text:
    Darrell TEAGUE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 23, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Marvin P. Morton, Jr., Paris (appointed), for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for defendant-in-error.
   OPINION

OLIVER, Judge.

Teague, a member of the Negro race, was tried in the Circuit Court of Henry County upon a two-count indictment. The first count charged that on an unspecified day of September 1972 he “unlawfully and feloni-ously did possess for the purpose of manufacture, delivery, sale, and in fact did sell Controlled Substance, Listed in Schedule VI of the Controlled Substances Act, being Marihuana, in violation of Section 52-1432, Tennessee Code Annotated.” The second count charged that on the same date he “did unlawfully and feloniously possess marihuana in violation of the Statutes.”

The trial judge charged the jury that if they did not find the defendant guilty under the first count they should return a not guilty verdict as to that count, and added “You will then look to the proof to determine if the defendant, Darrell Teague, is guilty of the lessor [sic] offense in Count No. 2.”

The Bill of Exceptions shows the jury found the defendant guilty of selling marijuana or possession of it for the purpose of sale under the first count of the indictment and fixed his maximum punishment at imprisonment in the penitentiary for three years. For the conviction announced by the jury, the trial judge pronounced judgment sentencing the defendant to not less than one nor more than three years in the penitentiary. (TCA §§ 52-1422(1); 52-1432(a)(1)(F). Nevertheless, the trial court’s Minutes recording the defendant’s trial recite incorrectly that the jury found him guilty under both counts of the indictment. In case of such a conflict, the law is settled that the recital in the Bill of Exceptions is controlling. Headrick v. State, 519 S.W.2d 403 (Tenn.Cr.App.1974) and cases therein cited. Extraordinary care should be exercised, by everyone responsible for preparation and authentication of the court’s Minutes, to see to it that they are absolutely accurate.

In passing, to avoid the possibility of future misunderstanding, we consider it appropriate to clarify further confusion apparent in the trial court’s Minutes. The defendant’s new trial motion was filed on 5 June 1973. More than a year later, on 11 June 1974 the court entered an order, nunc pro tunc for 13 May 1974, which overruled the defendant’s new trial motion and purported to correct (reason not stated) its order entered on 18 September 1973 overruling the same motion. The Bill of Exceptions recites that the court overruled the new trial motion on 20 September 1973 and granted his prayer for an appeal and allowed him 30 days to perfect an appeal and an additional 60 days to prepare and file his Bill of Exceptions. The technical record contains the defendant’s prayer for an appeal filed 9 October 1973, but no order of the court granting it. But the Minutes of 1 October 1973 reflect an order of the court granting the defendant an additional 60 days for filing his Bill of Exceptions. So, again, we have inexplicable conflicts between the Bill of Exceptions and the trial court’s Minutes. However, since the defendant’s new trial motion was overruled either on the 18th or 20th of September 1973, and whether the 60-day extension for filing the Bill of Exceptions was granted at the same time (as stated in the Bill of Exceptions) or on 1 October 1973 as shown in the Minutes, plainly its signing by the trial judge on December 1, 1973 and its filing with the trial court clerk on December 14, 1973 were within the statutory maximum of 90 days from the overruling of the new trial motion. TCA § 27 111.

So, upon consideration of the entire record we conclude that the defendant prayed for and was granted an appeal by the trial court, both of which are necessary prerequisites to vest this Court with jurisdiction, Green v. State, 512 S.W.2d 641 (Tenn.Cr.App.1974) and cases therein cited; and that he has succeeded in bringing his case to this Court by an appeal in the nature of a writ of error.

We first address the Assignment that the evidence preponderates against the jury verdict and in favor of the defendant’s innocence. The jury obviously accepted the prosecution evidence which, in summary, shows that on the night of 16 September 1972 or in the early morning hours of the 17th Tennessee Bureau of Criminal Identification undercover agent Jerry London bought a one-ounce bag of marijuana from the defendant for $20 in Paris, Henry County, Tennessee. The defendant interposed the defense of alibi, testifying that he went to Nashville to school on 5 September 1972 and did not return to Henry County until September 28th or 29th; that the evening of 16 September 1972 he attended his sister’s and brother-in-law’s anniversary party in Nashville which lasted until 3:00 or 4:00 o’clock in the morning of the 17th. The defendant’s sister and a friend of his testified he was at the party, and his grandparents, living in the Springville Community in Henry County, said they received a collect telephone call from him and his sister the night in question. The anniversary date was the 19th of September.

The defense of alibi presents an issue of fact determinable by the jury, as the exclusive judges of the credibility of the witnesses testifying in support of that defense and of the weight to be given their testimony. Green v. State, supra, and cases therein cited. By its verdict, the jury rejected the defendant’s defense of alibi, and from a careful review of all the evidence we are of the opinion that it does not preponderate against the decision of the jury upon that question. The evidence amply sustains the verdict of the jury.

We turn now to the defendant’s three remaining Assignments of Error by which he presents and urges us to accept his insistence that (1) members of the black race and (2) women were systematically excluded from the venire from which the grand jury which indicted him and the trial jury were selected, and (3) that the trial judge has systematically excluded members of the black race and women in selecting the Henry County grand jury foreman since 1937, all of which he claims deprived him of his constitutional right of due process and equal protection of law under the Fourteenth Amendment.

In a pleading styled a plea in abatement filed in the trial court prior to trial, the defendant raised objections to the indicting grand jury and the indictment upon those grounds, but made no complaint with reference to the trial jury. Although that document fell far short of the rigid requirements for a plea in abatement, evidently the trial court considered it as such in an evidentiary hearing before the trial, and overruled the plea. The separate transcript of that hearing is not authenticated by the trial judge, but at the trial he permitted that record to be admitted upon defense counsel’s motion. So we consider it.

The so-called plea in abatement was filed on 9 March 1973. The technical record also contains a pleading entitled “objection to grand jury and sheriffs venire” filed by the defendant on 5 March 1973, which was the day upon which the grand jury for the January 1973 Term returned the indictment against him. In that pleading the defendant simply objected “to the composition of the Sheriff’s Venire and Henry County Grand Jury as they are presently composed,” asserting that his state and federal constitutional rights were violated because “The Grand Jury and Sheriffs Venire from which it was drawn contain a disproportionate number of” (1) blacks, (2) women, (3) low-income persons and (4) no 18, 19 or 20-year-old persons and very few young citizens; and also stated as a- further basis of objection that the grand jury foreman had served in that capacity between 35 and 40 years.

It is apparent that both of the defendant’s pleadings complaining about the composition of the grand jury and the grand jury foreman were encompassed in the pretrial evidentiary hearing referred to. It is also apparent that at this hearing identical pleas filed in several other pending criminal cases, including “9295 which is Tennessee vs. Dexter Williams,” were also presented to the court.

In asking the court to take judicial notice of the number of white and black people and the percentage of each in the Henry County population reflected by the census figures of 1960 and 1970, defense counsel stated that he was quoting those figures from his motion to quash “in the (Edna) Stubblefield case,” which will be referred to later. At defense counsel’s request the court also took judicial notice of the 1970 census reflecting the number of persons in the county between 18 and 20 years of age, as well as the number of men and women 18 years of age and older.

It was stipulated that, as shown also in the Stubblefield case, the grand jury foreman had served continuously since 1937 and was then more than 80 years of age.

Defense counsel introduced a collective exhibit consisting of 34 photocopies of the court’s Minutes showing the names of people drawn by the Jury Commission and summoned by the sheriff to serve as jurors at every term from July 1961 to January 1973, inclusive, except the May 1972 Term for which a like copy of the venire list issued by the clerk to the sheriff was filed. On each of those Minute copies, up to and including the January 1972 Term of the court, a typed label is stapled stating the total number of jurors listed and whether any blacks are included and if so the number and their names. The defendant called a Negro man as a witness, who gave his address as Route 2, Paris, Tennessee (Henry County), whose age is not indicated, who testified he had examined the 35 documents included in the collective exhibit and had counted the number of white men and women and black men and women on each of the 35 lists (notwithstanding that no racial designation appears after any name on any of those juror lists). He testified that the total number of jurors on those 35 lists was 2577, of which there were only 68 blacks including three black women, and that only 29 women in all were included. How that witness could make that determination by looking at the listed names of 2577 people summoned for jury service over a period of 12 years is not exactly clear.

The defendant called one of the Jury Commissioners as a witness. He said he had been a member six or seven years and identified himself and the other members past and present and said all were white men. He testified a new master jury list had not been prepared in the last four or five years, but some supplemental names had been added from the voter registration list, and some 18 to 20-year-old people were selected and added in September of the preceding year (1972); that the Commission selected names from the Public Utility Board records and the voter registration records; that they used their best judgment in trying to determine “whether or not they are qualified.” He explained the small number of women selected by saying it could be due partly to use of the Board of Public Utility records as a source and also because jury service by women was not mandatory and they could elect not to serve. He said that he had never known of a member of the Jury Commission to reject a person for prospective jury duty because he was black, and he could not agree that the small number of black people on the jury list was the result of no black person being a member of the Jury Commission. On cross-examination by the State he testified that the Jury Box contains the names of black people, women — including black women, and “18-year-olds”; and that neither he nor anyone else on the Jury Commission ever rejected anyone because she was a woman — either black or white. It was stipulated that a black man, Clarence Clark, was a member of the grand jury “that indicted these four men” (which included this defendant and Dexter Williams).

Each of the defendant’s Assignments complaining about exclusion of blacks and women and the long uninterrupted tenure of the grand jury foreman were raised by the same attorney, and were sufficiently answered and rejected by this Court in the case of Edna Stubblefield v. State (appealed from the same trial court) in an unpublished opinion written by Judge Dwyer and filed at Jackson on 30 October 1973, in which the Supreme Court of Tennessee denied certiorari on 21 January 1974.

See also: Nelson v. State, 499 S.W.2d 956 (Tenn.Cr.App.1972) concerning grand jury foremen being reappointed and remaining in office.

