in the normal and intended use of such vehicle.”

      . The trial court in the present case defined “producing cause” in the charge as “an efficient, exciting or contributory cause, which, in a natural and continuous sequence, caused in whole or in part the occurrence or injuries, if any, in question, and but for said cause the occurrence or injuries would not have occurred. There can be more than one producing cause, but there may be only one ‘sole producing cause’ of any occurrence.”

      . “Proximate cause” is defined as “that cause, which in its natural and continuous sequence, produces a result that would not have occurred but for such cause, and which said result or some like result ought reasonably to have been foreseen or anticipated in the light of the attending circumstances.” Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416 (1953).


source: Caselaw Access Project

author: GREENHILL, Justice. SAM D. JOHNSON, Justice,

license: Public Domain

text:
    Carroll NELSON, Petitioner, v. UNION EQUITY CO-OPERATIVE EXCHANGE, Respondent.
    No. B-6108.
    Supreme Court of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.

      J. Steven King, Fort Worth, for petitioner.
    Cantey, Hanger, Gooch, Cravens & Munn, S. G. Johndroe, III, Fort Worth, for respondent.
   GREENHILL, Justice.

The question in this case is one of first impression. It is whether the trial court was correct in finding that the petitioner, admittedly a farmer, was also a “merchant” within the meaning of the Texas Uniform Commercial Code [hereinafter Texas U.C. C.], Texas Business & Commerce Code, Section 2.201(b). The court of civil appeals upheld the trial court finding. 536 S.W.2d 635. We affirm.

Union Equity Co-operative Exchange, hereafter referred to as Union Equity, is a corporation engaged in the business of storing, merchandising, and exporting grain. It sued Carroll Nelson for damages arising from the breach of an oral wheat “forward” contract entered into by the parties on August 1, 1973. A “forward” or “futures” contract is one whereby the farmer agrees to sell his crop at a future date for a specified price. Union Equity alleged that this contract called for Nelson to deliver 5,000 bushels of wheat to the grain company by August 31, 1973. In return, he was to receive $3.56 for each bushel delivered. The grain company further alleged that Nelson had failed to perform his obligations under the contract, and that it had incurred damages in the amount of $6,500 as a result. Union Equity’s damages were sustained by reason of its having to acquire 5,000 bushels of wheat on August 31 at the then-prevailing market price of $4.86 per bushel. The sharp rise in the price of wheat appears to have occurred because of large grain purchases by the Soviet Union during this period.

Nelson entered a general denial to Union Equity’s allegations and pleaded the affirmative defense of the Statute of Frauds, Texas U.C.C. Section 2.201. Subsection (a) of that section states that contracts for the sale of goods with a purchase price of $500 or more may not be enforced unless the contract is in writing and signed by the person to be charged. Because it was undisputed that the contract upon which Union Equity sued was not in writing, it sought to avoid the operation of section 2.201(a) by relying on Section 2.201(b). That subsection sets out an exception to the Statute of Frauds general rule. It provides:

Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of Subsection (a) against such party unless written notice of objection to its contents is given within ten days after it is received. [Emphasis added.]

The word “merchant” is defined in Section 2.104 which is set out and discussed below.

Thus, if Union Equity established the existence of the oral contract, it could enforce that contract, despite the Statute of Frauds, upon a showing that the transaction fell within Section 2.201(b); and that, in turn, depends upon whether Nelson was a “merchant” as defined by the statute.

Trial was had to the court, which found that the parties had in fact entered into an oral contract during the course of a telephone call made by Nelson to Union Equity on August 1, 1973. The terms of the contract were found to be those alleged by Union Equity in its petition, and Nelson was found to have breached the contract by failing to deliver the wheat as promised. The trial court also found as fact that Union Equity had mailed a written confirmation to Nelson on August 1, that Nelson had received the confirmation, and that he had not given written objection to any of its terms within ten days of receipt. In its conclusions of law, the trial court found that the written confirmation was sufficient against Union Equity. It further found that both Nelson and Union Equity were “merchants” as that term is used in Section 2.201(b). Accordingly, the contract was enforced against Nelson, and judgment was rendered for the grain company.

After the court of civil appeals affirmed the trial court judgment, Nelson applied to this Court for a writ of error. In his application he asserted error in the trial court’s fact finding that Union Equity had mailed the written confirmation and in its conclusion of law that he was a “merchant.” We granted the application in order to consider the question of whether he was a “merchant” when he entered into the oral contract with Union Equity. Since the facts are undisputed insofar as they relate to Nelson’s status as a merchant, the question before us is one of law for the court to decide by applying the U.C.C. definition of “merchant” to the facts of the case. See Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976); Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975).

The Texas U.C.C. definitions of “merchant” and “between merchants” appear in Section 2.104. Section 2.104(a) states:

“Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

Section 2.104(c) states:

“Between merchants” means in any transaction with respect to which both parties are chargeable with the knowledge or skill of merchants.

The facts as they relate to Nelson’s occupation and as found by the trial court are undisputed. He is a lifelong Oklahoma resident and owns 1,200 acres of land near Mangum, Oklahoma. He grazes cattle on this land and has grown cotton and wheat there since at least 1967. He does not consume the crops he raises, but sells them for his livelihood. He brings in one wheat crop a year, and he has sold that crop annually since 1967.

Nelson is knowledgeable about the business of growing and selling crops, and he has made it his usual practice since 1967 to determine the best price obtainable for his crops. He stays abreast of the current market prices by listening to the market reports on the radio every day and by telephoning various grain dealers to get the current wheat price quotations. Prior to August 1, 1973, the date the oral contract the basis of this suit was made, Nelson had called Union Equity several times to inquire about wheat prices. In 1972, he had entered into a wheat forward contract with Union Equity over the telephone; but that contract was rescinded by the parties when Nelson broke his shoulder and was unable to perform his obligations. In the five years preceding the trial, Nelson had annually sold his wheat to a milling company in Denton, Texas, under contracts that were signed by both Nelson and a milling company agent. Nelson sold his 1973 wheat crop of 5,000 bushels to that company in September of 1973 for $5.25 per bushel.

In deciding whether Nelson was a merchant under these facts, we are aware that a “merchant” is commonly understood to be a person engaged in the buying and selling of commodities for profit, or a person in the retail business. See Webster’s Third New International Dictionary 1413 (1969). Although other courts have referred to the ordinary meaning of “merchant” in applying the U.C.C., Lish v. Compton, 547 P.2d 223 (Utah 1976); Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965), we are not here dealing with the dictionary definition of “merchant.” That term is expressly defined in Texas U.C.C. Section 2.104(a), and we are bound to apply the statutory definition in deciding the question before us. Under that definition, a person is a “merchant” if he (1) deals in goods of the kind, or (2) by his occupation holds himself out as having knowledge or skill peculiar to the practices involved in the transaction, or (3) by his occupation holds himself out as having knowledge or skill peculiar to the goods involved in the transaction, or (4) employs an intermediary who by his occupation holds himself out as having such knowledge or skill, and that knowledge or skill may be attributed to the person whose status is in question. If the facts show that a person satisfies any of the above criteria, then we are bound to hold that person to be a merchant.

The facts show that Nelson satisfied the first criterion above because he did deal in goods of the kind; he dealt in wheat. The Texas U.C.C. does not define the term “deal,” the ordinary meaning of which is “to traffic; to transact business,” Black’s Law Dictionary 487 (4th ed. 1968) or “to buy or to sell,” Ballentine’s Law Dictionary 308 (3d ed. 1969). The subject matter of Nelson’s contract with Union Equity was wheat. He raised his own wheat and brought in one crop a year. He annually sold that crop himself; and in the five years preceding the trial of this case, his sales were to a milling company. Under the plain meaning of the term “deal,” Nelson dealt in wheat. He was therefore one who “deals in goods of the kind . . .,” and he was a “merchant” under the U.C.C. definition. See Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (1974). Contra, Loeb & Co. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975).

The facts in this case also show that Nelson satisfied the second and third criteria of the statutory definition. It should be noted that those criteria do not require that a person actually hold himself out as having some particular knowledge or skill; they require that a person by his occupation hold himself out as having that knowledge or skill. Thus, an inquiry into a person’s merchant status under the second and third statutory criteria should focus on that person’s occupation, and not on whether he made any representations or on his actual knowledge or skill.

Nelson argues that his occupation is that of a farmer, and farmers do not by their occupations represent themselves as having knowledge or skill peculiar to their crops or to practices involved in their sales. We disagree. First of all, an experienced farmer such as Nelson did, by his occupation as a farmer, hold himself out as having knowledge or skill concerning the goods which were the subject of the oral contract. We believe that a reasonable person could expect an experienced wheat farmer to know the various grades and qualities of wheat, the yield of his farmland under varying conditions, and other factors that are peculiar to the business of wheat farming and to the wheat itself. Nelson therefore satisfied the third criterion above.

Furthermore, he satisfied the second criterion also. Nelson’s occupation was not only that of raising wheat and other crops; he sold the wheat which he raised, and to that end he stayed informed as to market prices and was knowledgeable in the business of selling. Nelson’s occupation was clearly that of raising and selling wheat for his living. A person whose occupation includes the selling of a commodity, at least to the extent shown of Nelson, necessarily represents to those persons with whom he transacts business that he has knowledge of the practices and goods involved in the business transaction.

It should also be noted that the Official Comment to Section 2.104 states what kinds of “practices” were envisioned when the Section was drafted. The Comment states in part:

Sections 2 — 201(2), 2 — 205, 2 — 207 and 2 — 209 dealing with the statute of frauds, firm offers, confirmatoryomemoranda and modification rest on normal business practices which are or ought to be typical of and familiar to any person in business. For purposes of these sections almost every person in business would, therefore, be deemed to be a “merchant” under the language “who ... by his occupation holds himself out as having knowledge or skill peculiar to the practices involved in the transaction .” since the practices involved in the transaction are non-specialized business practices such as answering mail. In this type of provision, banks or even universities, for example, well may be “merchants.” But even these sections only apply to a merchant in his mercantile capacity; a lawyer or bank president buying fishing tackle for his own use is not a merchant. [Emphasis added].

Nelson, through his occupation of farming and selling wheat, held himself out as having knowledge of “non-specialized business practices such as answering mail.” We therefore hold that he was a “merchant” within the meaning of Section 2.104(a) when he entered into the oral contract with Union Equity. See Continental Grain Co. v. Brown, F.Supp., 19 U.C.C.Rptr. 52 (W.D.Wis.1976); Continental Grain Co. v. Harbach, 400 F.Supp. 695 (N.D.Ill.1975); Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975); Ohio Grain Co. v. Swisshelm, 40 Ohio App.2d 203, 318 N.E.2d 428 (1973).