With reference to the defendant’s complaint about the paucity of women selected by the Jury Commission, at the time of this indictment on 5 March 1973, TCA §§ 22 101 and 22 108 granting women the option of serving or not when summoned for jury duty, and like statutes were constitutional. Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). Whatever may be the effect of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) upon our above-mentioned woman-juror statutes, that decision of the United States Supreme Court is not retroactive and hence has no application in the instant case. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed. 790 (1975).

In contending that persons between the ages of 18 and 20 were systematically excluded, the defendant is confronted with his failure to sustain the initial burden of showing that such persons constitute a separate and distinct class. The defendant in Shadden v. State, 488 S.W.2d 54 (Tenn.Cr.App.1972), made a similar insistence. Holding to the contrary, this Court said:

“Furthermore, the defendant offered no evidence to establish, and we are not persuaded, that persons between the ages of 18 and 20 constitute a cognizable distinct class or group in the general population. This record is barren of any evidence and we cannot assume, that the attitudes and propensities and predilections and viewpoints of persons in this age group are peculiar to them and are any different than, say, those of persons in the age group of 21 25, nor that those in the younger bracket are endowed with any greater capacity for perceptiveness and discernment and impartiality.
“For the purpose of selecting people to serve on juries, the defendant would create a new class in society composed of those over 18 and under 21 years of age. The fallacy of such a concept is immediately apparent in its fearsome implications. It would permit a defendant of any given age to mount an attack upon his indictment upon the ground that people in the county of the same age constituted a legally cognizable class requiring separate constitutional recognition. In devising a method of selecting citizens for jury service it is obviously altogether impracticable to attempt to identify and categorize people by precise age groups such as 18- 21, or 21 26, or 45-50, or 60 65. Certainly a defendant has no constitutional complaint that no one of his age was on the Grand Jury which indicted him or on the trial jury which convicted him. In the administration of jury laws, proportional class representation is not a constitutionally required factor. Hoyt v. State of Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118; State ex rel. Smith v. Johnson, 220 Tenn. 49, 413 S.W.2d 694; State ex rel. Hathaway v. Henderson, 1 Tenn.Cr.App. 168, 432 S.W.2d 503.”

We agree with the opinion of the United States District Judge in United States v. Gargan, 314 F.Supp. 414, that in selecting jurors it is impracticable to attempt to identify and to categorize people by age groups, for the patent reason that persons within a specific age group do not constitute a distinct identifiable class in the general population.

See also: Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

We agree with the trial judge that the defendant did not prove any of his charges of systematic exclusion of blacks or women or young people.

Affirmed.

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


source: Caselaw Access Project

author: DWYER, Judge. JOHN D. TEMPLETON, Special Judge

license: Public Domain

text:
    Harry Wayne WADE and Terry Michael Clayton, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 20, 1975.
    Certiorari Denied by Supreme Court Dec. 1, 1975.

      Jay Fred Friedman, Memphis, for plaintiffs-in-error.
    R. A. Ashley, Jr., Atty. Gen., Memphis, Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, Michael Whitaker, Dist. Atty. Gen., Preston Parks, Asst. Dist. Atty. Gen., Som-erville, for defendant-in-error.
   OPINION

DWYER, Judge.

From a conviction for committing the offense of possessing a controlled substance, see T.C.A. 52-1415, (a)(1)(viii), (a)(1)(xiii), (f), (g), the intent to sell or deliver with resulting punishment, see T.C.A. 52-1432(1)(B), of confinement for not less than four nor more than seven years, this appeal in the nature of a writ of error by retained counsel has been filed with assignments of error.

The evidence from our reading of this record discloses the following facts.

On February 28, 1974, around 1:30 p. m., an informant overheard a telephone conversation by the plaintiff-in-error, Clayton, hereinafter referred to as defendant. He heard Clayton (a midget) say to the unknown party on the other end, “I’ve got the stuff, where do you want to meet me.” The informant then telephoned the dispatcher of the sheriff’s office of McNairy County relating the above information, describing the vehicle that Clayton was in as being a 1973 blue Ford Torino with damage to the right side and the Hardin County license number 54F861, headed west on Highway 64. The informant also advised the dispatcher that a black male would be driving the car accompanied by Clayton and an unknown white female.

The dispatcher notified an agent of the T.B.I. and a deputy sheriff, who were in the sheriff’s office, about the above information. These officers left to seek the whereabouts of the Torino and at the same time a broadcast was sent out notifying county officers in the vicinity to stop the car.

The chief of police of Middleton stopped this automobile at the intersection of Highways 57 and 125 on the basis of the broadcast stating the car had drugs in it.

When the T.B.I. agent and the McNairy deputy arrived at the arrest scene, they searched the car and found under the floor mat on the driver’s side: a bottle with brown liquid, which was identified as containing Morphine and Codeine, among other substances; three syringes, two with a liquid content which was Morphine; a paper cup with twenty-five yellow tablets identified as Ridlin, which is Methylphenidate. The three occupants were placed in the police cruiser and transported to the city jail at Middleton. The chief, at that time, returned to his squad car. Under the driver’s seat he found a plastic package containing a grass substance and another package containing pink, orange and white tablets, later identified as containing Phenmetra-zine and two containing Methaqualone.

The defendants Clayton and Wade did not testify and offered no proof.

The first assignment of error contended by the defendants is that the indictment is insufficient and improperly drawn. They reason that the substance Morphine and Codeine found in the bottle was paregoric, a Schedule V drug, and, it was alleged as a Schedule II drug in the indictment, which was therefore misleading and duplicitous. The indictment listed Codeine, T.C.A. 52 -1415, (a)(1)(viii), Morphine, T.C.A. 52-1415, (a)(1)(xiii), Methaqualone, (g), and Methylphenidate, (f), classified as Schedule II drugs. This assignment was not raised in the motion for new trial and is therefore without merit here, see Hendon v. State, Tenn.Cr.App., 489 S.W.2d 271, 274. Further, defects in the indictment are waived if not raised prior to a plea to the merits, see Stevenson v. State, 64 Tenn. 681, 683; Rodes v. State, 78 Tenn. 414, 417. We find nothing misleading about the indictment. This assignment is overruled.

We find no merit in his second assignment. He contends that it was error for the court to refuse to grant random selection for jurors as required by T.C.A. 40 2506. There is no proof that the venire was not selected at random. The evidence showed that the clerk under the direction of the court prepared lists from the venire to prevent jurors from being called more than once at any particular term of court. In the absence of any prejudice being shown, we find no merit in this assignment. The assignment is overruled.

The third assignment of error is that it was error on the part of the court to refuse to hear the motion to suppress pretrial. The court heard the motion to suppress on a full hearing outside the presence of the jury which had been sworn and excused. In the absence of any prejudice we find no error here. This assignment is overruled.

The fourth assignment is that the trial judge committed error in refusing to suppress the evidence in the cause both after hearing and at the conclusion of the proof. In other words, was the arrest and search illegal. We think the trial court erred in overruling the defendant’s motion to suppress on the evidence that was presented. The evidence reflects that the informant overheard the defendant state, “I’ve got the stuff, where do you want to meet me.” In the absence of other facts and underlying circumstances that “stuff” meant “dope” (narcotics), or such facts as the informant saw narcotics in the car, we think the conclusion, alone, that “stuff” was “dope” as drawn by the informant and related by him to the dispatcher is insufficient to support probable cause so as to justify this warrantless search, see Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; State v. Parker, Tenn., 525 S.W.2d 128, Jackson, released March 24, 1975. This assignment is sustained and the evidence should have been excluded. In view of our sustaining this assignment, the judgment of the trial court is set aside. The record is remanded for a new trial.

His fifth assignment is that the chain of evidence was broken and it was error for the trial judge to overrule his timely motion for exclusion. We think not. In the first instance, this assignment was not argued in the motion for new trial, see Hendon v. State, supra. In the second instance, this assignment is not briefed, see Miller v. State, Tenn.Cr.App., 508 S.W.2d 804, 807; Rule 15 of this court. In the third instance, it is a matter that addresses itself to the discretion of the court and his determination will not be overturned in the absence of a clearly mistaken exercise thereof, see Ritter v. State, 3 Tenn.Cr.App. 372, 462 S.W.2d 247, 249. From our review, we find no mistaken exercise thereof in this record. This assignment is overruled.

His sixth assignment is that it was error to indict and charge defendants for possession of Morphine and Codeine, a Schedule II drug, when the substance in fact was paregoric containing those two items and properly classified under Schedule V. There is no evidence in the record that the substance in the bottle was paregoric, other than a label on the bottle reflecting that literal statement. It is true the toxicologist testified there were other substances in the liquid which were identified. When her testimony reflected this, it hoisted a flag for counsel by his cross examination to develop what he now urges. Whether the Morphine and Codeine was paregoric as classified under Schedule V was a fact question for the jury. Further, we think this is not controlling for there is ample proof to support the verdict on the Schedule II drugs, i. e., Methylphenidate and Methaqualone. This assignment is overruled.

His seventh assignment is that it was error for witnesses to discuss testimony between themselves during the trial, and it was error for the sheriff, an obviously inseparable companion of the prosecutor, to go into the jury room during the deliberation. The evidence reflects that the witness-dispatcher had gone into the witness room and stated that she had been asked a question of whether the informant had been paid. We find no error here. There is no proof that the sheriff was in the jury room during their deliberations, nor is there proof that the sheriff was the inseparable companion of the prosecutor. This assignment is overruled.

His eighth assignment is that it was error for the trial judge to allow the expert witness tendered by the state to testify as an expert. He contends the expert toxicologist was only a technician, that she had only superfluous courses in chemistry and could only perform the test using known standards for comparison. Upon objection, the trial court had a hearing out of the presence of the jury on the qualifications of the witness. The evidence at that hearing reflects that she had introductory chemistry courses, a further course in qualitative analysis and a further course in quantitative analysis, two semesters of organic chemistry and one semester of instrumental analysis, and that she was classified by the University of Tennessee as a toxicologist. She was familiar with the theory behind the different tests she used in identifying the different exhibits. We find no merit in this unbriefed assignment, see Miller v. State, supra. The determination of who is an expert witness is within the sound discretion of the court, see Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920. We find no abuse of that discretion here. This assignment is overruled.