Nelson also argues that he was not a “merchant” based upon other language in the Official Comment to the statutory definition. The Comment states in relevant part:

Purposes:
1. This article assumes that transactions between professionals in a given field require special and clear rules which may not apply to a casual or inexperienced seller or buyer. It thus adopts a policy of expressly stating rules applicable “between merchants” and “as against a merchant”, wherever they are needed instead of making them depend upon the circumstances of each case
This section lays the foundation of this policy by defining those who are to be regarded as professionals or “merchants” and by stating when a transaction is deemed to be “between merchants.”
2. The term “merchant” as defined here roots in the “law merchant” concept of a professional in business. The professional status under the definition may be based upon specialized knowledge as to the goods, specialized knowledge as to business practices, or specialized knowledge as to both and which kind of specialized knowledge may be sufficient to establish the merchant status is indicated by the nature of the provisions.

Nelson points out that the Comment indicates that the term “merchant” was intended to apply to the “professional in business,” and not to the “casual or inexperienced seller or buyer.” He argues that a farmer such as himself, who only sells his crop once a year and stays informed as to current market prices, is not a “professional” and is therefore not a “merchant.” Courts from other jurisdictions have adopted this reasoning in holding the farmers before them not to be merchants. Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976), for example, held that the farmer, who had farmed for twenty years and had annually sold his crops to others in the seven years preceding the oral contract, was not a “merchant.” The court equated professionalism with a merchant’s status, and stated that the concept of professionalism was to be given much weight in determining whether a particular person was a merchant. It held that the farmer’s knowledge and skill regarding the raising of wheat, plus his previous annual cash sales to local grain elevators, were not sufficient factors to justify holding the farmer to be a merchant. The court in Loeb & Co. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975) also considered a farmer’s “professionalism” important. The farmer in that case had farmed for approximately ten years and had sold his cotton crops to the plaintiff cotton merchant annually for the five years preceding the oral contract. The court held that the farmer’s previous annual sales were not sufficient to remove him from the “casual seller” category into that of the “professional.” See also Lish v. Compton, 547 P.2d 223 (Utah 1976); Cook Grains, Inc. v. Fallis, 239 Ark. 962, 395 S.W.2d 555 (1965). Contra, Sierens v. Clausen, 60 Ill.2d 585, 328 N.E.2d 559 (1975); Campbell v. Yokel, 20 Ill.App.3d 702, 313 N.E.2d 628 (1974).

We cannot accept Nelson’s argument. Even if the terms “merchant” and “professional” are synonymous, we are still constrained to hold Nelson to be a merchant because under the facts before us, he was a professional, and not a “casual or inexperienced seller.” He was a professional in the business of growing and selling the crops he raised. See Campbell v. Yokel, supra. He did not sell his wheat as a hobby or merely for pleasure; his livelihood depended on the expertise with which he sold, as well as raised, his crops. He was a professional and, therefore, a “merchant.”

It may be argued that we have undertaken an unduly literal application of the statutory definition to the facts of this case. There are, however, persuasive reasons for adopting an expansive reading of the “merchant” definition. First, the broad language of Section 2.104(a) and the accompanying text of the Official Comment suggest that the term “merchant” was intended to apply to all but the most casual or inexperienced sellers. Second, the burden on the “merchant” seller of grain is light; all he must do is read his mail and object within ten days to the contents of the confirmatory memorandum. On the other hand, it would be a far greater burden on merchant buyers of grain to require them to execute forward sales with farmers such as Nelson by using methods other than confirmatory memoranda. See Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 26-29, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974) for a discussion of the widespread use of forward contracts in the commodities market and the reasons for their use. Finally, we believe that it is reasonable for a grain dealer to treat a seller as a merchant when that seller has offered to sell a large quantity of grain of specified quality, at a specified price, for delivery at a specified future time. Continental Grain Co. v. Brown, F.Supp., 19 U.C.C.Rptr. 52, 59-60 (W.D.Wis.1976).

For the above reasons, we hold that Nelson was a “merchant” when he entered into the oral contract with Union Equity. The judgment of the court of civil appeals is affirmed.

Dissenting opinion by Justice SAM D. JOHNSON in which Justices STEAKLEY, McGEE and YARBROUGH join.

SAM D. JOHNSON, Justice,

dissenting.

This dissent is respectfully submitted.

Carroll Nelson, the defendant farmer, grows two cash crops, cotton and wheat, on his 1,200-acre farm near Mangum, Oklahoma. Union Equity Co-Operative Exchange sued Nelson alleging an oral contract for the sale of his yearly wheat crop. By the terms of this alleged oral contract, Nelson sold his 1973 wheat crop, estimated at 5,000 bushels, for a total sum of $17,800 and obligated himself to deliver it by August 31, 1973. Since there is no written instrument signed by Nelson, and since the sale price exceeded $500,'recovery upon such an oral contract would usually be barred by the statute of frauds [Section 2.201(a), Texas Business and Commerce Code Annotated].

Union Exchange, however, asserts it is entitled to enforce this oral contract because of an exception to the statute of frauds contained in Section 2.201(b). Section 2.201(b) allows an oral contract between “merchants” to be enforced “if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, unless written notice of objection to its contents is given within ten days after it is received.” The majority of this court holds that Nelson, a farmer, is a “merchant.” It is that holding with which this writer vigorously disagrees.

The facts on which the majority relies for its determination are contained in its ninth and tenth paragraphs. These facts are: Nelson is a resident of Oklahoma and owns 1,200 acres of land.

He grazes cattle and has grown cotton and wheat there since 1967.
He has one wheat crop a year which he has sold annually since 1967.
He is knowledgeable about growing and selling crops — he has made it his usual practice to determine the best price obtainable for them.
He stays abreast of the current market by listening to the market reports on the radio and by asking grain dealers for market prices.
Prior to the date of the alleged oral contract, he phoned Union Exchange several times to inquire about prices.
He entered into a contract in 1972 with Union Exchange, which was rescinded by the parties.
In the previous five years he sold his wheat to a milling company (not the plaintiff in issue) by written contracts signed by both parties.
He sold his 1973 wheat crop to the same milling company (again, not the plaintiff in issue) for $5.25 per bushel.

These are the facts, and all the facts, on which the majority relies.

A “merchant” is defined in Webster’s New International Dictionary (Second Edition) as “any one making a business of buying and selling commodities; a trafficker; a trader; . . . one who traffics on a large scale, especially] with foreign countries. One who carries on a retail business; a storekeeper or shopkeeper.”

From the facts recited by the majority, it is unreasonable to conclude that Nelson, a farmer, was a “merchant.” The majority opinion violates the clear, ordinary meaning of that word as well as the definition contained in Section 2.104(a). That Section states:

“ ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

The intent of this Section is violated when a farmer, or any other individual who is a casual seller or buyer, is held to be a “merchant.” This intent is made obvious by the first comment to Section 2.104(a), which provides:

“This Article assumes that transactions between professionals in a given field require special and clear rules which may not apply to a casual or inexperienced seller or buyer.” [Emphasis added.]

In the instant case the evidence shows that Nelson, the farmer and producer of wheat, sold such wheat only one time per year. There is no indication that this farmer was a “professional” in the field of merchandising wheat or anything else; the evidence does no more than indicate a casual sale, a sale of wheat one time per year.

The majority holding that this farmer is a “merchant” not only violates the spirit of the law of Section 2.104(a), but also the letter of that law. Under the definition of Section 2.104(a), a person is a “merchant” if he (1) deals in goods of the kind involved in the transaction; (2) by his occupation holds himself out as having knowledge or skill peculiar to the practices involved in the transaction; (3) by his occupation holds himself out as having knowledge or skill peculiar to the goods involved in the transaction; or (4) employs an intermediary who, by his occupation, holds himself out as having such knowledge or skill.

This evidence is legally insufficient to establish that Nelson satisfied the first statutory criterion of being one who deals in goods of the kind involved in the transaction. As stated previously, the comment to Section 2.104(a) makes it clear that a “merchant” is a professional in business and does not include a casual seller or buyer. It is inconceivable that farmers who generally sell by written contract a single crop each year to one buyer are professionals in business and therefore “merchants.” Under such determination, every farmer in the state, of course, would be a “merchant.” Using the majority’s own definition, it is indisputable that Nelson did not “deal” in wheat. He produced wheat and he sold wheat, but he did not traffic, buy and sell, or transact business in it. One sale a year of a commodity produced is less than a scintilla of evidence that the farmer “deals” in farm crops. Other courts have so held. Loeb and Company, Inc. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975); Cook Grains, Inc. v. Fallís, 239 Ark. 962, 395 S.W.2d 555 (1965); Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976); and Lish v. Compton, 547 P.2d 223 (Utah 1976).

Nor does Nelson satisfy the second criterion. His occupation as a farmer who owns land, grazes cattle, and sells one crop a year by written contract is legally insufficient to indicate that he has knowledge or skill peculiar to the practices involved in the transaction. There is no justification on the basis of the evidence in this case to conclude that Nelson’s occupation indicates any knowledge of the professional business practice of allowing a letter signed by only one party to create a binding contract if the recipient of the letter does nothing. The statute correctly attributes such knowledge to merchants; there is no indication that it was ever intended to attribute such knowledge to farmers.

The third criterion of Section 2.104(a), that the individual’s occupation indicates knowledge or skill peculiar to the goods involved, is not applicable to this fact situation involving an exception to the defense of the statute of frauds [Section 2.201(b)]. The term “merchant” is employed in at least thirteen significant provisions of the Texas Business and Commerce Code. Accordingly, the definition of “merchant” must be a broad one and every criterion of this broad definition may not always apply to a given provision. This view is supported by the following comment to Section 2.104(a):

“2. The term ‘merchant’ as defined here roots in the ‘law merchant’ concept of a professional in business. The professional status under the definition may be based upon specialized knowledge as to the goods, specialized knowledge as to business practices, or specialized knowledge as to both and which kind of specialized knowledge may be sufficient to establish the merchant status is indicated by the nature of the provisions.” [Emphasis added.]

The provision involved in this suit, Section 2.201(b), contemplates an awareness of the professional business practice of employing a confirming memorandum signed only by one party to create a binding contract, notwithstanding the statute of frauds. While the act of dealing in goods or one’s occupation may indicate awareness of such a practice, knowledge or skill peculiar to the goods cannot.

It is undisputed even by the majority that the fourth criterion of Section 2.104(a) is not satisfied.

Clearly, a literal application of the statute does not support the view of the majority. Further, the weighing of the burden on the farmer to bbject to every letter he receives against the burden on the buyer to await the return of a signed contract does not provide persuasive support for the majority view. Although Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20, 26-29, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), discusses the virtues of forward contracts, that case involved a written agreement signed by both parties and the opinion does not consider the issue of the respective burdens of the parties regarding the creation of forward contracts.

Finally, it is unreasonable for a professional grain dealer, experienced in the commodity market, to assume that a farmer who sells a single crop of wheat a year has knowledge of the professional business practice of employing a memorandum signed only by one party to create a binding agreement.

The unfortunate result of the majority decision is not only that every farmer in Texas is held to be a “merchant,” but every individual who from time to time buys or sells significant household or personal items, house trailers, boats, or automobiles also becomes a “merchant.” Each of these persons would be a “merchant” and would be bound by a confirming letter sent by a buyer or seller if the person did not object to it.