His last assignment of error is, was it error for the trial judge to deny bail on appeal. We find no error in the trial court denying bail, see T.C.A. 40 3406. This assignment is overruled.

In view of our sustaining assignment of error number four, this record is reversed and remanded for a new trial.

DUNCAN, J., concurs.

JOHN D. TEMPLETON, Special Judge, concurs in separate opinion.

JOHN D. TEMPLETON, Special Judge

(concurring).

I concur in Judge Dwyer’s opinion but I would add this respecting the second assignment of error. I think it was error to allow the clerk to call jurors from the panel to the jury box in whatever order he chose but it was harmless error.

ín England the rule concerning selecting jurors from the panel was, “ . . that their names being written on tickets, shall be put in a box or glass; and when each cause is called, twelve of these persons, whose names shall be first drawn out of the box, shall be sworn upon the jury, unless absent, challenged, or excused . . .”. Blackstone’s Commentaries, Book 3, Page 358. Our statute plainly requires selection of names from the panel by chance. T.C.A. 40-2506. This process is generally used elsewhere in our country. 47 Am.Jur.2d, Jury, See. 141.

In the case before us the clerk did not act corruptly or out of any interest or improper motive but merely to divide the work among the members of the panel. It is not shown that challenges were exhausted. Defendants were not prejudiced. I am satisfied the error was harmless beyond a reasonable doubt.


author: O’BRIEN, Judge.

text:
    R. E. SOLOMON, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Aug. 20, 1975.

      Michael E. Starling, Knoxville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., William L. Waters, Asst. Dist. Atty. Gen., Knoxville, for respondent.
   O’BRIEN, Judge.

OPINION

Petitioner was indicted for first degree murder in the Criminal Court of Smith County, Tennessee, and on March 30th, 1971, convicted by jury of voluntary manslaughter. Judgment was entered fixing the sentence at not less than two years nor more than ten years in the State Penitentiary. The judgment was appealed and affirmed by this court on October 17th, 1972, with certiorari being denied by the Supreme Court of this state on January 15th, 1973, and by the United States Supreme Court on May 29th 1973.

During the first part of July, 1974, petitioner was incarcerated at the Knox County Work Release Center pending parole which had been approved with his release date set for October 9th 1974. On July 26th, 1974, petitioner was granted a furlough under the provisions of T.C.A. Sec. 41-356, and, according to his petition, was allowed to go home on July 27th, 1974. He failed to return to the Work Release Center at the appointed time, and was arrested. Subsequently a warrant was issued charging him with “Escape from the Knoxville Com. Release Center where he was serving time for a felony conviction.” The warrant indicates petitioner appeared before a General Sessions Court in Knox County where he waived his right to indictment, jury trial, and right to counsel in accordance with T.C.A. Sec. 40 423. The general sessions judge reduced the charge to “escape from jail while serving misdemeanor conviction” and sentenced petitioner to be confined in the Knox County Workhouse for a period of six months.

Petitioner filed an application for writ of habeas corpus alleging a denial of due process because (1) he was sentenced to three months in the workhouse without appointment of counsel or opportunity to procure his own counsel, (2) he was not given a trial or allowed to enter a plea of any kind, (3) and was not allowed to testify or call witnesses on his own behalf. Counsel was appointed and the petition was amended to further allege the waiver in General Sessions Court was signed after petitioner was sentenced and was involuntary. On the State’s motion, the petition was dismissed without a hearing of any kind in the trial court.

On this appeal, assignments of error and brief have been filed by appointed counsel alleging (a) the evidence was not sufficient to support the order sustaining the motion to dismiss the plaintiff’s petition; (b) the court erred in ruling that the habeas corpus petition was premature.

A brief and assignments of error have also been filed by a “Jail House Lawyer” on behalf of petitioner contending (c) petitioner could not be charged with escape while on an authorized furlough; (d) petitioner was improperly arrested and charged with escape more than twenty-four hours before any warrant or complaint had been issued; (e) his waiver of counsel in the General Sessions Court was done after his conviction without being informed of his right to counsel, and was therefore unconstitutional.

The order of the trial court sustaining the state’s motion to dismiss sets out that the trial judge found from the evidence presented (emphasis added) that petitioner was convicted in the General Sessions Court of escape from the Knoxville Work Release Center while serving a felony sentence; that petitioner entered a written waiver of grand jury investigation indictment, trial by jury, and right to legal counsel in the General Sessions Court proceedings; entered a plea of guilty under the provisions of T.C.A. Sec. 40 423, and was properly sentenced to the Knox County Penal Farm for six months to be served on the expiration of his prior sentence. The trial court further found that petitioner would not be entitled to immediate release because of the remainder of the sentence pending on his previous conviction, and that an evidentiary hearing was unwarranted.

There is error in this case which begins with the action of the General Sessions Court judge who reduced the charge in the warrant issued for defendant from a felony to a misdemeanor and disposed of the matter by committing the defendant to the Knox County Workhouse for a period of six months.

T.C.A. Sec. 40 423 provides as follows: “Protection of defendants in general sessions courts — Waiver of rights. — It shall be the mandatory duty of the judge of the court of general sessions, when a defendant is brought before such court upon arraignment or trial, to advise such defendant of his constitutional right to be represented by counsel, the right to be tried only upon presentment or indictment by a grand jury, the right to make a statement in reference to the accusation or the right to waive such statement, and the right to a trial by jury. Upon the defendant agreeing in writing to waive the rights to be put on trial only by presentment and indictment by a grand jury, and the right to be tried by a jury of his peers, such court may proceed to hear and determine said case as provided in this section and § 40-118. Said waiver shall be written and attached to the warrant substantially in words and figures as follows:
The defendant,_, pleads guilty (not guilty) to the offense of _, and waives his right to be tried only by indictment or presentment preferred by a grand jury and likewise waives trial by a jury of his peers.
Signature
Attest:_
Clerk or Judge”

It appears from the copy of the warrant attached to the criminal court judge’s order dismissing the petition for writ of habeas corpus that the waiver contained in the warrant is not attested by either the clerk or the judge of the General Sessions Court as prescribed by the statute. More important, T.C.A. Sec. 40 423 only provides that court may proceed to hear and determine a case as set forth in that section and in Sec. 40 118, which reads as follows:

“Jurisdiction of general sessions courts.— In addition to the jurisdiction of justices of the peace in criminal cases as conferred in § 16 1104, the court of general sessions is hereby vested with jurisdiction to try and determine and render final judgment in all misdemeanor cases brought before said court by warrant or information wherein the person charged with such misdemeanor enters a plea of guilty in writing or requests a trial upon the merits and expressly waives an indictment, presentment, grand jury investigation and jury trial, such waiver to be in writing as provided in § 40 423. In such cases the trial shall proceed before the court without the intervention of a jury, and the court shall enter such judgment, and, as an incident thereto, may inflict such punishment within the limits provided by law for the particular offense, as the court may determine proper under the peculiar circumstances of such case, but nothing herein shall be construed to grant such court the power to impose a fine in excess of fifty dollars ($50.00) upon any citizen of this state and the court shall have no jurisdiction of the trial of misdemeanors for which the minimum punishment is a fine of more than fifty dollars ($50.00).”

T.C.A. Sec. 40 423 is a procedural statute prescribing the mandatory duty of the general sessions judge to advise a defendant brought before the court of his constitutional rights. It authorizes the court to hear cases as provided in Sec. 40 118, which vests jurisdiction in the court of general sessions to try, and render final judgment in all misdemeanor cases where the person charged with such misdemeanor enters a plea of guilty in writing, or requests a trial upon the merits and expressly waives indictment, etc.

The general sessions judge did not have jurisdiction in this case to do more than hold a preliminary examination to determine if there was probable cause to believe defendant was guilty of the charged offense, and if so to bind him over for appropriate action by the grand jury. T.C.A. Sec. 39 -3802 sets out specifically as follows:

“Escape or attempt to escape from penitentiary — Penalty.—If any inmate serving a term under the direct or indirect custody and supervision of the department of correction, or other state division or agency, or on furlough granted pursuant to § 41 356, shall escape or attempt to escape, he shall be indicted for an escape, and on conviction, be punished by imprisonment in the penitentiary for a term of one (1) to five (5) years to commence from and after the expiration of the original term.”

There is nothing to be found in any statute conferring the jurisdiction on general sessions judges of this state authorizing them to reduce the charge and assess a penalty as was done in this case. Dunbar v. State, 4 Tenn.Cr.App. 310, 470 S.W.2d 846.

In the order sustaining the motion to strike and dismiss the petition for writ of habeas corpus, the trial judge refers to T.C.A. Sec. 40 3809 and apparently considered this matter under the provisions of the Post-Conviction Procedure Act. We have previously restated the material parts of the trial court’s order dismissing the petition. The most pertinent reference is that the court’s findings were based on the evidence presented. We have no evidence before us of the events which took place in the general sessions court on the original conviction, nor, so far as this record indicates, did the trial judge. We are at the same disadvantage regarding what may or may not have taken place in the trial court in the absence of any record upon which we can make a reasonable determination. As we said in Hendon v. State, (Tenn.Cr.App.), 489 S.W.2d 271:

“And in Snell v. United States, 174 F.2d 580 (10 Cir.1949), from which our Supreme Court quoted approvingly in Cogdell v. State [193 Tenn. 261, 246 S.W.2d 5], supra, and in Glasgow v. State [224 Tenn. 626, 461 S.W.2d 25], supra, the Court said:
‘The right to the assistance of counsel is one of substance, and it is not satisfied by mere legalistic formality. Willis v. Hunter, 10 Cir., 166 F.2d 721, certiorari denied, 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772; Fields v. Hunter, 10 Cir., 167 F.2d 547. It is the duty of the trial judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the constitutional right at every stage of the proceedings. That protecting duty imposes upon the trial judge the responsibility of determining whether there is an intelligent and competent waiver by the accused. To discharge that duty, the court must investigate as long and as thoroughly as the circumstances of the case reasonably demand. The fact that an accused may state that he is informed of his right to counsel and desires to waive such right does not automatically end the responsibility of the court. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309.’ ”

Our Supreme Court said in State v. Coleman, Tenn., 519 S.W.2d 581: “A defendant may waive his constitutional right to be represented by counsel, where such waiver of right to counsel is made competently and intelligently.” The citations following that comment in State v. Coleman, supra, are an excellent source of authority on that point.

The trial judge was correct in his analysis of the condition of the law in this state in reference to the prematurity of the petition. This court said in Pulley v. Hunt, 1 Tenn.Cr.App. 278, 440 S.W.2d 622, that where a respondent’s right to detain under valid sentences is not challenged, a petitioner would not be entitled to immediate release even if the challenged sentence was void, citing Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 as authority for this rule. This is the present state of the law in Tennessee which seems to be somewhat eroded by the United States Supreme Court decisions in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439; Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426.

It is apparent his honor the trial judge should have granted an evidentiary hearing, however, to remand the case at this stage of the proceedings for an eviden-tiary hearing would not resolve its expeditious conclusion. We have determined that the general sessions judge was in error in reducing the charge and assessing the penalty which he did. Having made this determination an evidentiary hearing could only delay matters. The trial judge can find no more than we have already determined to be the law of the case. There is no bar to a retrial in a proper forum. State ex rel. Underwood v. Brown, 193 Tenn. 113, 244 S.W.2d 168; Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150; State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244; Dunbar v. State, supra. Therefore, the ease is remanded to the Criminal Court of Knox County with directions to remand to the Court of General Sessions for Knox County, Tennessee, for appropriate action in accordance with T.C.A. Sec. 39 3802

RUSSELL and DUNCAN, JJ., concur.


text:
    Allen SWAFFORD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 21, 1975.
    O. W. McKenzie, James W. McKenzie, Dayton, for appellant.

      R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pikeville, for appellee.
   OPINION

O’BRIEN, Judge.

This is an appeal from judgment on a jury verdict in the Criminal Court of Rhea County, finding defendant guilty of unlawful carnal knowledge of a female under twelve years of age. Sentence was fixed at twenty years in the penitentiary.

By Assignment No. 1 it is contended the testimony preponderates in favor of the innocence against the verdict of guilt found by the jury; and by No. 7 it is said there was not any reliable testimony introduced sufficient to convict defendant.

The evidence in this case came through the unequivocal testimony of the two minor children of the defendant, one of whom he had foi’ced into participating in sexual intercourse. Although corroboration is not required in a case of this nature, Curtis v. State, 167 Tenn. 427, 70 S.W.2d 363, the testimony of the children was corroborated by that of a police officer to whom a complaint was made, by the physician who examined the child and found physical condition of her sexual parts indicated she had been sexually assaulted within the previous ten or twelve hours, and by introduction of her blood stained panties into evidence, which she stated she had worn immediately subsequent to the intercourse.

The defendant took the stand and denied his guilt of the offense, but says he was intoxicated and did not remember any of the events which occurred on the night of the offense with which he was charged.

He has failed to carry the burden imposed on him on review to show that the evidence preponderates against the verdict of the jury and in favor of his innocence. Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612. The evidence offered by the state adequately established the offense. Walker v. State, 197 Tenn. 452, 273 S.W.2d 707.

The second assignment raises an objection to the conduct of the attorney general in leading the witnesses in the course of the trial.

The victim of the offense was nine years of age and her sister who testified was a year younger. We find no abuse of the trial court’s discretion in permitting leading questions asked of these witnesses. Phipps v. State, Tenn.Cr.App., 474 S.W.2d 154. This rule is sustained by the overwhelming weight of authority in many other jurisdictions. State v. Tenney, 137 Wash. 47, 241 P. 669; People v. Toher, 241 Cal.App.2d 66, 50 Cal.Rptr. 228; State v. Pearson, 258 N.C. 188, 128 S.E.2d 251; State v. Bennett, 158 Me. 109, 179 A.2d 812; State v. Burton, 174 Neb. 457, 118 N.W.2d 502.

Defendant complains of conflicts in the testimony of the assault victim.

We have read the record and do not find any greater conflict in her testimony that one might expect of a nine year old child. Such conflicts as existed, which were not corrected on either direct or cross-examination, are only to be considered insofar as the credibility of the child was concerned and not as to their admissibility.

Defendant says it was error to allow a pair of panties worn by the child to be introduced into evidence over objection of the defendant.

It is within the discretion of a trial judge to admit into evidence articles of clothing worn at the time of the crime by the victim thereof, provided they throw light on some issue, or assist the jury in some material matter, and provided they are properly identified and are in substantially the same condition as at the time of the offense. See Volume 22A, C.J.S. Criminal Law § 713b. We find no abuse of discretion in the admission of this article of clothing.

By his fifth assignment, defendant apparently complains of error in allowing the testimony of a police officer in regard to the complaint made by the child victim. There is no validity to this assignment. Cook v. State, 172 Tenn. 42, 109 S.W.2d 98; Klaver v. State, Tenn.Cr.App., 508 S.W.2d 946.

By the sixth assignment it is said the testimony of the two child witnesses was contradictory of each other.

Our review of this record satisfies us that the testimony of these witnesses was basically the same with only minor discrepancies which were immaterial to the issue of whether or not the defendant made a sexual assault on the victim. Immaterial discrepancies in the statements of witnesses do not affect their credibility, unless there is something to show that they originate in willful falsehood. Vincent v. State, 50 Tenn. 120.

Finally, it is contended that the district attorney general’s conduct in cross-examining a witness and his closing argument, inflamed the minds of the jury and prejudiced them against the defendant.

In each instance where objection was made to the conduct or argument of the attorney general the objection was sustained by the court. The closing argument is not included in the Bill of Exceptions and the assignment in that regard cannot be considered. We find no prejudice to the defendant.

All assignments of error are overruled and the judgment of the trial court affirmed.

RUSSELL and DUNCAN, JJ., concur.


author: SAM D. JOHNSON, Justice. WALKER, Justice STEAKLEY, Justice REAVLEY, Justice

text:
    Benny FARLEY, a minor, by and through his next friend, Charles Ballman, Petitioner, v. M M CATTLE COMPANY, Respondent.
    No. B-4972.
    Supreme Court of Texas.
    July 9, 1975.
    Rehearing Denied Sept. 24, 1975.

      Miller, Gann & Perdue, Ralph K. Miller and Jim M. Perdue, Houston, Edwards, Smith & Associates, Carson Smith, Fair-weather, Hale & Dambold, Charles W. Fair-weather, Amarillo, for petitioner.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, A. B. Hankins, Kolander, Templeton & Hamilton, Robert L. Templeton, Amarillo, for respondent.
   SAM D. JOHNSON, Justice.

This is a suit for damages for personal injuries sustained by Benny Farley when the horse he was riding collided with another horse ridden by a co-worker while they were in the process of rounding up cattle belonging to the M M Cattle Company. At the conclusion of plaintiff’s evidence, the trial court entered a take-nothing judgment against Farley based upon defendant’s motion for instructed verdict. The court of civil appeals affirmed. 515 S.W.2d 697. We reverse the judgment of the court of civil appeals and remand the case to the trial court.

On July 12, 1972 Benny Farley, Danny Beebe, James Guinn and Bunk Farley were rounding up calves from a pasture of the Bear Creek Ranch owned and operated by defendant M M Cattle Company. Bunk Farley is the father of Benny Farley and the foreman of the ranch. On the occasion in question, Danny Beebe and Benny Farley, on horseback, were engaged in moving about fifty calves when one of the calves broke away from the herd. Both Danny Beebe and Benny Farley rode after the calf to bring it back and in so doing the two cowboys ran their horses on either side of the running calf for the purpose of guiding it back to the herd. During this rapidly moving process, the horses of the two cowboys became headed in a direction which, if continued, would result in a collision. Upon discovering the impending peril, Danny Beebe reined his horse to the left away from Farley’s horse. At almost the same instant Danny Beebe attempted to avoid the accident, Benny Farley’s horse struck the side of Danny Beebe’s horse. Benny Farley’s horse fell to the ground and Danny Beebe’s horse stumbled to its knees. Benny Farley was thrown off of his horse and suffered severe personal injuries.

Benny Farley alleged negligence on the part of M M Cattle Company in four respects: (1) in furnishing him a horse which was unsafe for the work which was to be done; (2) in instructing him to use the horse for rounding up cattle under such circumstances as to pose an unreasonable risk of harm to him; (3) in failing to properly supervise the operation; and (4) in failing to furnish him a horse which was suitable for the purpose for which the animal was intended to be used. Benny Farley further alleged that each of the above acts of negligence was a proximate cause of his injuries. In its answer M M Cattle Company pleaded among other things voluntary assumption of the risk, contributory negligence, the fellow servant rule and the doctrine of parental immunity of the plaintiff’s father which would allegedly protect M M Cattle Company as the father’s employer.

Upon conclusion of the plaintiff’s evidence, M M Cattle Company presented a motion for instructed verdict based upon its contention that the evidence submitted by the plaintiff failed to raise a fact issue regarding any of the alleged acts of negligence or proximate cause. The trial court granted the motion, withdrew the case from the jury and entered a take-nothing judgment in favor of defendant M M Cattle Company. The court of civil appeals affirmed, holding that even if there was negligence shown on the part of M M Cattle Company there was no evidence that such negligence was the proximate cause of Benny Farley’s injuries.

Benny Farley brings ten points of error to this court. He contends first that the direct evidence admitted at trial was sufficient to raise issues of negligence and proximate cause for jury determination. He further claims that the trial court improperly excluded admissible evidence which would bear on such issues and argues, alternatively, that this improperly excluded evidence, along with the evidence admitted by the trial court, would be sufficient to raise fact issues of negligence and proximate cause. We agree the direct evidence admitted at trial was sufficient to raise jury questions as to negligence and proximate cause and therefore find it unnecessary to consider his additional and alternative arguments. In reaching this determination we have of course reviewed the evidence in its most favorable light in support of the plaintiffs position. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Constant v. Howe, 436 S.W.2d 115 (Tex.1968); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951).