Justices STEAKLEY, McGEE, and YARBROUGH join in this dissent.

      . Vernon’s Texas Codes Annotated, Business & Commerce, § 2.201(b). All references herein are to the Texas U.C.C., as codified in Vernon’s Texas Business & Commerce Code Annotated, unless otherwise indicated.

      . Section 2.201(a) provides:
      Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

      . Sections 2.103, 2.201, 2.205, 2.207(b), 2.209(b), 2.314, 2.327, 2.402(b), 2.403, 2.509(c), 2.603, 2.605(a)(2), and 2.609(b).


author: MORRISON, Judge. DOUGLAS, Judge.

text:
    George Braddock OGLE, II, Appellant, v. The STATE of Texas, Appellee.
    No. 50159.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    On Rehearing June 9, 1976.
    Rehearing Denied April 6, 1977.

      Frank S. Wright, Charles W. Tessmer, Ronald L. Goranson, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Steve Wil-ensky, Les Eubanks and Rusty Ormesher, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is kidnapping for extortion under Article 1177a, V.A.P.C.; the punishment, 50 years.

The sufficiency of the evidence is not challenged, but we briefly observe that a twelve year old boy was abducted and then released after the payment of the ransom. Through the efforts of FBI agents, appellant was arrested on the same day and the ransom money was recovered.

Grounds of error one, two and three relate to the failure of the court to provide the appellant copies of reports made by nine FBI agents in the course of their investigation. After each agent testified, appellant’s counsel requested the reports for the purposes of impeachment and cross-examination. The court denied each request. At the close of the evidence, the trial court admitted the reports in evidence for purposes of the record only. In two post trial hearings, the trial court assured appellant’s counsel that the reports would be included in the record on appeal, but the reports were not part of the record transmitted to this Court. Pursuant to an order by this Court, the reports are now before us.

It is clear that appellant, upon request, was entitled to inspect the prior statements of the nine FBI agents who testified, even though they did not use the reports to refresh their memories. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708.

The trial court erred in not allowing appellant’s counsel use of the reports during trial, but such error is harmless when the witness’ testimony is entirely consistent with the prior statement and almost all of the information contained in the statement is developed during the trial. Stein v. State, Tex.Cr.App., 514 S.W.2d 927; White v. State, Tex.Cr.App., 496 S.W.2d 642.

However, in the ease at bar, appellant’s sole defense was that he was suffering from chicken pox encephalitis which rendered him incapable of conforming his conduct to the requirements of what he knew was right and wrong. In this defense he was supported by the testimony of Dr. Hol-brook and Dr. Reedy. Throughout the trial, references were made to a visit appellant had made to Dr. Kassanoff for treatment of chicken pox within hours after the commission of this offense and a very short while before his arrest. Dr. Kassanoff’s opinion as to the appellant’s mental condition at the time of such visit was thus of vital importance in determining the validity or invalidity of his defensive theory. Dr. Kassanoff was not a witness, and no explanation was made as to why he was not called as a witness by either the State or the appellant. His report was not introduced in evidence but repeated references were made to his report as showing that appellant exhibited no signs of abnormality.

Special Agent Meyer’s report as to his interview with Dr. Kassanoff was among the statements which appellant’s counsel made repeated demands to see so that he might use the same in cross examining Meyer, and which the trial court refused to let him see, saying that he had reviewed it and found nothing beneficial to this appellant. All through Meyer’s testimony he expressed the opinion that the appellant was “rational” when he saw him within hours after the commission of the offense.

However, Meyer’s report contains the following:

“Dr. Kassanoff stated he considered Ogle to be somewhat different in his behavior from a normal individual and he stated he had possibly indicated signs of socio-pathic behavior.
* * * * * ⅜:
Dr. Kassanoff stated that his contact with Ogle on this occasion again seemed somewhat abnormal. He said that it was his opinion that Ogle, at that time,
seemed unconcerned with his case of the chicken pox, but again exhibited problems of a possible sociopathic nature.
* * * * * *
Ogle’s competency examinations indicate he was temporarily unable substantially to appreciate right from wrong at time captioned crime committed.”

During the cross examination of Dr. Reedy, a lengthy hypothetical question was propounded by the prosecutor. We quote only a portion thereof:

“Assume that on the date he visits a Dr. Kassanoff and keeps an appointment that he had to do so at 3:15, and at that occasion Dr. Kassanoff conducts a brief neurological check which shows no abnormalities. Assume—
[APPELLANT’S COUNSEL]: To which I object, Judge, as not, that’s not in evidence.
THE COURT: He is basing this on an assumption, counsel. Go ahead.”

It is immediately apparent that under the Gaskin Rule the appellant was entitled to examine Agent Meyer’s report and use the same in cross-examination. The fact that the FBI report in a manner supported appellant’s sole defense of insanity clearly demonstrates the harm which resulted from the trial court’s refusal to allow such cross-examination from the report.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

OPINION ON STATE’S MOTION FOR REHEARING

PART I

DOUGLAS, Judge.

In an earlier opinion, this cause was reversed because several Federal Bureau of Investigation agents testified and appellant was denied the right to look at their combined report for the purpose of cross-examination. Since that opinion was written, this Court has ordered a copy of the 100-page report of the Federal Bureau of Investigation which is a compilation of the work of nine agents to be made available to counsel for appellant. Time was granted for the filing of supplemental briefs to determine if reversible error was committed for the failure to make available the report in the trial court. A copy of the report was furnished, and both briefs are now before the Court. The entire case will be reviewed to see if reversible error was committed.