NEGLIGENCE

It is well established that an employer has certain nondelegable and continuous duties to his employees. Among these are the duty to warn employees as to the hazards of their employment and to supervise their activities, the duty to furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe instru-mentalities with which employees are to work. Leadon v. Kimbrough Brothers Lumber Company, 484 S.W.2d 567 (Tex.1972); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934); Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409 (1934); J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941 (Tex.Civ.App. — Beaumont 1973, writ ref’d n. r. e.); Prunty v. Bland, 454 S.W.2d 881 (Tex.Civ.App. — Houston [1st Dist.] 1970, writ ref’d n. r. e.); Restatement (Second) of Agency §§ 503, 506, 507, 510 (1958). Moreover, in measuring the employer’s duty, the age and experience of the employee must be considered since it may be negligent to furnish a minor with, or fail to supervise the minor in the operation of, a certain instrumentality when to take the same action with a grown man or an experienced employee would not constitute negligence. Beaumont, S. L. & W. Ry. Co. v. Schmidt, 123 Tex. 580, 72 S.W.2d 899 (1934, opinion adopted); Landers v. West Lumber Co., 239 S.W. 195 (Tex.Com.App.1922, opinion adopted); W. E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278 (Tex.Civ.App. — Dallas 1958, writ ref’d n. r. e.); Dial v. Wilke, 127 S.W.2d 379 (Tex.Civ.App. — Amarillo 1939, writ ref’d); Restatement (Second) of Agency § 494 (1958).

All plaintiff’s witnesses, each with considerable experience, testified that in working cattle a well-trained and responsive horse was absolutely necessary. The qualities of a suitable cow horse are that he must have a good disposition, neck rein fairly well, respond to commands, be predictable, dependable, calm and quiet. Each witness testified that a horse which did not possess these qualities would be dangerous in doing cattle work; the danger being directly related to the lack of control over it. A cowboy must have complete control over and response from his cow horse or it is very possible the horse may collide with other horses or with the animals around which it is working.

The horse which Benny Farley was riding the day of the accident possessed none of the qualities of a suitable cow horse. It was foaled in 1967 by a mare placed upon the ranch for general use by Joe Whitten-burg, president of M M Cattle Company. The colt was originally named Cimarron but was assigned the nickname “Crowbar” by Bunk Farley because of its cantankerous disposition. At the time of the accident Bunk Farley had been trying to break and train Crowbar for about a “season and a half.” Bunk described the horse’s response to training as “broncish,” slow and “harder than the usual colt to get along with.” He described the horse as not dependable, nervous, hardheaded and “green broke,” meaning not yet fully trained. He testified that Crowbar did not rein well, had tried to throw him off on previous occasions and had stumbled with him several times. Bunk Farley was the only person who had ever ridden Crowbar. In addition, before Crowbar could be ridden even by him it was necessary to pull him behind a pickup trailer for some distance to warm him up and “take the edge off.”

In addition to Bunk Farley, four other witnesses who had observed Crowbar testified to the horse’s dangerous propensities. According to these witnesses, Crowbar was stubborn, unresponsive, unpredictable and undependable. He was described as a “bronc” who was not fully trained. Several of these witnesses had specifically told Bunk Farley that they felt the horse was dangerous and that Bunk ought to get rid of the horse before he “got somebody hurt.” One of the witnesses testified that on a prior occasion Crowbar had run toward the horse on which the witness was riding in a manner similar to the way Crowbar is alleged to have collided with Beebe’s horse on the occasion in question.

Notwithstanding Bunk Farley’s knowledge of Crowbar’s dangerous nature, that no one else had ever ridden him before and that Crowbar had not been ridden at all for the last sixty to ninety days, on the day in question he directed Benny Farley to use the horse for the purpose of rounding up and moving calves. It was then necessary to pull Crowbar behind a pickup trailer for some distance before he was mounted. The calves to be moved had been on the range for some time, were not accustomed to being around people, were large and described as wild and nervous.

At the time of the accident Benny Farley was fifteen years of age. He had been riding horses since he was approximately four years old and by the time he was six to eight years old he began to help his father with the chores around the ranch. Benny was an experienced rider and described by his co-workers as a “good hand.” Nevertheless, it was admitted he did not have as much experience as a full grown cowboy and that experience was a vital and necessary factor in performing this type of work. At least one witness indicated that inexperienced cowboys should be fully supervised when rounding up wild range calves. However, despite Benny Farley’s lack of experience, he was assigned to round up the calves with Danny Beebe, a boy of approximately the same age as Benny. It is undisputed that at the time of the accident Bunk Farley, the foreman, was not supervising the activities of the two boys.

Considering the known dangerous nature of Crowbar and the necessity for supervision of a boy of Benny’s years in this type of activity, we feel there was sufficient evidence submitted by the plaintiff to raise a fact issue of negligence.

PROXIMATE CAUSE

Proximate cause in Texas consists of two concepts: (1) cause in fact and (2) foreseeability. Both of these elements must be present. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970); Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Ussery v. Ewell Hodges, Inc., 417 S.W.2d 332 (Tex.Civ.App. — Tyler 1967, writ ref’d n. r. e.); Leatherwood Drilling Co. v. TXL Oil Corporation, 379 S.W.2d 693 (Tex.Civ.App. —Dallas 1964, writ ref’d n. r. e.). Proximate cause cannot be established by mere conjecture or guess, but rather must be proved by evidence of probative force. Leatherwood Drilling Co. v. TXL Oil Corporation, supra. Proximate cause, like any other ultimate fact, may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Grossman v. Tiner, 347 S.W.2d 627 (Tex.Civ.App. —Waco 1961, writ ref’d n. r. e.). The problem in the instant case is whether there is evidence from which reasonable minds could draw an inference that either a known dangerous horse or the failure of the foreman to supervise the activities of the young cowboys was the cause in fact of the collision in question. In searching the record for such evidence it must be kept in mind that the plaintiff need not exclude all possibility that the accident occurred other than as he alleges, but rather must show only that the greater probability is that either the nature of the horse or the failure to supervise caused the collision. Birmingham v. Gulf Oil Corporation, 516 S.W.2d 914 (Tex.1974); Burlington-Rock Island R. Co. v. Ellison, 140 Tex. 353, 167 S.W.2d 723 (1943); J. Weingarten, Inc. v. Brockman, 135 S.W.2d 698 (Tex.Com.App.1940, opinion adopted); B. M. & R. Interests v. Snyder, 453 S.W.2d 360 (Tex.Civ.App. — Tyler 1970, writ ref’d n. r. e.); Missouri-Kansas-Texas R. Co. of Texas v. Sanderson, 174 S.W.2d 646 (Tex.Civ.App. — Eastland 1943, writ ref’d w. o. m.). Moreover, whether a particular act of negligence is a cause in fact of an injury has been said to be a particularly apt question for jury determination. Prosser, Law of Torts § 41 at 237 (4th ed. 1971).

The only individuals at the location of the accident were Danny Beebe and Benny Farley. Because of the serious nature of Benny Farley’s injuries he was unable to testify or give any information relative to the event. The only testimony that could be given by anyone who saw or was directly connected with the collision was that of the other young cowboy, Danny Beebe. He testified that when the calf broke away from the herd he and Benny went after it, maneuvering their running horses so that they were on either side of the running calf. The procedure they were using to return the calf to the herd is called “laning” and is admittedly a dangerous procedure. Danny Beebe testified that while they were “lan-ing” the calf back to the herd it became apparent to him that unless there was a change in the course being pursued by the horses a collision would result. Upon this realization he reined his horse away from the calf to the left; his horse responded and veered off in that direction. However, at almost the same time he reined away, he felt Crowbar collide with the right side of his horse and felt Crowbar’s head hit his leg. Danny Beebe’s horse stumbled to his knees and then got up. Danny Beebe then looked to the right and saw Benny Farley’s horse standing over Benny. Danny Beebe testified he did not know what happened to the calf or what Benny Farley did to try to avoid the accident since from the time he reined his horse to the left he was looking in a direction away from the location of Benny Farley and the calf. Other witnesses testified the terrain was flat and there was nothing on the ground over which Crowbar could have stumbled.

Danny Beebe testified that at the time he reined his horse to the left there was sufficient time and distance so that, if Crowbar had gone or reined to the right, the collision could have been avoided. He testified that he did not see whether Benny tried to rein to the right or do anything to avoid the collision; he simply did not see anything that was occurring on or to the other horse. He did, however, state that Benny Farley was a good rider and was the kind of cowboy who knew how to get himself out of a tight situation if his horse responded well to reining. In addition, Bunk Farley gave his opinion, in response to a hypothetical question, that Benny would have reined his horse away in an attempt to avoid a collision in a situation such as that present in the instant case. The testimony of Danny Beebe and Bunk Farley supports an inference that Benny Farley tried to rein Crowbar to the right, away from the collision, at the time of the accident.

Moreover, there was ample testimony regarding the unresponsive and uncontrollable nature of Crowbar and the jury could also infer that the horse failed to respond to Benny Farley’s control causing the collision. The court of civil appeals, however, felt that allowing the jury to draw these inferences from the evidence would be to pile “one presumption upon another presumption.” 515 S.W.2d 697 at 705. We do not agree. First, the office of a true presumption is to invoke a rule of law that compels the jury to reach a conclusion in the absence of evidence to the contrary. Sudduth v. Commonwealth County Mutual Ins. Co., 454 S.W.2d 196 (Tex.1970). See 9 Wigmore on Evidence § 2491 (3d ed. 1940); 1 McCormick & Ray, Texas Evidence § 51 (2d ed. 1956). In the instant case we are not dealing with presumptions but rather with inferences which the jury may, or may not, draw from the evidence. Thus the rule against piling one presumption on another does not apply. We instead must look to the rules relating to inferences and it is well established that a number of inferences may be drawn from a single fact situation. E. g., Peveto v. Smith, 134 Tex. 308, 133 S.W.2d 572 (1939, opinion adopted); Missouri-Kansas-Texas R. Co. of Texas v. Sanderson, supra. The inferences to be drawn in the instant case are, though arising out of a single fact situation, each based on direct evidence admitted at trial. The inference that Benny attempted to rein Crowbar away to avoid a collision is based solely upon direct evidence of Benny Farley’s characteristics as a cowboy. The inference that Crowbar would not respond to Benny’s control, on the other hand, is based entirely upon evidence of Crowbar’s dangerous characteristics.

In addition, as previously indicated, Benny Farley’s allegations of negligence were not limited only to the claim that M M Cattle Company furnished him an unsuitable horse. He also alleged negligence in failing to properly supervise the roundup operation and that this was a proximate cause of the accident. Testimony was offered to show that the “laning” procedure the boys were using was dangerous, but because of their lack of experience they may not have realized the danger. It was emphasized that young boys require more supervision than fully grown, experienced cowboys. The jury could reasonably infer that a prudent foreman would have supervised the boys in their work and that the lack of supervision in the instant case was a proximate cause of the accident.

We believe the inferences arising from the direct evidence were sufficient to allow the case to go to the jury. The trial court thus erred when it directed a verdict for the defendant at the end of the plaintiff’s case.

However, M M Cattle Company presents several defenses which it claims would require us to affirm the judgments of the trial court and the court of civil appeals notwithstanding the error in directing a verdict for the defendant.

M M CATTLE COMPANY’S DEFENSES

M M Cattle Company first argues Benny Farley was contributorily negligent as a matter of law. It is asserted that the procedure of “laning” the calf which the young cowboys were using at the time of the accident is so dangerous as to be negligence as a matter of law. Although there was testimony that this procedure was dangerous, there was also testimony that it was commonly used. We do not feel it could be said as a matter of law that a reasonable fifteen-year-old boy under the same or similar circumstances would not have used this same procedure. See Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481 (1943); Dewhurst v. South Texas Rendering Co., 232 S.W.2d 135 (Tex.Civ.App. — San Antonio 1950, writ ref’d n. r. e.).

M M Cattle Company also seeks to absolve itself of liability by application of the well-established rule that the employer is not liable to an employee for injuries caused by the negligence of another employee when both are engaged in a common employment or enterprise. E. g., Armour & Co. v. Morgan, 108 Tex. 417, 194 S.W. 942 (1917); Sandefur v. Sandefur, 232 S.W.2d 111 (Tex.Civ.App. — Amarillo 1950, writ ref’d). M M Cattle Company claims that even if Benny Farley was not negligent in “laning” the calf certainly Danny Beebe was negligent in doing so, and, thus, Benny Farley’s recovery is barred. For the reasons stated above, we do not believe there is sufficient evidence to establish negligence as a matter of law on the part of either of the boys in “laning” the calf. In addition, it is established that when the master’s negligence is concurrent with that of a fellow servant, the fellow servant rule will not preclude recovery. Fort Worth Elevators Co. v. Russell, supra; Armour & Co. v. Morgan, supra.

M M Cattle Company further argues that the rule of parental immunity which protects Bunk Farley from suit similarly protects Bunk’s employer, M M Cattle Company. We think this argument is foreclosed by this court’s decision in Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.1971). In that case it was determined that the rule of parental immunity would not bar a child’s action against a farming partnership of which the child’s father was a member. It was emphasized in that case that the accident occurred in the conduct of the business activities of the partnership and wholly outside the sphere of the father’s parental duties and responsibilities. This is precisely the situation in the instant case. Bunk Farley, in directing Benny to ride Crowbar and in failing to supervise him in his activities, was acting solely for M M Cattle Company.

ASSUMPTION OF THE RISK

M M Cattle Company contends that Benny Farley assumed the risk of riding Crowbar as a matter of law and thus should be barred from recovery, citing Robert E. McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954) and Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952). This contention presents the defense of volenti non fit injuria or, in other words, voluntary assumption of risk.

Recently, in Rosas v. Buddies Food Store, 518 S.W.2d 534, 538-539 (Tex.1975), Mr. Justice Steakley expressed cogent and compelling reasons supporting the abolishment of the defense of assumption of the risk in negligence cases. Mr. Justice Daniel and this writer favored such action at that time. In a concurring opinion Mr. Justice Walker, joined by Chief Justice Greenhill and Justices Pope, McGee and Denton, pointed out that Rosas did not directly involve assumption of risk. The concurring opinion recites:

“While I do not disagree with all that is said by Mr. Justice Steakley concerning the doctrine of volenti non fit injuria, it is my opinion that we should consider and deal with the doctrine in the context of a case involving that defense.”

In the instant case assumption of the risk is asserted as a defense. This court is now squarely faced with the question of its continued viability. To require the parties to proceed to trial and appeal without making a decision on this critical issue would be an inefficient use of the judicial process and, furthermore, wholly unfair to the parties involved.

We have reconsidered the rationale and reasoning expressed in Rosas and find it persuasive. Particularly compelling is the fact that the Legislature has now adopted comparative negligence and thus evidenced its clear intention to apportion negligence rather than completely bar recovery. Assumption of the risk is compatible with this rationale since that defense operates as a complete bar to recovery.

We therefore hold that for this trial, and henceforth in the trial of all actions based on negligence, volenti non fit injuria —he who consents cannot receive an injury —or, as generally known, voluntary assumption of risk, will no longer be treated as an issue. Rather, the reasonableness of an actor’s conduct in confronting a risk will be determined under principles of contributory negligence. Unaffected will be the current status of the defense in strict liability cases and cases in which there is a knowing and express oral or written consent to the dangerous activity or condition. The reasons expressed for abolishing the defense in negligence cases do not obtain as to these situations.

Since M M Cattle Company’s defenses do not require an affirmance of the trial court’s judgment for the defendant, that judgment must be reversed. Accordingly, the judgments of the trial court and the court of civil appeals are reversed and the ease is remanded to the trial court for a new trial.

WALKER, STEAKLEY and REAVLEY, JJ., dissent with opinions.

WALKER, Justice

(dissenting) in which REAVLEY, J., joined.

I respectfully dissent, because in my opinion there is no evidence to support a finding that any negligence of respondent was a proximate cause of the accident. As pointed out in the majority opinion, the problem here is not one of piling presumption upon presumption. It is only by piling assumption upon assumption, however, that the Court is able to say that the evidence supports an inference that the accident probably would not have occurred if petitioner had not been permitted to ride Crowbar. This approach should make it fairly easy to find evidence of proximate cause in any case. In this instance:

(1)The majority first assume that the calf did not turn to the right and into Crowbar’s legs, thereby causing the fall. According to Danny Beebe’s testimony, the calf was running between the two horses before the accident. It was not in front of them. It was not behind them. The two horses were on a collision course, and they were “gaining on the calf.” This means that things were beginning to get rather crowded for the calf, which certainly had every opportunity to be aware of its predicament. With the horses and their riders looming above it on either side and the distance between them rapidly closing, continued running in the same direction offered little promise of either freedom or safety. In view of all the circumstances and since Crowbar did'fall, it seems quite likely that the calf attempted to extricate itself by turning to the right. That this occurred is entirely consistent with all the facts established by the evidence, and the record is completely silent as to what the calf did or did not do just prior to Crowbar’s fall.

(2) The majority further assume that Crowbar did not stumble. While there is testimony that the terrain was flat, horses as well as people occasionally stumble over their own feet. This may seem rather unlikely in the ordinary case, but we do not have an ordinary case here. It is clear from the evidence that unless the calf turned to get out of the way, Crowbar was about to run into or step on it. He may well have stumbled over the calf or he may have stumbled in his efforts to avoid running into the calf.

(3) The majority further assume that petitioner recognized the danger in time to avoid the accident by reining to the right if he had been riding a suitable horse. There is not a scintilla of evidence from which can be inferred that he probably did or probably did not. For aught that appears in the record, petitioner may have been watching the calf so intently that he did not realize the horses were about to collide.

(4) The majority further assume'that petitioner attempted to rein Crowbar to the right. There is no proof of this. Danny did not know what petitioner did. Bunk Farley expressed the opinion that petitioner would have reined his horse away in an effort to avoid a collision, but this answer was given in response to a hypothetical question as to what petitioner would have done where two horses were running together, toward each other, and there was going to be a collision if the riders did not rein off. In ruling on an objection to the question, the trial court made it clear that the answer was admitted for a very limited purpose:

COURT: He’s asking the question — as I view the question — would this young man have — from the knowledge of this witness, would this young man normally have reined the horse. He’s not saying he did or he didn’t. And it’s true that the depositions show that the other person there didn’t know what happened. He’s not saying — he’s just saying, did he have the ability, the knowledge as a cowboy to rein away. Now, he can ask that question. I’m not letting him ask questions about whether he did or he didn’t. I’m just asking, would he have possessed the capabilities of a cowboy to have done that. That’s all I’m permitting.

If the answer is now to be used as proof that petitioner probably did rein to the right, it is necessary to assume, as does the Court here, that the only problem was the fact that the two horses were on a collision course. If Crowbar had stumbled, an experienced rider would doubtless have attempted to pull his head up. If the calf had turned to the right and was attempting to run in front of Crowbar, petitioner would have reined to the left if he thought that was the best way to avoid the calf. The accident could thus have been caused by Crowbar’s response to a left rein rather than his failure to respond to a right rein. It could have been caused by petitioner’s failure to recognize the danger or by Crowbar’s stumbling or by his being tripped by the calf. On the present record one hypothesis is as likely as the other, because we simply do not know and cannot reasonably determine from the evidence what probably caused the accident.

(5) The majority finally assume that the accident probably would not have occurred if petitioner had been riding another horse. This would be a reasonable inference if the assumed facts mentioned above had been proved. On the present record it is at the top of the heap of assumptions, because it must rest on facts assumed by the Court but not established or.fairly inferable from the evidence.