The evidence shows that appellant, at gunpoint, took Phillip Ross Terry, a student, from an elementary school yard. After taking him appellant demanded a large sum of money from the boy’s father who was president of a bank and received money for the release of the boy. Most of the money taken was found in appellant’s home the day of the kidnapping. The sufficiency of the evidence is not challenged, but a statement of proof will be set out so that appellant’s contentions may be properly considered.

Tom Freeman operated a Gulf service station and a Hertz Rent-a-Car agency on Preston Road on Northwest Highway. At about 8:00 o’clock in the morning of February 20,1973, a Mr. Ogle called and asked to rent a car. A few minutes later a man walked in and said that he was Mr. Ogle and that he had reserved a car and stated that his wife’s car was in the shop. (It was later shown that the wife’s car was not in a shop.) Ogle rented a small green Capri automobile for one day. He gave his address as 6524 Dartbrook. The rental was charged on an American Express credit card. Freeman wrote down Ogle’s driver’s license number. Ogle did not return the car but Freeman picked it up later at 6524 Dartbrook where Ogle and his family lived. It had been driven 68 or 69 miles. At the trial Freeman could not positively identify appellant as the person who rented the car.

Arleta Taylor testified that she was a cook and waitress at the Comanche Springs Inn on North Central and that at approximately 8:30 in the morning of February 20, 1973, she saw appellant enter the motel. Jewel LeFlore, the desk clerk, testified that appellant rented Room 256 at the motel and signed the name G. Braddoek Ogle. He gave his address as 6524 Dartbrook in Dallas. He used the American Express credit card. She gave him the key to Room 256. Seven calls were made from the telephone and registered on Room 256 that day. She thought she saw him leave the motel in a small green car. Donald Williams, a construction worker at the motel, testified that he saw appellant leave the motel in a green Capri automobile on the day in question.

Janice Speights, a secretary at the North-wood Hills Elementary School in Dallas, testified that at about 9:28 in the morning on the day in question a man called and stated that he was Kenneth Terry, Phil Terry’s father, and stated that he had to take Phil out of school for a couple of hours because “Richardson General had called and said that they were going to have to take tests.” He told her to have Phil meet him at the bicycle racks.

Phillip Ross Terry testified that he was twelve years of age and attended North-wood Hills Elementary School. In response to a call he went by the principal’s office and was told to meet his father at the bicycle racks. He related that a man was at the racks in a small green automobile and that the man was wearing a ski mask and sun shades. The man told him to get in the car. He started to run but the man pulled a dark colored revolver and told him to lie down in the back seat and cover his eyes. After the man drove the car a short distance, he turned and handed Phil some tape and had him cover his eyes with it. Phil did so but left a slight opening at the bottom. He knew the area well and tried to be sure where he was being driven. He knew that they drove onto Central Expressway. The car stopped, they got out and the man put his hand on his shoulder and they went up some stairs. The man opened the door and they went into a room that had yellow, red and blue, different colored striped carpet that he could see from below the tape. The man made him lie down on the bed which had a yellow bedspread. The man then picked up the telephone and dialed and his voice sounded like he had something in his mouth. He heard the man say that he was Mr. Shaw, that he was a CPA or something like that and that he asked to speak to Mr. Terry. He dialed some three or four times over a period of fifteen to twenty minutes before he could talk to Mr. Terry. When the man finally got Mr. Terry on the telephone he said that he was Mr. Shaw and that “we have your son and we’d like, I think, $200,000 in ‘low’ bills to be placed on a ramp on Central Expressway by the bank.” Phil talked to his father during the call. The man told Mr. Terry that he had some seven minutes to deliver the money.

Phil could hear workmen around the building, hammering and sawing. Later Phil directed Federal Bureau of Investigation agents over the route that he had taken and then showed them the room which had carpeting and a bedspread just like the ones where he had been. After completing his telephone calls, the man took him out to the car and he heard sounds that were apparently from the expressway. The car stopped, he thought right at the expressway, and he heard the door open and heard what sounded like noise from a paper sack. Then the man got in the car and drove away. He sounded like he was counting the money and all of a sudden he stopped. The man got out and told Phil to count to a thousand. He drove off and came back and circled; he thought the man was going to run over him. The man stopped and said to hand him the tape and to keep his eyes closed. Phil did as he was told. Later he went to a nearby school and talked to the principal. FBI agents later took him to Dartbrook Street to where a man, Brad Ogle, lived and he saw a green automobile with a tan interior like the one in which he had ridden. Phil recognized the neighborhood where he had been nearby playing with other children. He had met Mrs. Ogle some two years before but had never met Mr. Ogle.

Some two days after the incident in question, Phil heard a voice on television. He looked and saw a man. It was the voice of the man who had taken him in the car. The man on television was Ogle who was sitting in the courtroom.

Katherine Wood, a secretary to Kenneth Terry, received a call at approximately 10:00 o’clock on February 20 and the man identified himself as Mr. Shaw, a CPA, and wanted to speak to Mr. Terry. The voice appeared to be distorted or strange. She testified that Mr. Terry had customers and that the man called back several times. When she asked him the nature of the call, he said that it was about Phil and hung up. They were in the process of checking to see if there were any Shaws listed as CPAs in the yellow pages when the man called back. Terry took this call (which was a demand for ransom money). Katherine Wood then called the school and found out that Phil was not there. Gordon Shanklin of the FBI was called. Quite a bit of money was gathered at the bank and she watched Terry leave with the money in a brown paper bag under his arm. She testified that Terry stopped on the ramp of the expressway and set the paper bag out on the driver’s side on the grass. About twenty minutes later a man drove up in a green sports car and picked up the money. She was not close enough to see the license plate. The FBI came just a few minutes after the money was picked up.

Kenneth Terry, the father of Phil Terry, was president of The First Bank and Trust Company. He testified that he received the call and that the man said, “We have your son and we want money.” The man was talking in a strange, garbled, and what he thought to be a disguised voice. The man said, “We want $200,000 in small, unmarked bills,” and to place the money on the north ramp of Central Expressway at Spring Valley Crossing. He told them not to sound an alarm. Terry talked to his son Phil over the telephone and he testified that he could hear him crying. They did not have the full $200,000 but he got all the money he could without alerting the tellers for fear that he was being watched and that something would happen. He placed what was later determined to be $56,950 in two paper sacks.

Terry had known Ogle since the summer of 1971 and had talked with him in the office. After returning to the bank, Terry watched a green car come by and the driver did not get out but stopped and picked up the money. Terry later went to a dealership and identified a Capri as the kind of car he had seen. He saw one like it at the home of George Ogle on the afternoon of the kidnapping. He testified that he was present when Phil directed the FBI agents over the route that he had gone and to the Comanche Springs Motel on Central Expressway.

The FBI agents testified that Phil took them over the route that he had been and to the motel. FBI Agent James Hogan testified that he got the registration receipts and went to Ogle’s residence on Dart-brook. Herbert A. Grubert, agent in charge of the Dallas Division of Federal Bureau of Investigation, testified that he saw appellant at the home and he read his rights to him. Appellant told him that he had a green car he had rented that morning from Hertz Rent-a-Car. He said that he had rented a motel room at Comanche Springs Motel that morning for his attorney from Arizona. It was later shown that the attorney was engaged in a murder trial in Arizona during the week of the kidnapping. Ogle was asked if he kept large sums of money. He replied that he had $48,000 or $49,000 cash there. During this time Ogle talked rationally and he signed the consent form to search. A short time later he called an attorney and then withdrew the permission to search. Later, after consulting with his attorney, Ogle again agreed to the search. FBI agents found ashes of paper money wrappers in the fireplace. They found a Hertz rental agreement in the front area of the green Capri that showed the imprint of the credit card. Agent Hogan testified that they found a ski mask and gloves in a furniture drawer and the room key to Room 256 was found in the home. The American Express credit card receipt, for the room was also found and was introduced. A .22 caliber revolver and gloves were found.

Ted Cope, a teller at the bank, was shown the money which had been taken from appellant’s home. He identified a dozen or so bills which had his mark on them. Florence Hawkins, a teller at the bank, marked some money for counting purposes earlier as she put it in wrappers and she picked out approximately 100 bills that she had marked that had been in the bank prior to the time it was taken by Terry.

Jim Neal, an attorney, testified that appellant owed the American Bank and Trust Company some $90,000 and he had agreed to pay it back in February. It was also shown that appellant owed other large debts and was in dire financial straits. He had promised to pay the debts in February

Shirley Ogle, appellant’s wife, testified that she had taken appellant to Dr. Kassa-noff on the 12th of February and that Dr. Berryman also saw him. She also related that appellant had chicken pox on the 15th or 16th.

Dr. Holbrook testified in effect that on the date of the offense appellant was temporarily insane. While he was testifying, the prosecutor stated, “Let the record re-fleet that he is reading from Dr. Kassa-noff’s report.” The State offered to put Dr. Kassanoff s report into evidence. Dr. Reedy supported Dr. Holbrook’s testimony on the defense of temporary insanity because of encephalitis caused by chicken pox. There was no contention that appellant was incompetent to stand trial or that he had been insane at any other time.

There is no contest as to the facts as to the commission of the acts alleged in the indictment. In fact, appellant’s counsel stated in his argument to the jury that appellant had something to do with the case. No one called Dr. Berryman or Dr. Kassanoff to testify.

Two psychiatrists for the State testified that appellant had a sociopathic disorder and he had nothing to show encephalitis on February 20. There was no loss of control and he was not suffering from encephalitis. From their testimony it appears that socio-pathic behavior is an anti-social attitude common in the vast majority of criminals.

Appellant did not testify.

Grounds of error one, two and three relate to the failure of the court to provide appellant copies of reports made by nine FBI agents in the course of their investigation. After each agent testified, appellant’s counsel requested the report for the purposes of impeachment and cross-examination. At the close of the evidence, the trial court included the report in the record. The report containing the prior statements of the nine FBI agents who testified should have been made available to counsel for the defense even though they did not use the report to refresh their memories from the statements. Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962); Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972).

The trial court erred in not allowing appellant’s counsel the use of the report during the trial, but such error is harmless when the witness’ testimony is entirely consistent with his prior statement and almost all of the information contained in the statement is developed during the trial. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); White v. State, 496 S.W.2d 642 (Tex.Cr.App.1973); Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973).

Appellant’s sole defense was that he was suffering from chicken pox encephalitis to the extent that he could not substantially appreciate right from wrong nor adhere to nor conform his behavior to his knowledge of right and wrong at that time. This defense of temporary insanity was supported by the testimony of Dr. Holbrook and Dr. Reedy. Throughout the trial, references were made to appellant’s visit to his private physician, Dr. Kassanoff, for treatment of chicken pox within hours after the commission of the instant offense and shortly before appellant’s arrest. It appears from the record of the trial that appellant had possession of this doctor’s report.