I agree that it is well to eliminate volenti as a separate defense to be considered by the jury in ordinary negligence cases. There are, however, exceptional situations where it should be retained as a device for use by the court, and in my opinion these exceptional situations should be staked out on a case-by-case basis. For example, there are certain “implied consent” cases that do not involve “knowing and express oral or written consent to the dangerous activity or condition” but in which there should be no recovery even though the plaintiff’s conduct might be regarded as reasonable under the circumstances. See Restatement, Second, Torts § 496 C.

I would affirm the judgment of the Court of Civil Appeals.

STEAKLEY, Justice

(dissenting).

I agree with the views expressed in the dissenting opinion of Justice Walker with respect to the problem of proximate cause. In all other respects I am in full accord with and join in the majority opinion.

REAVLEY, Justice

(dissenting).

I agree with what Justice Walker has written. Aside from the proximate cause question, it will be an improvement to have the trier of fact include in the determination of contributory negligence that aspect of fault which we presently label as assumption of risk or volenti non fit injuria. However, there are volenti considerations, beyond the reservations expressed in the Court’s opinion, that bear upon the legal determination of duty.

      . Since Benny Farley’s cause of action arose before the effective date of Article 2212a, Vernon’s Texas Revised Civil Statutes Annotated, comparative negligence is not involved in this appeal.

      . Tex.Rev.Civ.Stat.Ann. art. 2212a.


author: PER CURIAM.

text:
    Lloyd E. ZMOTONY et ux., Petitioners, v. E. Leon PHILLIPS et al., Respondents.
    No. B-5136.
    Supreme Court of Texas.
    July 9, 1975.

      Edward J. Wheeler, Pasadena, for petitioners.
    E. Leon Phillips, Pasadena, for respondents.
   PER CURIAM.

This is a suit by property owners to enforce the following restrictions originally applicable to a 67.61-acre tract in Harris County:

3.Except as herein provided, no part of said tract shall be used for anything other than residential purposes.
2⅜ * ⅜ # ⅜ ⅜
6. No trailer, basement, tent, shack, garage, barn, or other out-building erected or placed on any part of said tract, shall at any time be used as a residence, nor shall any residence of a temporary character be permitted.

Defendants Lloyd E. Zmotony and wife had purchased part of the land and moved a mobile home thereon, placed it on concrete blocks, poured a slab for a patio, and made arangements to obtain water and electricity when the suit was filed. Plaintiffs sought temporary and permanent injunctions commanding defendants to remove the mobile home from the property. The trial court denied a temporary injunction, and plaintiffs appealed. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause with instructions to enter an order compelling defendants to remove the mobile home from the property and temporarily enjoining them from violating the restrictions. 525 S.W.2d 736.

The evidence discloses that another trailer home was situated across the street from the property of one plaintiff for at least three years prior to the filing of this suit. The facts have not been fully developed, and the record does not disclose the location of that trailer home with respect to the 67.61-acre tract or exactly how far it was from defendants’ property. Defendants did not plead waiver, but the trial judge could reasonably have concluded that the restrictions may have been waived. There is also evidence that the expense of removing defendants’ mobile home will be $1,000.00, and plaintiffs made no attempt to show that they will suffer any irreparable damage if the mobile home is allowed to remain on the property pending a trial on the merits. There is a question then as to plaintiffs’ right to prevail, and it does not appear that a temporary injunction is required to prevent injury to them. In these circumstances it is within the discretion of the trial judge to deny interlocutory relief. Manning v. Wieser, Tex.Sup., 474 S.W.2d 448. In view of the conflict between the decision of the Court of Civil Appeals in the present case and our opinion in Manning, the application for writ of error is granted and, without hearing oral argument, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed. Rule 483, Texas Rules of Civil Procedure.


text:
    Kenneth W. COOK, Administrator Texas Alcoholic Beverage Commission, Relator, v. Dee Brown WALKER et al., Respondents.
    No. B-5231.
    Supreme Court of Texas.
    July 16, 1975.
    John L. Hill, Atty. Gen., Paul R. Gavia, Asst. Atty. Gen., Austin, for relator.
    O. H. Harris, Dallas, for respondents.
   PER CURIAM.

On March 26, 1975, Joseph A. Barraco appealed an order of the Administrator of the Texas Alcoholic Beverage Commission cancelling his Package Store Permit, his Retail Dealers Off Premise License, and his Local Cartage Permit. The appeal was timely filed. The judge of the 162nd Judicial District Court of Dallas County stayed the order pending a hearing on appeal and then set the trial for April 4. Later the judge re-set the trial for May 2.

Our decision in this case is governed by our recent opinion in Cook, Administrator, Texas Alcoholic Beverage Commission v. Spears, 524 S.W.2d 290 (Tex.1975). Upon the expiration of ten days from March 26, 1975, the permittee lost his right to'a trial on appeal. Art. 666-14, Tex.Pen.Aux.Laws (1974); see also, Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); Stone v. Liquor Control Board, 417 S.W.2d 385 (Tex.1967); State v. Bush, 151 Tex. 606, 253 S.W.2d 269 (1952).

The clerk of this court is directed to issue a mandamus directed to the respondent Dee Brown Walker, Judge of the 162nd Judicial District Court, ordering him to set aside the order staying the order of the Commission cancelling respondent Barraco’s licenses and ordering the judge to proceed to judgment approving the order of the Commission.


author: REAVLEY, Justice.

text:
    HOUSTON LIGHTING & POWER COMPANY, Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. B-5294.
    Supreme Court of Texas.
    Nov. 12, 1975.
    Rehearing Denied Dec. 10, 1975.

      Anderson, Brown, Orn & Jones, Nelson Jones, Houston, Brown, Maroney, Rose, Baker & Barber, Charlie D. Dye, Austin, for appellant.
    John L. Hill, Atty. Gen., Rex H. White, Jr., Asst. Atty. Gen., Austin, Pulbright & Jaworski, Jefferson D. Giller, Vinson, El-kins, Searls, Connally & Smith, F. J. Coleman, Jr., and J. Evans Attwell, Jerry For-tenberry and Alan Nash, Houston, for ap-pellees.
   REAVLEY, Justice.

Houston Lighting & Power Company brought this suit to set aside and to enjoin enforcement of an order of the Railroad Commission. The order under attack sets a curtailment program for United Texas Transmission Company; that is, the order assigns priorities for the delivery of natural gas by United Texas Transmission in the event and whenever its supply of gas is insufficient to meet the requirements of all of its customers. The trial court upheld the validity of the Commission’s order and denied the injunctive relief sought by Houston Lighting & Power. A direct appeal was brought to this Court pursuant to Article 1738a, Vernon’s Ann.Civ.St., and Rule 499a, Tex.Rules Civ.Proc. We affirm the judgment of the trial court.

Houston Lighting & Power is a public utility which generates electricity at ten plants and serves the domestic and industrial needs for electricity of 700,000 customers in an area comprising 5600 square miles within a 60 mile radius of Houston. Its generation facilities employ turbines driven by steam produced in boilers heated by gas. A contract executed in 1964 bound United Texas Transmission Company (formerly Pennzoil Pipeline Company) to deliver 50% of the gas requirements of Houston Lighting & Power until December 31, 1984. In 1972 that contract was amended to require United Texas Transmission to deliver to Houston Lighting & Power a total of 2.8 trillion cubic feet of gas over the remaining years of the contract in certain quantities prescribed for each year. The contract provides that in the event United Texas Transmission should be unable to supply the full gas requirements of all of its consumers, Houston Lighting & Power’s requirements for generation of electricity sold to domestic consumers shall be satisfied before industrial demands are met.

United Texas Transmission is a gas utility as defined by Article 6050, Vernon’s Ann. Civ.St., and is therefore subject to regulation and control by the Railroad Commission of Texas. On January 5, 1973, the Commission entered an order in Gas Utilities Division Docket No. 489 which set a curtailment program for all intrastate gas utilities in Texas. Then on May 22, 1973, the Commission in Docket No. 502 entered the order which applied specifically to United Texas Transmission, which order is the subject of the attack in this case. The scale of priorities in that order are set forth verbatim in the footnote. The effect of the Commission’s order is to curtail all of the gas supply which Houston Lighting & Power receives from United Texas Transmission at an earlier point than their contract provides. Gas which Houston Lighting & Power needs to generate electricity for its domestic customers cannot be obtained until after United Texas Transmission meets industrial demands to which it has a firm contractual commitment.

The Commission’s order therefore has a serious effect upon Houston Lighting & Power. The only curtailment of supply by United Texas Transmission in 1974 was for its customers using large volumes of gas for boiler fuel, the classification into which Houston Lighting & Power falls. For the months of January, February and March of 1975, Houston Lighting & Power would have suffered 58% reduction in its supply if the provisions of the contract with United Texas Transmission had been followed; but under the terms of the Commission’s order, it suffered 87% reduction in that supply. In 1974 Houston Lighting & Power was forced to burn large amounts of fuel oil, costing some 3V2 million dollars in excess of its contract price for gas. When storage costs and inventory of oil, as well as new higher priced natural gas, and the extra cost of capital investment is counted, Houston Lighting & Power figures that the Commission’s order cost it almost $19,000,-000 in 1974. It concedes that the extra fuel cost can be transferred to its customers but argues that this is a burden which the public should not be forced to bear.

I.

Houston Lighting & Power contends that the Commission has no statutory authority to establish priorities for the supply of United Texas Transmission gas. This contention is answered by the recent opinion of this Court which discussed at length the authority of the Commission: Railroad Commission v. City of Austin, 524 S.W.2d 262 (Tex.1975). The Court there said that the Commission had authority to allocate the supply of a gas utility:

The Commission is authorized to allocate Lo-Vaca’s gas among cities, towns and corporations, and it is already doing so. It also has the jurisdiction and power to allocate TUFCO’s gas, and the gas of all other gas utilities among cities, towns and corporations. 524 S.W.2d 262.