Special Agent Meyer’s report as to his interview with Dr. Kassanoff was among the statements which appellant’s counsel made repeated demands to see so that he might use the same in cross-examining Meyer, and which the trial court refused to let him see, saying that he had reviewed it and found nothing beneficial to this appellant. All through Meyer’s testimony he expressed the opinion that the appellant was “rational” when he saw him within hours after the commission of the offense.

Meyer’s report dictated on March 3,1973, contains the following:

“Dr. Kassanoff stated he considered Ogle to be somewhat different in his behavior from a normal individual and he stated he had possibly indicated signs of sociopathic behavior.
U * * *
“Dr. Kassanoff stated that his contact with Ogle on this occasion again seemed somewhat abnormal. He said that it was his opinion that Ogle, at that time, seemed unconcerned with his case of the chicken pox, but again exhibited problems of a possible sociopathic nature.”

From this report of the interview with Dr. Kassanoff, it appears that appellant’s physician would not support appellant’s theory of temporary insanity.

Meyer’s report dated June 22, 1973, contains the following statement:

“Ogle’s competency examinations indicate he was temporarily unable substantially to appreciate right from wrong at time captioned crime committed.”

At the time the June 22, 1973, report was prepared, Meyer had a copy of the letter from Dr. Holbrook to appellant’s attorney, Frank S. Wright, giving the results of Hol-brook’s psychiatric examination of appellant. The above quoted statement from Meyer’s report is no doubt a shorthand rendition of the results of this examination which were explained in detail in the doctor’s report.

Since matters complained of in Meyer’s report were clearly within the knowledge of appellant, no harm is shown. The report contained hearsay statements of what doctors told Agent Meyer. Meyer could not have been impeached by the hearsay testimony concerning what the doctor had told him.

Next appellant asserts that the FBI report made no mention of automobiles at appellant’s residence at the interview and on the trial. Agent Meyer testified that appellant had told him that he had access to three automobiles on the day in question. There is an assertion that harm is shown but no indication of what the harm could have been. The evidence is without contradiction that appellant used the Capri rented from Hertz Rent-a-Car, and his having access to other cars was not a material issue.

Complaint is made that there was no mention in the report that Agent Meyer heard the U.S. Magistrate inform appellant of the charges against him and that he heard appellant give proper answers to the questions propounded him and that the answers were correct and appropriate. This was consistent with Agent Meyer’s testimony. Cross-examination with this omission in the report could have furnished nothing new or inconsistent with other testimony of the agent.

There was no mention in the report that Mrs. Ogle was questioned. Agent Meyer testified that he asked Mrs. Ogle if she knew that they had $48,000 or $49,000 in the house and she stated that she did not know that and that they usually kept two or three hundred dollars.

The report indicated that Phillip Terry described the gun as having a light colored barrel, but could not identify it as a revolver or automatic. Phillip testified at the trial that' the gun was a dark revolver.

There is a notation in the report that Phillip could recall no color around the holes in the ski mask for the eyes and mouth. He testified, “. . . the lining around the mask was a different color, and the mouth.”

No mention of the conversation with Mrs. Terry was contained in the report. Agent Alford testified that he talked with Mrs. Terry and she was upset.

He contends that there was a contradiction in the report and the testimony of Agent Alford. The notation in the report reads: “Phillip was later shown room number 256 of this motel. ...” and Agent Alford testified:

“. . .at his discretion I was merely following him at this time. At his direction he went a few feet down the hallway and stopped and made a left turn into the door there that encloses a room.”

and

“It was room 256.”

The report included the following: “Phil said the bedspread was a yellow color,” and the testimony of Agent Alford was, “The bedspread was perfectly explained by Phillip prior to our arrival there and this was exactly the bedspread on the bed.”

These are not all, but are most of the instances where appellant claims that reversible error was committed by the failure to make the report available to him at the trial. If there be inconsistencies between the report and the testimony, they are not such as their use in cross-examination would change the verdict from that of guilty to not guilty.

The evidence is overwhelming as to appellant’s action and guilt in the kidnapping; his having the money taken from the bank; his leasing of the car used in the kidnapping and his renting the room as a part of his scheme. Even appellant’s counsel argued to the jury that appellant had something to do with the case.

In viewing the testimony in light of the defense of insanity at the time of the offense based upon encephalitis caused by chicken pox, we hold that the error in the failure to make available the report was harmless beyond a reasonable doubt.

The other grounds of error are overruled. No reversible error has been shown. The State’s motion for rehearing is granted and the judgment is now affirmed.

ROBERTS, J., concurs in the result.

      . We also observe that once a federal employee testifies in a state court prosecution his reports should be available to the accused for the purpose of cross examination. Cf. Lewis v. U. S., 340 F.2d 678 (8th Cir. 1965), and cases cited therein.

      . Gaskin v. State, supra. See also Jackson v. State, Tex.Cr.App., 506 S.W.2d 620.

      . We also observe that once a federal employee testifies in a state court prosecution his reports should be available to the accused for the purpose of cross-examination. Cf. Lewis v. Unites States, 340 F.2d 678 (8th Cir. 1965), and cases cited therein.

      . Eight other grounds of error have been discussed in Part II of this opinion which consists of seven legal size pages. It is not for publication but is for the benefit of the parties. It will be treated as a per curiam opinion because it contains nothing that would add to our jurisprudence. See Thompson v. State, 514 S.W.2d 275 (Tex.Cr.App.1974); Wood v. State, 523 S.W.2d 248 (Tex.Cr.App.), and Marshbum v. State, 522 S.W.2d 900 (Tex.Cr.App.1975).