If a gas utility cannot meet the demands for gas, Article 6053 provides that the Commission may require the utility to augment its supply. If additional gas it not available, and the public interest requires it, the Commission may set priorities and may do this according to the end-use to be made of the gas. The Commission is not limited to ratable apportionment of available gas to all customers or potential customers of the gas utility. Homes and hospitals may be kept warm even when brickyards are cold.

II.

Houston Lighting & Power next complains that it is being deprived of valuable property rights when gas to which it is entitled under an express provision of its contract is denied to it by a different priority program imposed by the state. The short answer to this contention is that Houston Lighting & Power made its contract for gas supply at a time when Article 6053 and the other pertinent statutes were in force. If the priority of curtailment were a question to be resolved only according to the respective rights of the parties to the contract, the contract provisions would govern. The shortage of natural gas, however, has become a matter of serious proportions — and not just for two or more contracting parties but for the public welfare and the entire economy. Houston Lighting & Power and United Texas Transmission could not by their agreement set aside the statutes of the state or obstruct enforcement of them. The public interest is paramount and it may be, and must be, protected by the Commission. The statutes so provide.

Though the priorities of contract and Commission order differ, the contract provision is not inconsistent with the superi- or statutory authorization for the regulation of service rendered by gas utilities. The contract should be considered to incorporate the regulatory authority of the Commission as provided by the statutes at the time of the execution of the contract. East Texas Motor Freight Lines v. U. S., 239 F.2d 417 (5th Cir.1956); Hall v. Weller, Hall and Jeffery, Inc., 497 S.W.2d 374 (Tex.Civ.App.1973, writ ref’d n. r. e.); 17A C.J.S. Contracts § 330. A provision in the contract contrary to the superior regulatory authority would have been of no effect, because the statutes could not be nullified and because of the common law rule that a public service corporation cannot deprive itself of its duties to the public by means of contract. Lone Star Gas Co. v. Municipal Gas Co., 117 Tex. 331, 3 S.W.2d 790 (1928); Gulf, C. & S. F. Ry. Co. v. Morris, 67 Tex. 692, 4 S.W. 156 (1887).

III.

The question then becomes whether the Commission’s order is warranted by the public interest. The burden imposed on Houston Lighting & Power must be justified by the benefits to be gained by the public if the order is to stand. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942); City of West University Place v. Ellis, 134 Tex. 222, 134 S.W.2d 1038 (1940).

In earlier days the Commission had to contend with the overproduction of oil and gas, and with the consequences—both above and below ground—upon conservation of those resources. The Supreme Court recognized the complexity of the problem, when combined with considerations of correlative property rights, and held that Commission rules and orders were not to be disturbed by the courts unless those rules or orders were clearly illegal, unreasonable, or arbitrary. Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, motion for rehearing, 87 S.W.2d 1069, 1070 (1935); Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961 (1945). As a society accustomed to the unlimited availability of inexpensive oil and gas adjusts to scarcity and exhaustion of those resources, the Commission faces what appears to be a far more difficult task. This Court must again emphasize the authority and responsibility of the Commission as it makes the many decisions, great and small, required for adjustment and transition. The courts will not be quick to strike down those decisions or use our detached study—usually so less well informed—to pick at imperfections here and there. We will limit ourselves to what we conceive to be our proper role: to see that constitutional and statutory limits are not exceeded and to guard against unreasonable and arbitrary action.

Following the lead of the Federal Power Commission (see 18 C.F.R. 2.78), the Railroad Commission by the particular order under attack as well as by the statewide order of January 5, 1973, has assigned the lowest priority of use to large consumption of gas for boiler fuel in those instances where an alternate fuel can be used. The reasons given are these: the burning of large volumes of gas to heat boilers is an inefficient use of that scarce resource, because it wastes heating capacity of the gas; there are alternative and less precious fuels that can be used for this purpose (e. g., oil and coal); the electric generating industry can better bear the loss of gas and the higher price and cost of conversion to employ another fuel, and the total economy will suffer the least harm.

Tenneco Chemicals, Inc. and Neches Butane Products Company, intervenors in this cause, introduced extensive evidence to prove that the vast petrochemical industry along the Texas Gulf Coast is dependent upon natural gas for raw material (“feedstock gas”) and for precise temperature control and flame characteristics (“process gas”). To that evidence, however, Houston Lighting & Power argues that the Commission’s order simply chooses one industry to pay the bill for higher fuel costs rather than another industry. The relative ability of vital industries and public utilities to cope with the curtailment program is relevant to the ultimate question of the effect of the program upon the public welfare. That is not, however, the controlling consideration in the cause before us. Our supply of natural gas, an irreplaceable resource, is rapidly dwindling. Texans in their homes and stores are dependent today upon this resource for heat—as well as for other uses. Among the natural resources available for fuel, natural gas is peculiarly important. Thirty-six percent of all natural gas consumed in Texas is burned under the giant boilers of the electric generating industry. We cannot say that the Commission was unreasonable or arbitrary in curtailing this consumption of gas and requiring the elec-trie companies to shift to the use of different fuels.

Forty years ago the Legislature prohibited the use of sweet gas for the manufacture of carbon black; the statute withstood attack. Henderson Co. v. Thompson, 300 U.S. 258, 57 S.Ct. 447, 81 L.Ed. 632 (1937). The trial court wrote:

As a matter of marshaling the natural resources of the state, the Legislature has the power when one resource is fitted for two uses and another resource for only one, to classify those natural resources as to the use to be made of them. Henderson Co. v. Thompson, 14 F.Supp. 328, 334 (W.D.Tex.1936).

The Legislature may authorize the Railroad Commission to “handle the details relating to the preservation and conservation of the natural resources of the State.” Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 964 (1945). The Legislature by the statutes mentioned above has conferred authority upon the Commission as to the supply of natural gas of the gas utilities. In the exercise of that statutory responsibility the Commission may classify the fossil fuels according to need and use and may order restrictions upon the gas utilities so as to ease the transition from our present dependency upon natural gas. While the Commission could direct all intrastate gas utilities to restrict their supply for certain end-uses, the Commission could also effect these changes gradually and begin with those gas utilities forced to curtail supply in 1973.

For more than thirty years the Federal Power Commission has generally regarded the consumption of gas as boiler fuel for the generation of electricity as an inferior use. Its denial of certificates of public convenience and necessity, to transport gas interstate for this purpose, has been upheld as effecting conservation of the natural resource. F. P. C. v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961). F.P.C. curtailment plans have been upheld as within its power (F. P. C. v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369, 1972) and its subordination of the use of large volumes of gas as boiler fuel has been upheld as reasonable. State of Louisiana v. F. P. C, 503 F.2d 844 (5th Cir.1974); Arkansas Power & Light Co. v. F. P. C., 517 F.2d 1223 (D.C.Cir.1975); see generally Comment, F.P.C. Natural Gas Allocation: Curtailment in Context, 50 Texas L.Rev. 1370 (1972).

IV.

Houston Lighting & Power also objects to the emergency exemption provision in the Commission’s order which is designed “to prevent the loss of electrical service to residential and other human needs customers because of the recognized shortage of alternate fuels.” The objection is that the conditions of the emergency exemption make it unworkable, because no emergency exemption is available for air conditioning and because no exemption is available if facilities for an alternate fuel could have been installed whether actually installed or not. Though the objection has its merits, we leave the matter as it is for two reasons. First, we would not strike the order or require it to be rewritten for this consideration alone. We think that the Commission can easily achieve the purpose of the emergency provision without allowing itself to be hindered by problems of construction of the terms of its own order. Second, the Commission is always free to rewrite or modify any curtailment order to meet the need and to adjust for changed circumstances.

We agree with the trial court upon the validity of the order. The judgment is affirmed.

      . The clause in the contract between Houston Lighting & Power and United Texas Transmission follows:
      8. IMPAIRMENT OF DELIVERIES
      Buyer specifically recognizes the fact that Seller delivers gas to gas utilities for resale to domestic consumers and to public utility power plants for generation of electricity which is sold to domestic consumers and to other industrial consumers. In the event a shortage of gas renders Seller unable to supply the full gas requirements of all its consumers, then it is mutually agreed that the gas requirements of gas utilities selling gas to domestic consumers shall first be supplied by Seller and next the gas requirements of public utility power plants (including plants of Buyer) using gas for generation of electricity which is sold to domestic consumers, shall be supplied, and if Seller does not have sufficient gas to supply all of the requirements of said power plants, then said requirements shall be supplied rat-ably. The remaining available gas supply shall be prorated by Seller among its other consumers. In instances, such as this, where Seller is supplying less than the full requirements of Buyer, it is the intent of this section that any priority granted hereunder shall run only to that part of the requirements of each ultimate customer as was immediately prior to such shortage being supplied by gas furnished by Seller, directly or indirectly.

      . The Commission’s order in Docket No. 502 requires that if United Texas Transmission Company is unable to meet the needs of all of its customers, it is to deliver according to the following priorities:
      A. Residential, hospitals, schools, churches and other human needs customers.
      B. Small commercial (less than 100 Mcf on an average day).
      C. Large commercial (100 Mcf or more on an average day) and industrial requirements for pilot lights and plant protection.
      D. Small industrial (less than 3,000 Mcf on an average day) requirements for feedstock and process gas needs.
      E. Large industrial (3,000 Mcf or more on an average day) requirements for feedstock and process gas needs.
      F. Industrial requirements not specified in priorities C, D, E, or G.
      G. (1) Boiler fuel and other indirect flame applications (300 Mcf or less on an average day) with alternate fuel capabilities.
      (2) Boiler fuel and other indirect flame applications (more than 300 Mcf on an average day and less than 3,000 Mcf on an average day) with alternate fuel capabilities.
      (3) Boiler fuel and other indirect flame applications (3,000 Mcf or more on an average day) with alternate fuel capabilities.
      H. Interruptible contract sales.

      . The contract did contain this provision: “This agreement is especially made subject to all present or future valid applicable rules, regulations, or orders of any commission or regulatory body having jurisdiction.”

      . The quote is from the Examiner’s Report in Gas Utilities Docket No. 502 dated December 21, 1973, which report was adopted and made a part of the order which is under attack in the present cause.